R7D-Euclid Right Of Way ProjectCOMMISSION ITEM SUMMARY
Condensed Title:
A Resolution To Consider Approval, Following First Reading/Public Hearing, Of A Development Agreement Between The
City Of Miami Beach (City) And Jameck Development, lnc. (Jameck, Developer) For The Design, Development, And
Construction Of Certain Streetscape lmprovement ln The City's Right Of Way, At The Portion Of Euclid Avenue Between
Lincoln Road And Lincoln Lane South (Euclid Right Of Way Project), lncluding, Without Limitation, Removal Of The
Disconnect Vault And Landscape, lnstallation Of New Hardscape, Landscape, Street Lighting, And Closure Of A Portion Of
Euclid Avenue To Vehicular Traffic As Part Of An Extension Of Lincoln Road Pedestrian Mall; Said Project Having A Total
Budget Cost To The City, ln The Total Sum Of $485,821, Appropriated From Miami Beach Redevelopment Agency
(Historic Convention Villageicity Center RDA) Funds; And Further Setting The Second And Final Reading Of The
ent Aqreement For A Time Certain On Julv 23.2014.
Ensure well desioned oual -- lncrease Communitv Satisfaction with Citv Services
pporting Data (Surveys, Environmental Scan, etc.): Based on the 2012 community survey, recently completed capital
projects were highly rated by both residents and businesses.
Item Summary/Recommendation:
The owner of Lincoln Center Associates, LLC, approached the City to enter into a development agreement for the closure
of a portion of Euclid Avenue, between Lincoln Road and Lincoln Lane South, to vehicular traffic, as part of an extension of
the Lincoln Road pedestrian mall, and the construction of Streetscape lmprovements in the City's rightof-way. This item
was discussed at the July 10,2012 Finance and Citywide Projects Commission Committee and subsequently referred to
the September 19,2012 Land Use and Development meeting for further discussion.
The FY 2012113 Capital lmprovement Plan tor 20'12113 through 2016117 was approved at the Septembet 27,2012 RDA
meeting howev.er the Euclid Avenue Street End Project was requested to return to commission for additional discussion. At
the October 24"' 2012 Commission meeting, referring to the results of the Sepiembet 19,2012 Land Use and Development
meeting, the Commission voted to move the discussion of the Euclid Street End project to the full Commission with no
recommendation, with a request for the information on all the projects on the capital projects list.
At the May 8, 2013 Commission meeting the Commission voted to refer the project to the May 13,2013 Finance and
Citywide Projects Commission meeting for further discussion. At the May 13, 2013 Finance and Citywide Projects
Commission Meeting the Committee requested a Letter to Commission on the item and a Resolution for the June 5, 2013
Commission meeting.
On June 5,2013 the City Commission adopted Resolution No.2013-28236 approving the conceptual plan developed for
the Euclid Avenue Street End Project on Lincoln Road. Since the June 2013 Commission meeting, the City staff has been
negotiating with Jameck Development, lnc., Developer, to further develop design concepts, construction schedules, and
cost estimates, plus terms and conditions for a negotiated development agreement.
On October 8, 20'13, the Historic Preservation Board (HPB) of the City, pursuant to an order under HPB File No. 7385,
issued a certificate of appropriateness granting approval of streetscape improvements in the City's right of way, including,
but not limited to, the removal of the disconnect vault and landscape, installation of new hardscape, landscape and street
lighting (collectively "Streetscape lmprovements"), and the closure of a portion of Euclid Avenue to vehicular tratfic, as part
of an extension of the pedestrian mall.
A summary of the proposed development agreement can be found in the attached memorandum and a full copy of the
reement is also attached.
Financial lnformation:
Financial lmpact Summary:Funds for this project were approved by the City Commission as part of the City Center
Center RDA) in the FY 2012113 and FY 2013114 Ca
FY 2012113: - 365 City Center RDA Capital Fund.
FY 2013114:- 365 Citv Center RDA Capital Fund.
Max Sklar, Ext. 61 16
AGENDA ITEM RJ DE MIAMIBEACH D,ffz 6-ll^l{510
TO:
E MIAMIBEACH
CO SSION MEMORANDUM
Mayor Philip Levine and Mem of the City mrssron
FROM: Jimmy L. Morales, City Manager
DATE: June 11,2014
SUBJECT:A RESOLUTION OF THE MAYORhND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, APPROVING, FOLLOWNG FIRST
READING/PUBLIC HEARING, A DEVELOPMENT AGREEMENT BETWEEN
THE CITY AND JAMECK DEVELOPMENT, tNC. (JAMECK OR DEVELOPER)
FOR THE DESIGN, DEVELOPMENT, AND GONSTRUCTION OF CERTAIN
STREETSCAPE IMPROVEMENT IN THE CITY'S RIGHT OF WAY, AT THE
PORTION OF EUCLID AVENUE BETWEEN LINCOLN ROAD AND LINGOLN
LANE SOUTH (EUCLID RIGHT OF WAY PROJECT OR THE PROJECT)
INCLUDING, WITHOUT LIMITATION, REMOVAL OF THE DISCONNECT
VAULT AND LANDSCAPE, INSTALLATION OF NEW HARDSCAPE,
LANDSGAPE, STREET LIGHTING, AND GLOSURE OF A PORTION OF
EUCLID AVENUE TO VEHICULAR TRAFFIC AS PART OF AN EXTENSION OF
THE LINGOLN ROAD PEDESTRIAN MALL; SAID PROJEGT HAVING A
TOTAL BUDGETED COST TO THE CIry, IN THE TOTAL SUM OF $485,821,
WITH ANY ADDITIONAL FUNDS FOR THE PROJECT TO BE COVERED BY
THE DEVELOPER; W|TH SUCH CITY FUNDS TO BE APPROPRIATED FROM
MIAM| BEACH REDEVELOPMENT AGENCY (HISTORIC CONVENTION
VILLAGE/CITY CENTER RDA) FUNDS; AND FURTHER SETTING THE
SECOND AND FINAL READING OF THE DEVELOPMENT AGREEMENT FOR
A TIME CERTAIN ON JULY 23,2014,
ADMI NISTRATION RECOMMENDATION
Adopt the Resolution on First Reading/Public Hearing and Set the Second and Final Reading for
July 23,2014.
KEY INTENDED OUTCOME SUPPORTED
Ensure well designed quality capital projects
lncrease Community Satisfaction with City Services
FUNDING
FY 2012113'. $416,820 - 365 City Center RDA Capital Fund.
FY 2013114'. $69,000 - 365 City Center RDA Capital Fund.
BACKGROUND
511
City Commission Memorandum
Euclid Avenue Street End Project
Jameck Development, lnc. - Development Agreement
June 11, 2014
Page 2 of I
Lincoln Road has been Miami Beach's best known commercial corridor since the City was first
developed. lt was primarily the product of Carl Fisher, who named the street after Abraham
Lincoln. Early developments on Lincoln Road included Carl Fisher's residence, the Lincoln Hotel
(Fisher's first hotel) located at Lincoln Road and Washington Avenue, the Community Church
located on land donated by Carl Fisher at Lincoln Road and Drexel Avenue, and the Carl Fisher
office building (formerly Van Dyke's) at Lincoln Road and Jefferson Avenue. Frequently referred to
as Miami Beach's Fifth Avenue, Llncoln Road contained many of South Florida's and America's
most prominent retailers, including Bonwit Teller, Saks Fifth Avenue, Elizabeth Arden, Doubleday,
and others. The quality and variety of merchandise available on Lincoln Road figured prominently
in Miami Beach promotional literature and was a significant factor in the development of Miami
Beach as a visitor and residential destination.
ln an effort to compete wlth the development of suburban shopping centers, eight blocks of Lincoln
Road were closed to vehiculartraffic in 1959. A pedestrian mall with fountains, flower beds, and
shade/display structures was designed by architect Morris Lapidus, one of the most famous of the
local architects of the time. The design of the mall and the motorized tram system were
considered very progressive and were expected to re-establish Lincoln Road's primacy among
local commercial districts. lt was during this time that many historic buildings and storefronts were
"updated" with the addition of false facades and modern surfaces.
During the 1960's and 1970's, Lincoln Road experienced a decline due to a variety of reasons,
including reduced tourism, increased competition from Bal Harbour and other suburban shopping
centers, as well as the lessening income of surrounding residents. ln 1994 a substantial renovation
and rehabilitation of the original Lapidus design of Lincoln Road was completed. As part of this
renovation, the vehicular access from Alton Road to Lenox Avenue was redesigned, incorporated
a large landscaped median.
ln 1997, the City Commission entered in to a development agreement with UIA Management,
developer of 1111 Lincoln Road, to close the 1100 block of Lincoln Road from Lenox Avenue to
Alton Road, which provided a new pedestrian plaza, extending the pedestrian portion of Lincoln
Road west to Alton Road.
ANALYSIS
The principal of Lincoln Center Associates, LLC, Melvyn Schlesser, which also owns a parking lot
adjacent to Euclid Avenue, between Lincoln Road and Lincoln Lane South, approached the City to
enter into a development agreement for the closure of a portion of Euclid Avenue, between Lincoln
Road and Lincoln Lane South, to vehicular traffic, as part of an extenslon of the Lincoln Road
pedestrian mall, and the construction of Streetscape lmprovements in the City's right-of-way (the
Project).
This item was discussed at the July 10, 2012 Finance and Citywide Projects Commlssion
Committee, and subsequently referred to the September 19, 2012 Land Use and Development
meeting for further discussion. At the Land Use and Development meeting, community members
spoke in support of the Project and the Committee requested that the Administration provide an
analysis of how other projects that are currently scheduled for future funding might be affected if
the proposed Project was not funded for FY 2012113. This analysis was provided in the September
26, 2012 Project Update Letter to Commission (LTC).
The FY 2012113 Capital lmprovement Plan for 2012113 through 2016117 was approved at the
512
City Commisslon Memorandum
Euclid Avenue Street End Project
Jameck Development, lnc. - Development Agreement
June 11 , 2014
Page 3 of 8
September 27, 2012 RDA meeting; however, the Project was requested to return to the City
Commission for additional discussion. The City Commission subsequently requested a re-
evaluation of the priority of spending $416,820 on this Pro1ect against other needs (additional
police, shade structures, pavers on Lincoln Lane, ongoing maintenance etc).
At the Octobet 24t^ 2012 City Commission meeting, based on the review from the September 19,
2012 Land Use and Development meeting, the City Commission requested information on all the
Projects on the City Capital Projects list.
At the May 8, 2013 Commission meeting, the Commission voted to refer the Project to the May 13,
2013 Finance and Cltywide Projects Commission meeting for fu(her discussion.
At the May 13,2013 Finance and Citywide Projects Commission Meeting, the Committee
requested a Letterto Commission on the item and a Resolution forthe June 5,2013 Commission
meeting.
On June 5,2013 the City Commission adopted Resolution No. 2013-28236, approving the
conceptual plan developed for the Project, with funding to come from City Center Redevelopment
District Funds, and further authorized the City Manager to enter into negotiations with the
developer, to design and build the project.
Please note that funds for this Project were approved by the City Commlssion as part of the City
Center Redevelopment District Funds (City Center RDA) in the FY 2012113 and FY 2013114
Capital Budget.
On October 8, 2013, the City's Historic Preservation Board (HPB), pursuant to an order under HPB
File No. 7385, issued a Certificate of Appropriateness granting approval of streetscape
improvements in the City's right of way, including, but not limited to, the removal of the disconnect
vault and landscape, installation of new hardscape, landscape and street lighting (collectively
"Streetscape lmprovements'), and the closure of a portion of Euclid Avenue to vehicular traffic, as
part of an extension of the pedestrian mall. A copy of the slgned HPB Order is attached hereto as
Exhibit "1".
Since the June 2013 Commission meeting, the City staff has been negotiating with Jameck
Development, lnc. (the Developer) to further develop design concepts, construction schedules, and
cost estimates, plus terms and conditions for a negotiated development agreement.
The highlights of the proposed
Parties and Proiect
Owner or City:
Developer:
development agreement, are as follows:
City of Miami Beach
Jameck Development, lnc., a Florida corporation, is the
Developer selected by the City to design, develop and
construct the lmprovements pursuant to a Development
Agreement to be entered into between City and
Developer, in accordance with the Florida Local
Government Development Agreement Act (F.S. 163.3220
- 163.3243).
513
City Commission Memorandum
Euclid Avenue Street End Project
Jameck Development, lnc. - Development Agreement
June 11, 2014
Page 4 of I
Architect:
General Contractor:
Construction Manager:
Project Description:
Project Site:
lmprovements:
R+O Studio, LLC. The Architect shall contract with
Developer to provide professional services for the design
and construction of the lmprovements. Developer's
agreement with Architect shall be subject to.City's review
and approval prior to such agreement being executed
between Developer and Architect.
Developer shall enter into a cost plus with a Guaranteed
Maximum Price contract (GMP Contract) with a contractor
(General Contractor) to construct the lmprovements.
Developer shall select the General Contractor pursuant to
a competitive bidding process which will be developed,
initiated, and overseen by Developer; provided, however,
that the City shall have the right to approve the
recommended General Contractor, which approval shall
not be unreasonably withheld, conditioned, or delayed.
The City shall also have the right to review and approve
the GMP Contract with the selected General Contractor
prior to such Contract belng executed between Developer
and General Contractor.
Developer has selected Arlen Construction Group, lnc.
(Arlen) to act on behalf of Developer as the Project
construction manager. The construction manager fees
shall be paid by Developer.
The closure of a portion of Euclid Avenue, between
Lincoln Road and Lincoln Lane South, to vehicular traffic,
as part of an extension of the Lincoln Road pedestrian
mall, and the construction of streetscape lmprovements in
the City's righlof-way (hereinafter defined as the
lmprovements).
Euclid Avenue, between Lincoln Road and Lincoln Lane
South, Miaml Beach, Florida.
The lmprovements shall consist of the removal of the
planted area where Euclid Avenue intersects with Lincoln
Road, including the electrical disconnect vault, and
relocating the disconnects to the electrical vault in the
Lincoln Center parking lot. The curb, sidewalk and
roadway of Euclid Avenue, from Lincoln Road to the north
side of Lincoln Lane South, will be replaced with a new
designed black and white concrete pattern and new
planting areas will be added. That part of Euclid Avenue
will become a pedestrian mall. A pedestrian drop-off area
shall also be designed for the Project, in a manner to be
reviewed and approved by the City's Public Works
Department.
514
City Commission Memorandum
Euclid Avenue Street End Project
Jameck Development, Inc. - Development Agreement
June 11, 2014
Page 5 of I
Proiect CosUResponsibilities:
Project Cost:
Cost to City:
Cost to Developer:
Developer Liability:
Proiect Desiqn/Gonstruction :
City Design Approvals:
The lmprovements shall be designed, developed, and
constructed substantially in accordance with a Concept
Plan, which has been approved by the City Commission
and the Historic Preservation Board and which shall be
attached and incorporated as an exhlbit to the
Development Agreement.
An inltial budget for the lmprovements is attached as
Exhibit "F" of the Development Agreement.
City shall fund the hard costs of the lmprovements, in an
amount not to exceed $485,821 (City Costs), subject to
approval of the City Commission. City shall not be
responsible forthe disbursement of any sums in excess of
the City Costs, except for approved change orders, which
shall be limited to City requested change orders, force
majeure events, and/or unknown site conditions.
Developer shall fund the soft costs of the lmprovements,
which are estimated to be approximately $100,000
(Developer Costs).
Developer shall not be liable for design or construction
defects except in the event caused by Developer's gross
negligence.
Following execution of the Development Agreement and
City Commission approval of the Project Concept Plan,
City (in its proprietary capacity as Owner) shall have prior
revlew and approval rights of the plans and specifications
for the lmprovements, during the following stages of the
design phase. (a) schematics; (b) design development
drawings; (c) 60% construction drawings; and (d) 100%
construction drawings. ln addition to the aforestated
proprietary review and approvals, Developer shall be
solely responsible for securing any and all final non-
appealable approvals for the lmprovements, as may be
required by the City, in its regulatory capacity.
Upon obtaining the City's approval of the 60%
construction drawings, Developer shall submit the
construction of the lmprovements for bids. lf the bids
exceed the City Costs (i.e. $485,821), then the City
Commission, at its sole discretion, may elect to: (1) have
the Developer (and its Architect and Contractor) value
GMP Contract:
515
City Commission Memorandum
Euclid Avenue Street End Prcject
Jameck Development, lnc. - Development Agreement
June 11, 2014
Page 6 of I
Contract Time:
engineer the Project (at Developer's sole cost and at no
cost to the City) to get it back within the estimated cost to
the Clty; (2) add more money to the Prolect construction
budget (i.e. increase the City Costs); or (3) termlnate the
Development Agreement, without further liability to the
City. Alternatively, Developer shall have the right, but not
the obligation to pay for the costs in excess of the City
Costs, so long as the increased cost of the lmprovements
is not likely to materially increase the future maintenance
costs to be incurred by the City after completion of the
lmprovements, as reasonably determined by the City.
Notwithstanding the preceding, if the City Commisslon
elects to value engineer the Project, and the resulting
value-engineered Project reflects material changes to the
lmprovements from those described in the approved
Concept Plan ("Material changes" shall be determined by
the City Commission, in its sole and absolute discretion),
and the City and Developer are unable to agree on a
modified Project design, then either City or Developer
shall have the right to terminate the Development
Agreement, without further liability.
The lmprovements shall be substantially completed within
six (6) months after the issuance of permit(s) to
commence construction and the Notice to Proceed
(unless extended as a result of force majeure events, or
by mutual agreement of the parties). Final completion of
the lmprovements shall be achieved within thirty (30) days
from the date certified by the Architect as the date of
Substantial Completion.
Warranties, Bonds, lndemnities and Developer shall cause the Architect and Generallnsurance: Contractor to provlde warranties, indemnities and
insurance ln favor of City. Prior to commencement of
construction, Developer shall cause the General
Contractor to furnish City with payment and performance
bonds that identify City and Developer as co-obligees.
City shall be a third party beneflciary to the Developer's
agreement with the Architect and the GMP Contract.
Construction Staging:Construction staging for the Project will be confined to the
Project Site, thereby not impacting adjacent commercial
areas. Developer shall develop a plan for construction
staging in order for access to the adjacent commercial
areas to be continually maintained with only minimal
disruptions. Such plan shall be subject to City's prior
approval, which shall not be unreasonably withheld,
conditioned or delayed.
516
City Commission Memorandum
Euclid Avenue Street End Project
Jameck Development, lnc. - Development Agreement
June 11,2014
Page 7 of I
Underground Utilities:
Construction Schedule:
Environmental Matters:
Art in Public Places ('AlPP"):
E!!!.@[!!g:
Public Benefits:
Other:
Easements:
City, as part of the City Costs, will be solely responsible
for relocating any underground utilities now existing on
the Project Site.
The Project construction schedule shall be provided by
the Developer to the City for the City's approval, which
shall not be unreasonably withheld. Such schedule may
be modified from time to time as a result of an approved
change order.
Developer shall be responsible for conducting
environmental due diligence prior to construction to
assess the environmental site conditions and subsequent
remediation needs, if applicable. City is responsible (at its
cost) for any required environmental remediation within
the Project Site; provided, however that if the cost of such
remediation is, in the sole and reasonable business
judgment of City, economically unfeasible, then City shall
have the right to terminate the Development Agreement,
without any further liability.
As per Chapter 82 of the Miami Beach City Code, an Art
ln Public Places (AIPP) contribution does not apply to the
proposed Project because the lmprovements are defined
as streetscape beautification projects, which include but
are not limited to, one or all of the following elements:
resurfacing, new curbs, gutters, pavers, sidewalks,
landscaping, lighting, bus shelters, bus benches, street
furniture and signage.
The Project will benefit the public in the following ways:
(a) by removing delivery vehicles at the end of Euclid
Avenue just south of Lincoln Road and establishing a
delivery vehicle loadlng zone south of Lincoln Lane South
that will permit such vehicles to travel east or west
through Lincoln Lane South instead of having to back up
and turn around to exit on Euclid Avenue; (b) by providing
the Flamingo Park residents with an entrance to Lincoln
Road off Euclid Avenue; and (c) by creating more space
for performances at the Euclid Oval.
Developer shall grant to the City, upon completion of the
Project, a permanent easement for the new electrical
vault that is being moved onto Developer's property as
part of the lmprovements.
517
City Commission Memorandum
Euclid Avenue Street End Project
Jameck Development" lnc. - Development Agreement
June 11, 2014
Page I of I
Maintenance:Developer shall perform the following maintenance of the
lmprovements: sweeping of the street that is part of the
Project Site, trash removal within the Project Site, and
maintenance of the landscaping in the Project Site (but
not replacement of the landscaping). The balance of the
maintenance shall be performed by the City.
CONCLUSION
The Administration recommends adopting the attached Resolution and Development Agreement, a
copy of which is attached hereto as Exhibit "2", on First Reading/Public Hearing, and setting the
Second and Final Reading for July 23,2014.
iilliJl[fi.t'iffio\Eucrid street End DA Memo docx
518
RESOLUTION NO.
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE
CITY OF MIAMI BEACH, FLORIDA, APPROVING, FOLLOWING
FIRST READING/PUBLIC HEARING, A DEVELOPMENT
AGREEMENT BETWEEN THE CITY AND JAMECK DEVELOPMENT,lNc. (JAMECK OR DEVELOPER) FOR THE DEStcN,
DEVELOPMENT, AND CONSTRUCTION OF CERTAIN
STREETSCAPE IMPROVEMENT IN THE CITY'S RIGHT OF WAY, AT
THE PORTION OF EUCLID AVENUE BETWEEN LINCOLN ROAD
AND LINCOLN LANE SOUTH (EUCL|D RtcHT OF WAy PROJECT
oR THE PROJECT) TNCLUD!NG, WTTHOUT LtMtTATtON, REMOVAL
OF THE DISCONNECT VAULT AND LANDSCAPE, INSTALLATION
OF NEW HARDSCAPE, LANDSCAPE, STREET LIGHTING, AND
CLOSURE OF A PORTION OF EUCLID AVENUE TO VEHICULAR
TRAFFIC AS PART OF AN EXTENSION OF THE LINCOLN ROAD
PEDESTRIAN MALL; SAiD PROJECT HAVING A
TOTAL BUDGETED COST TO THE CITY, IN THE TOTAL SUM OF
$485,821, WITH ANY ADDTTIONAL FUNDS FOR THE PROJECT TO
BE COVERED BY THE DEVELOPER; WITH SUCH CITY FUNDS TO
BE APPROPRIATED FROM MIAMI BEACH REDEVELOPMENT
AGENCY (HISTOR|C CONVENTTON VTLLAGE/C|TY CENTER RDA)
FUNDS; AND FURTHER SETTING THE SECOND AND FINAL
READING OF THE DEVELOPMENT AGREEMENT FOR A TIME
CERTAIN ON JULY 23,2014,
WHEREAS, the City is the owner of certain land located on Euclid Avenue,
between Lincoln Road and Lincoln Lane South, in Miami Beach, Florida (the "Project
Site"); and
WHEREAS, Lincoln Center Associates, LLC, a Florida limited liability company
("Lincoln Center") is an affiliate of Developer and is the owner of certain land adjacent to
the Project Site, on which a parking lot is located (the "Lincoln Center Parking Lot"); and
WHEREAS, on October 8, 2013, the City's Historic Preservation Board (HPB),
pursuant to an order under HPB File No. 7385, issued a Certificate of Appropriateness
granting approval of streetscape improvements in the City's right of way including, but
not limited to, the removal of the disconnect vault and landscape, installation of new
hardscape, landscape and street lighting (collectively "Streetscape lmprovements"), and
the closure of a portion of Euclid Avenue to vehicular traffic, as part of an extension of
the pedestrian mall; and
WHEREAS, on May 13, 2013, the Finance and Citywide Projects Committee of
the City, recommended the approval of the Developer's conceptual plan for the closure
of a portion of Euclid Avenue, between Lincoln Road and Lincoln Lane South, to
vehicular traffic, as part of an extension of the Lincoln Road pedestrian mall, and the
construction of the Streetscape lmprovements in the City's right-of-way located in the
Project Site (the "Conceptual Plan"); and
WHEREAS, on June 5,2013, the Mayor and City Commission approved the
Conceptual Plan and authorized the City Manager to enter into negotiations with
Developer to deslgn and build the Project; and
519
WHEREAS, the City and Developer have negotiated the attached Development
Agreement, and would hereby recommend that the Mayor and City Commission approve
the Agreement on First Reading, as required pursuant to the Florida Local Government
DevelopmentAct, Section 163.3220, et. seq., Florida Statutes; and
WHEREAS, if approved on First Reading, the Administration would further
recommend that the Mayor and City Commission set the public hearing for Second and
Final Reading on July 23.2014.
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City
Commission hereby approve, following First Reading/Public Hearing, a Development
Agreement between the City and Jameck Development, lnc. (Jameck or Developer) for
the design, development, and construction of certain streetscape improvement in the
City's Right Of Way, at the portion of Euclid Avenue between Lincoln Road and Lincoln
Lane South (Euclid Right Of Way Project or the Project), including, without limitation,
removal of the disconnect vault and landscape, installation of new hardscape,
landscape, street lighting, and closure of a portion of Euclid Avenue to vehicular traffic
as part of an extension of the Lincoln Road Pedestrian Mall; said project havlng a
total budgeted cost to the City, in the total sum of $485,821, with any additional funds
for the Project to be covered by the Developer; with such City funds to be appropriated
from Miami Beach Redevelopment Agency (Historic Convention VillageiCity Center
RDA) Funds; and further set the Second And Final Reading of the Development
Agreement for a time certain on July 23,2014.
PASSEDAND ADOPTEDthisthe 11th dayof JUNE,2014.
Philip Levine
MAYOR
ATTEST:
WHEREAS, the proposed Project
$485,821 shall be funded by the City,
Redevelopment Area funds; and
Rafael E. Granado
CITY CLERK
T:\AGENDA\2014\June\TCED\Euclid Street End DA RESO.docx
is estimated to cost $618,000, of which
with funding available from City Center
APPROVEDASTO
FORM &LANGUAGE
& FOR EXECUTION
520
-XFi521
HISTORIG PRESERVATION BOARD
City of Miami Beach, Florida
MEETING DATE: October 8, 2013
FILE NO: 7385
PROPERTY: Euclid Avenue between Lincoln
Road and Lincoln Lane South
LEGAL: A portion of the Public-Rightof-Ways of Euclid Avenue from Lincoln Lane
to Lincoln Road along with a portion of the adjacent Righlof-Ways, all
lying and being in the City of Miami Beach, Florida.
lN RE: - The Application for a Certificate of Appropriateness for streetscape
improl-'pents in the City's rights-of-way. These improvements include,
but are not limited to, the removal of the disconnect vault and landscape,
installation of new hardscape, landscape, and street lightlng and the
closure of a portion of Euclid Avenue to vehicular traffic, as part of an
extension of the pedestrian mall,
ORDER
The applicant, City of Miaml Beach, filed an application with the City of Miami Beach Planning
Department for a Certificate of Appropriateness.
The City of Miami Beach Historic Preservalion Board makes the following FINDINGS OF FACT,
based upon the evidence, information, testimony and materials presented at the public hearing
and which are part of the record for this matter:
A. The subject site is located within the Flamingo Park Local Historic District.
B. Based on the plans and documents submitted with the application, testimony and
522
Page 2 ot 7
HPB File No. 7385
Meeting Date: October 8, 2013
information provided by the applicant, and the reasons set forth in the Planning Department
Staff Report, the project as submitted is consistent with the Certificate of Appropriateness
Criteria in Section 118-564(a)(1) of the Miami Beach Code, is not consistent wilh Certificate of
Appropriateness Criteria'f in Section 118-56a(a)(2) of the Miami Beach Code, and is not
consistent with Certificate of Appropriateness Criteria 'h' in Section 118-56a(a)(3) of the Miami
Beach Code.
C. The project would be consistent with the criteria and requirements of section 118-564 if the
following conditions are met:
1. A revised landscape plan, prepared by a Professional Landscape Architect, registered in
the State of Florida, and corresponding site plan, shall be submitted to and approved by
staff. The species type, quantity, dimensions, spacing, location and overall height of all
plant material shall be clearly delineated and subject to the review and approval of staff.
At a minimum, such plan shall incorporate the following:
a. The proposed planter closest to Lincoln Road, which is intended to preserve the
two large and existing Copper Pod trees shall be significantly enlarged in order to
protect and minimize damage to the existing root system of the trees, in a
manner to be reviewed and approved by Planning Department staff and the
City's Urban Forester consistent with the Certificate of Appropriateness Criteria
and/or the directions from the Board. At a minimum, the overall square footage
of the existinq planting area shall not be reduced,
b. A tree protection plan, ensuring that the root system, trunk, and branches of the
existing Copper Pod trees are fully protected during the construction period, shall
be submitted in a manner to be reviewed and approved by Planning Department
staff and the City's Urban Forester consistent with the Certificate of
Appropriateness Criteria and/or the directions from the Board.
One or more additional large canopy trees shall be introduced within the northern
portion of the southernmost oval planter, in a manner to be reviewed and
approved by Planning Depa(ment staff and the City's Urban Forester consistenl
with the Certificate of Appropriateness Criteria and/or the directions from the
Board.
Small size accent palms trees may be utilized as part of the understory plant
palette composition, but should not prevent or limit the addition of more shade
trees, in a manner to be reviewed and approved by Planning Department staff
and the City's Urban Forester consistent with the Certificate of Appropriateness
Criteria and/or the directions from the Board.
The planter structure shall be constructed of a high quality, natural architectural
concrete, in a manner to be reviewed and approved by Planning Department
staff consistent with the Certificate of Appropriateness Criteria and/or the
directions from the Board.
Any demolition work adjacent to the existing trees shall be performed in close
consultation with the City's Urban Forester.
d.
e.
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Page 3 of 7
HPB File No. 7385
Meeting Date; October 8, 2013
h.
m.
s.The utilization of root barriers and/or Silva Cells, as applicable, shall be clearly
delineated on the revised landscape plan.
A fully automatic inigation system with 1000/o coverage and an automatic rain
sensor in order to render the system inoperative in the event of rain. Right-of-
way areas shall also be incorporated as part of the inigation system.
The proposed black and white concrete paving areas shall be comprised of fully
integral colored concrete and samples shall be provided, in a manner to be
reviewed and approved by Planning Department staff consistent with the
Cedficate of Appropriateness Criteria and/or the directions from the Board.
The applicant shall explore with the Planning Department and Public Works
Department the most appropriate lighting system to be used in the new plaza
area, in a manner to be reviewed and approved by Planning Department staff
consistent wlth the Certificate of Appropriateness Criteria and/or the directions
from the Board. Standard "Paulsen" lights, matching the existing pedestrian
lighting elsewhere on this block of Lincoln Road, shall be used in the new plaza
area if no alternative more appropriate lighting system is identified.
Materials samples shall be provided for all proposed mosaic tiles and grout of the
"decorative mosaic mounds" of the new plaza, in a manner to be reviewed and
approved by Planning Department staff consistent with the Certificate of
Appropriateness Criteria and/or the directlons from the Board.
Any proposed up-lighting of the trees in the new plazaarea shall be provided, in
a manner to be reviewed and approved by Planning Department staff consjstent
with the Certificate of Appropriateness Criteria and/or the directions from the
Board.
The applicant shall verify, prior to the issuance of a Building Permit, the exact
location of all bacKlow prevention devices. Backflow prevention devices shall
not be permitted wilhin any required yard or any area fronling a street or
sidewalk, unless othenivise permitted by the Land Development Regulations.
The location of all backflow prevention devices, and how they are screened from
the right-of-way, shall be clearly indicated on the site and landscape plans and
shall be subject to the review and approval of staff. The fire department
shall require a post-indicator valve (PlV) visible and accessible from the street.
The applicant shall verify, prior to the issuance of a Bullding Permit, the exact
Iocation of all post-indicator valves (PlV), fire department connections (FDC) and
all other related devices and fixtures, which shall be clearly indicated on the site
and landscape plans, in a manner to be reviewed and approved by staff
consistent with the Certificate of Appropriateness Criteria and/or the directions
from the Board.
The applicant shall verify, prior to the issuance bf a Building Permit, the exact
location of all applicable FPL transformers or vault rooms; such transformers and
k.
n.
524
Page 4 of 7
HPB File No. 7385
Meefing Date: October 8, 2013
2.
J,
vault rooms, and all other related devices and fixtures, shall not be permitted
within any required yard or any area fronting a street or sidewalk. The location of
any exterior transformers, and how they are screened with landscape material
from the right-of-way, shall be clearly indicated on the site and landscape plans
in a manner to be reviewed and approved by slaff consistent with the Certificate
of Approprlateness Criteria and/or the directions from the Board.
p. Prior to the issuance of a Certificate of Occupancy, the Landscape Architect for
the project architect shall verify, in writing, that the project is consistent with the
sile and landscape plans approved by the Planning Department for Building
Permit.
A comprehensive annual maintenance program and schedule shall be prepared by the
deslgn consultants and provided to the City for the future successful maintenance of this
plaza area. This maintenance proposal shall be reviewed and approved by all relevant
city agencies.
The applicant may be required to submit a separate analysis for water and sewer
requirements, at the discretion of the Public Works Director, or designee. Based on a
preliminary review of the proposed project, the following may be required by the Public
Works Department:
a. The existing electric utility room shall be relocated to private property and an
easement access shall be provided.
A traffic and neighborhood impact study shall be conducted as a means to
measure a proposed development's impact on transportation and
neighborhoods. The study shall address all roadway Level of Service (LOS)
deficiencies relative to the concurrency requirements of the City Code, and if
required, shall be submitted prior to the issuance of a Building Permit. The flnal
building plans shall meet all other requirements of the Land Development
Regulations of the City Code. The developer shall refer to the most recent City of
Miami Beach's Traffic and Neighborhood lmpact Methodology as issued by the
Public Works Department.
c. Remove/replace sidewalks, curbs and gutters on all street frontages, if
applicable. Unless otherwise specified, the standard color for city sidewalks is
red, and the standard curb and gutter color is gray.
Mill/resurface asphalt in rear a)ley along property, if applicable.
Provide underground utility service connections and on-site transformer location,
if necessary,
Provide back-flow prevention devices on all water services.
Provide on-site, self-contained storm water drainage for the proposed
development.
d.
e.
t.
s.
525
4.
5.
Page 5 of 7
HPB File No. 7385
Meeting Date: October 8, 2013
h. Meet water/sewer concurrency requirements including a hydraulic water model
analysis and gravity sewer system capacity analysis as determined by the
Department and the required upgrades to water and sewer mains servicing this
project.
i. Payment of City utility impact fees for water meters/services.
j, Provlde flood barrier ramps to underground parking or minimum slab elevation to
be at highest adjacent crown road elevation plus 8",
k. Right-of-way permit must be obtained from Public Works.
l. All right-of-way encroachments must be removed.
m. All planting/landscaping in the public right-of-way must be approved by the Public
Works and Parks Departments.
All new and altered elements, spaces and areas shall meet the requirements of the
Florida Accessibility Code (FAC).
At the time of completion of the project, only a Final Certificate of Occupancy (CO) or
Final Certiflcate of Completion (CC) may be applied for; the staging and scheduling of
the construction on site shall take this into account. All work on site must be completed
in accordance with the plans approved herein, as well as by the Building, Fire, Planning,
CIP and Public Works Departments, inclusive of all conditions imposed herein, and by
other Development Review Boards, and any modifications required pursuant to field
inspections, prior to the issuance of a CO or CC. This shall not prohibit the issuance of a
Partial or Temporary CO, or a Partial or Temporary CC.
The Final Order shall be recorded in the Public Records of Miami-Dade County, orior to
the issuance of a Building Permit.
The Final Order is not severable, and if any provision or condition hereof is held void or
unconstitutional in a final decision by a court of competent jurisdiction, the order shall be
returned to the Board for reconsideration as to whether the order meets the criteria for
approval absent the stricken provision or conditlon, and/or it is appropriate to modify the
remaining conditions or impose new conditions.
The conditions of approval herein are binding on the applicant, the property's owners,
operators, and all successorc in interest and assigns.
9. Nothing in this order authorizes a violation of the City Code or other applicable law, nor
allows a relaxation of any requirement or standard set forth in the Clty Code.
lT lS HEREBY ORDERED, based upon the foregoing flndings of fact, the evidence, information,
testimony and materials presented at the public hearing, which are part of the record for this
matter, and the staff report and analysis, which are adopted herein, including the staff
recommendations, which were amended by the Board, that the Certificate of Appropriateness is
GMNTED for the above-referenced project subject to those certain conditions specified in
o.
7.
8.
526
Page 6 of 7
HPB File No. 7385
Meeting Date: October 8, 2013
paragraph C of the Findings of Fact (Condition Nos. 1-9 inclusive) hereof, to which the applicant
has agreed.
PROVIDED, the applicant shall build substantially in accordance with the plans approved by the
Historic Preservation Board, as determined by staff, entitled "Lincoln Road Euclid", as prepared
by R + O Studio, dated 08:12:2013.
When requesting a building permit, the plans submitted to the Building Department for permit
shall be consistent with the plans approved by the Board, modified in accordance with the
conditions set forth in this Final Order. No building permit may be issued unless and until all
conditions of approval that must be satisfied prior to permit issuance, as set forth in this Final
Order, have been met.
The issuance of this Certificate of Appropriateness does not relieve the applicant from obtaining
all other required Municipal, County and/or State reviews and permits, including final zoning
approval. lf adequate handicapped access is not provided on the Board-approved plans, this
approval does not mean that such handicapped access is not required. When requesting a
building permit, the plans submitted to the Bullding Department for permit shall be consistent
with the plans approved by the Board, modified in accordance with the conditions set forth in
thls Order.
lf the Full Building Permit for the project is not issued within eighteen (18) months of the meeting
date at which the original Certificate of Appropriateness was granted, this Certificate of
Appropriateness will expire and become null and void. lf the Full Building Permit for the prolect
should expire for any reason (including but not limited to construction not commencing and
continuing, with required inspections, in accordance with the applicable Building Code), this
Certificate of Appropriateness will expire and become nuli and void.
ln accordance with Section 118-561 of the City Code, the violation of any conditions and
safeguards that are a part of this Order shall be deemed a violation of the land development
regulations of the City Code. Failure to comply with this Order shall subject this Certificate of
Appropriateness to Section 118-564, City Code, for revocation or modification of the Certificate
of Appropriateness.
Dated this l6U *u", Ac)abe{,,^Y,
HISTORIC PRESERVATION BOARD
THE
THOMAS R. MO , AICP
DESIGN AND PRESERVATION
FORTHE CHAIR
527
PageT of7
HPB File No. 7385
Meeting Date: October 8, 2013
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
of the c6rporation. He is p-ersonally known to me. _ ./ t -..2 Y
)
)SS
)
The foregoing instrument was acknowledged before me ni" /6f, au1 offi<*o A-elU 2o/9 by Thomas R. Mooney, Design and Preservation Manager,
Planning Department, City of Miami Beach, Florida, a Florida Municipal Corporatign, qn behalf
p*"1-llo. TEBE8A MAf,IA*- & MY coMl,,lrssroN # oo e28i4o.ffi" ilffiffiffifiiH,lffi
NOTARY PUBLIC
Miami-Dade County, Florida .rn 4 t .-,
My com missio n expires: jf!_!! O
Approved As To Form:
Legal Department:( to'/L'/31
Filed with the Clerk of the Historic Preservation Board on t0- 16. ZoB (
F:\PLAN\$HPB\1 3HPB\Octl 3\7385.ocPo13.Fo.docx
-(^J5( )
528
EXHIBIT "2"
529
This instrument prepared by and
after recording return to:
Adam D. Lustig, Esq.
Bilzin Sumberg Baena Price & Axelrod LLP
200 South Biscayne Blvd., Suite 2500
Miami, Florida 33 13 1-5340
DEVELOPMENT AGREEMENT
Between
CITY OF MIAMI BEACH, FLORIDA
and
JAMECK DEVELOPMENT, INC.
for
STREETSCAPE IMPROVEMENTS AND STREET CLOSURE TO VEHICULAR TRAFFIC
ON EUCLID AVENUE BETWEEN LINCOLN ROAD AND LINCOLN LANE SOUTH
MIAMI 4065935. 6 8057 4t 43097
530
DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT (this "Agreement") is entered into as of the
day of _, 2014 (the "Effective Date"), by and between the CITY OF MIAMI
BEACH, FLORIDA, a municipal corporation of the State of Florida (the "City") and JAMECK
DEVELOPMENT, INC., a Florida corporation ("Developer").
RECITALS:
A. The City is the owner of certain land located on Euclid Avenue, between Lincoln
Road and Lincoln Lane South, in Miami Beach, Florida, more particularly described in the
attached Exhibit "A" (the "Project Site").
B. Lincoln Center Associates, LLC, a Florida limited liability company ("Lincoln
Center") is an affiliate of Developer and is the owner of certain land adjacent to the Project Site
on which a parking lot is located, and more particularly described in the attached Exhibit "B"
(the "Lincoln Center Parking Lot").
C. On October 8,2013, the Historic Preservation Board (HPB) of the City, pursuant
to an order under HPB File No. 7385, issued a certif,rcate ofappropriateness granting approval of
streetscape improvements in the City's right of way, including, but not limited to, the removal of
the disconnect vault and landscape, installation ofnew hardscape, landscape and street lighting
(collectively "Streetscape Improvements"), and the closure of a portion of Euclid Avenue to
vehicular traffic, as part ofan extension ofthe pedestrian mall.
D. On May 13, 2013, the Finance and Citywide Projects Committee of the City,
recommended the approval of the Developer's conceptual plan for the closure of a portion of
Euclid Avenue, between Lincoln Road and Lincoln Lane South, to vehicular traffic, as part of an
extension of the Lincoln Road pedestrian mall, and the construction of Streetscape
Improvements in the City's right-of-way located in the Project Site (the "Conceptual Plan").
E. On June 5,2013, the Mayor and the City Commission approved the Conceptual
Plan in the form attached as Exhibit "C" ard authorized the City Manager to enter into
negotiations with Developer to design and build the Project (as defined below).
F. The City administration staff and Developer met several times to develop design
concepts, construction schedules, costs estimates and terms and conditions for a negotiated
development agreement between the City and Developer.
G. The Mayor of the City and the City Commission in Resolution No.
adopted after two duly noticed public hearings held pursuant to the
Development Agreement Act (as hereinafter defined),, determined that it is in the best interest of
the City to enter into this Agreement with Developer for the closure of a portion of Euclid
Avenue, between Lincoln Road and Lincoln Lane South, to vehicular traffic, as part of an
extension of the Lincoln Road pedestrian mall, and the construction of Streetscape
Improvements in the City's right-of-way, located in the Project Site
MrAMr 406593 5. 6 8057 4t 43097
531
NOW, THEREFORE, in consideration of the mutual terms and conditions, promises,
covenants and payments hereinafter set forth, the City and Developer agree as follows:
ARTICLE 1
DEFINITIONS AND IDENTIFICATIONS
For the purposes of this Agreement and the various covenants, conditions, terms and
provisions which follow, the DEFINITIONS and IDENTIFICATIONS set forth below are
assumed to be true and correct and are agreed upon by the parties.
The above recitals are true and accurate and incorporated into this Agreement by
reference.
Whenever the following terms or pronouns in place of them appear in this Agreement the
intent and meaning shall be interpreted as follows:
1.1 Agreement: Agreement shall mean this Agreement and all addenda, exhibits, and
amendments thereto between the City and the Developer for the Project, all as defined herein.
1.2 AIPP: AIPP means the City's Art in Public Places
1.3 Change Order: A written document ordering a change in the Contract Sum or
Contract Time or a material change in the Improvements.
1.4 City: The City shall mean the City of Miami Beach, a Florida municipai
corporation, having its principal offices at 1700 Convention Center Drive, Miami Beach, Florida
33139, which is a party hereto and/or for which this Agreement is to be performed. In all
respects hereunder, City's performance is pursuant to City's position as the owner of the
Property. In the event City exercises its regulatory authority as a govenrmental body, the
exercise of such regulatory authority and the enforcement of any rules, regulations, laws and
ordinances shall be deemed to have occuned pursuant to City's regulatory authority as a
govemmental body and shall not be attributable in any manner to City as a party to this
Agreement.
1.5 City Commission: City Commission shall mean the goveming and legislative
body of the City.
1.6 City Manaeer: City Manager shall mean the Chief Administrative Officer of the
City.
1.7 Conceptual Plan: Conceptual Plan shall have the meaning set forth in the
Recitals.
1.8 Construction Drawinss: Construction Drawings shall have the meaning set forth
in Section 3.3.
MIA-VI 4065935.680s74t43097
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532
1.9 Construction Manager: Developer has selected Arlen Construction Group, Inc. to
act on behalf of Developer as the Project Construction Manager. The Construction Manager's
fees shall be paid by Developer.
1.10 Construction Phase: The phase of services which constitutes Developer's
administration of the construction of the Project and all activities necessary for the completion of
the Project.
1.1I Construction Schedule: The schedule for the Project, attached as Exhibit "D", as
such schedule may be modified from time to time as a result of a Change Order.
1.12 Consultant: The registered architect, professional engineer, professional land
surveyor, civil engineer, and"/or registered landscape architect who has contracted with
Developer to provide professional services for the design and construction of the Project, and
who is funher licensed by the State of Florida to provide said services. The primary consultant
for this Project shall be the firm of R+O Studio, LLC, a professional services firm duly certified,
Iicensed and registered as an architectural firm, located at 1444 Biscayne Blvd., Suite 215,
Miami, Florida 33132. When the term "Consultant" is used in this Agreement it shall be deemed
to include R+O Studio, LLC, as the primary consultant, or such other consultant selected by
Developer and approved by the City, in writing, in its reasonable discretion, prior to retention by
Developer.
Developer and City herein agree and acknowledge that Developer shall utilize
Consultant's Plans and Specifications for the Project for Developer's construction ofthe Project.
Developer further acknowledges and agrees that Consultant shall render as a Cost of the Work
certain professional services pursuant to this Agreement, including but not limited to, additional
A"/E services, as required; Project construction site supervision and/or observations relative to the
Improvements; and the rendering of approvals, opinions, and decisions, all as more specifically
set forth in the Contract Documents. Developer herein further agrees and shall require any
Consultant services, including but not limited to those referenced in the preceding sentence,
which will be required pursuant to the Contract Documents, to also be binding upon Developer's
Contractor; to the extent as same are binding upon Developer as a party pursuant to this
Agreement. It shall further be Developer's sole and absolute responsibility to assure such
compliance by its Contractor.
Developer and the City agree and acknowledge that the City is an intended third party
benehciary in any contract entered into between Developer and Consultant. Developer shall
therefore submit its final agreement with Consultant to the City, for its review and reasonable
approval, prior to such agreement being executed by and between Developer and Consultant.
Additionally, Developer herein represents to the City that its agreement with Consultant shall
incorporate the terms and conditions of this Agreement and the Contract Documents, and
Developer shall assume sole and absolute responsibility for binding Consultant to same as if
Consultant were a party to this Agreement. The City has approved Developer's selection of R &
O Studio, LLC as the Consultant to design the Improvements.
1.13 Contract Administrator: The Director of the Public Works Department of the
City, or his designee, shall be designated as the Contract Administrator for matters conceming
MIAMT 406593 5.6 80574t43097
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533
this Agreement. The City agrees that a single person shall serve as Contract Administrator under
this Agreement and the City shall notify Developer of the person who sha1l serve as Contract
Administrator.
Developer herein agrees and shall require that any Contract Administrator services which
will be required pursuant to the Contract Documents shall also be binding upon Contractor, to
the same extent as same are binding upon Developer as a party pursuant to this Agreement.
1.14 Contract Documents: This Agreement, as approved by the Mayor and City
Commission and executed by the Mayor and City Clerk; the AIA A11l Standard Form of
Agreement Between Owner and Contractor, the Addendum to ,4'111, the A201, General
Conditions to the Contract of Construction, any approved Change Orders; the performance and
payment bonds; Plans and/or Specifications, the Construction drawings, and any and all other
construction documents; other construction documents such as CPM, Construction Schedule, and
schedule of values; and any other documents the submission of which is required by this
Agreement. When reference is made in the Contract Documents to publications, standards or
codes issued by associations or societies, the intent shall be to specifii the current or adopted
edition of such publication or standard including revision and effect on the date of the contract
execution, notwithstanding any reference to a particular date.
1.15 Contractor (or General Contractor): The contractor shall be selected by
Developer, and shall further be subject to prior approval in writing, by the City in its reasonable
discretion, to pertbrm the Improvements for the Project.
Developer shall enter into a cost plus with a Guaranteed Maximum Price Contract (GMP
Contract) with the City approved Contractor. Developer and City agree and acknowledge that
City is an intended third party beneficiary in any contract entered into between Developer and
Contractor. The Developer shall therefore submit the final GMP Contract to the City, for its
review and approval, prior to such agreement being executed by and between Developer and
Contractor. Additionally, Developer herein represents to City that its agreement with Contractor
shall incorporate the terms and conditions of this Agreement and the Contract Documents, and
Developer shall assume sole and absolute responsibility for binding Contractor to same as if
Contractor were a party to this Agreement.
1 .1 6 Contractor's Fee: Contractor's Fee shall have the meaning set forth in Section 8.6.
1.17 Contract Sum: The Contract Sum is the Cost of the Work. AIso, Developer sha1l
enter into a cost plus with a Guaranteed Maximum Price Contract (GMP Contract) with the City-
approved Contractor.
l I8 Contract Time:Contract Time shall have the meaning set fofih in Section 6.3.
8.1 0.
1.19 Cost of the Work: Cost of the Work shall have the meaning set forth in Section
1.20 CPM Schedule: CPM Schedule shall mean critical path method schedule.
MIAMI 406593 5. 6 8057 41 43097
534
1.21 Defective Work: Defective Work means Work that is not performed in
accordance with the Contract Documents, in violation of code, installed in violation of the
manufacturer's written instructions where the installation has caused new materials to be
detrimentally affected where the life expectancy of the material installed is reduced, or otherwise
installed in a non-workmanlike manner.
1.22 Department: Department shall have the meaning set forth in Section 52.4.
1.23 Develoner: Jameck Deveiopment, Inc., a Florida corporation, its successors and
assigns, is the Developer selected to perform the Improvements pursuarlt to this Agreement, and
is the person, firm or corporation liable for the acceptable performance of the Proj ect.
1.24 Development Agreement Act: Development Agreement Act means the Florida
Local Govemment Development Agreement Act, Section 163.3220, et. seq., Florida Statutes, as
same may be amended from time to time.
1.25 Development Approval: Development Approval means any zoning, rezoning,
conditional use special exception, variance or subdivision approval, concrrrency approval under
Section 163.3180, Florida Statutes, or any other official action of local govemment having the
effect of approving development of land.
1.26 Documents: Documents shall have the meaning set forth in Section 35.1.
1.27 Field Order: A written order issued by the Contract Administrator which orders
minor changes in the work but which does not involve a change in the total cost or time for
performance.
1.28 Final Comnletion: The date certified by Consultant that all conditions of the
permits and regulatory agencies have been met, all constnrction, including corrective and punch
list Work, has been performed, pursuant to the Contract Documents, all administrative
requirements of the Contract Documents have been completed, and City has received from
Developer a release of all liens, consent of surety, release of claims by Developer, corrected as-
built drawings, executed final adjusted Change Order(s), copies of pertinent test results,
correspondence and other necessary documentation, including all warranties, guarantees, and
operational manuals, if any.
1.29 Guaranteed Maximum Price (GMP): Guaranteed Maximum Price shall have the
meaning set fonh in Section 8.1.
1.30 Hazardous Materia-ls: As used in this Agreement "Hazardous Materials" means
any chemical, compound, material, substance or other matter that:
1.30.1 is a flammable, explosive, asbestos, radioactive nuclear medicine,
vaccine, bacteria, virus, hazardous waste, toxic, overtly injurious or potentially injurious
material, whether injurious or potentially injurious by itself or in combination with other
materials;
MIAMI 4065935. 6 8057 4 I 43097
535
1.30.2 is controlled, refened to, designated in or govemed by any Hazardous
Materials Laws;
1.30.3 gives rise to any reporting, notice or publication requirements under
any Hazardous Materials Laws, or
1.30.4 is any other material or substance giving rise to any liability,
responsibility or duty upon the City with respect to any third person under any Hazardous
Materials Law.
1.31 Hazardous Materials Laws: As used in this Agreement, the term "Hazardous
Materials' Laws" means any and all federal, state or local laws or ordinances, rules, decrees,
orders, regulations or court decisions (including the so called "common law"), including without
limitation the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended (42 U.S.C. $$9601 et seq.), the Hazardous Materials Transportation Act, as
amended (49 U.S.C. $$1801 et seq.), and the Resource Conservation and Recovery Act of 1976,
as amended (42 U.S.C. $$6901 et seq.), relating to hazardous substances, hazardous materials,
hazardous waste, toxic substances, environmental conditions on, under or about the Premises,
soil and ground water conditions or other similar substances or conditions.
1.32 Historic Preservation Board or HPB: the Historic Preservation Board of the City
created and established pursuant to the Land Development Regulations or any board or body
which may succeed to its functions.
1.33 Improvements: The improvements to be constructed on the Project Site. The
Improvements shall consist of the removal of the planted area where Euclid Avenue intersects
with Lincoln Road, including the electrical disconnect vault, and relocating the electrical vault
disconnects to the Lincoln Center Parking Lot. The curb, sidewalk and roadway of Euclid
Avenue, from Lincoln Road to the north side of Lincoln Lane South, will be replaced with a new
designed black and white concrete pattem and new planting areas will be added. That part of
Euclid Avenue will become a pedestrian mall. A pedestrian drop-off area shall also be designed
for the Project,, in a manner to be reviewed and approved by the City's Public Works
Deparlment. The Improvements shall be designed, developed, and constructed substantially in
accordance with the Conceptual PIan attached as Exhibit "C", which has been approved by the
City Commission and the Historic Preservation Board.
1.34 Land Development Resulations: Land Development Regulations means Subpart
B (Chapters 1 1 4 through 142) of the Code of the City of Miami Beach, Florida, as the same was
in effect as of the Effective Date of this Development Agreement.
1.35 Lincoln Center: Lincoln Center shall have the meaning set forth in the recitals.
1.36 Notice(s) to Proceed: A written document(s) issued by the Contract
Administrator informing the Developer to officially begin the Project.
1.37 Plans and/or Specifications: The official graphic and descriptive representations
of this Project, which are a part of the Contract Documents.
MIAMI 4065935.6 80574t43097
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536
1.38 Proiect: The Project means the Work described in the Contract Documents and
generally consists of the closure of a poftion of Euclid Avenue, between Lincoln Road and
Lincoln Lane South, to vehicular traffic, as part ofan extension ofthe Lincoln Road pedestrian
mall, and the construction of the Improvements located in the Project Site..
1.39 Project Site: Project Site shall have the meaning set forth in the Recitals.
1.40 Shop Drawines: Drawings, diagrams and schedules (excluding, however, the
CPM Schedule), and other data specially prepared by Contractor or its subcontractors, sub-
subcontractors, manufacturer, supplier or distributor to illustrate some portion of the Work.
1.41 Streetscape Improvements: shall have the meaning set forth in the Recitals.
1.42 Substantial Completion: Subject to the requirements of Article 42, lhe date (or
dates) certified by the Consultant that all conditions of the permits and regulatory agencies have
been met for the City's intended use of the Project (or portions thereof), and all construction has
been performed therein in accordance with this Agreement and the Contract Documents so City
can fully, as opposed to partially, occupy or utilize the Project (or each portion thereof) for its
intended purpose. At a minimum, a Certihcate of Substantial Completion is one of the
requirements for Substantial Completion.
1.43 Surety: The surety company or individual which is bound by the performance
bond and payment bonds with and for Developer and Contractor who is primarily liable and
which surety company or individual is responsible for Contractor's acceptable performance of
the Work under the Contract Documents and for the payment of all debts pertaining thereto in
accordance with Section 255.05, Florida Statutes.
1.44 Utilities: The public or private systems on the Project site for rendering electrical
power, light, heat, gas, water, communication, sewage systems, and the like.
1.45 Work: The construction required by the Conuact Documents, as permitted,
including all labor necessary to produce such construction, and all materials and equipment
incorporated or to be incorporated in such construction.
ARTICLE 2
INTENTION OF AGREEMENT
It is the intent of the Contract Documents to describe a functionally complete Project to
be constructed by Developer in accordance with said Contract Documents. Any Work, materials
or equipment that may reasonably be inferred from the Contract Documents as being required to
produce the intended result will be supplied. When words which have a well-known technical or
trade meaning are used to describe Work, materials or equipment, such words shall be
interpreted in accordance with that meaning. Reference to standard specifications, manuals or
codes of any technical society, organization or association, or to laws or regulations of any
governmental authority, whether such reference be specific or by implication, shall mean the
standard specification, manual, code, laws or regulations in effect at the time of the completion
MIAMI 4065935.6 80574/43097
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537
of design. Applicable laws or codes that may be changed after a permit is issued may result in an
increase in the Contract Time or Contract Sum should additional Work be required on behalf of
the Developer.
ARTICLE 3
CONSTRUCTION
3.1 Consistency with City's Comprehensive Plan and Zonine Resulations. The City
has adopted and implemented the Comprehensive Plan. The City hereby finds and declares that
the provisions of this Agreement dealing with the Project and the Project Site are consistent with
the City's adopted Comprehensive Plan and Land Development Regulations, subject to all
applicable requirements, permits and approvals.
3.2 Historic Preservation Board Approval.
3.2.1
Preservation Board for
approved the Project.
The City
its review
has heretofore submitted an application to the Historic
of the Project, and the Historic Preservation Board has
3.2.2 If at any time after Final Completion it shall be necessary in
connection with the reconstruction or renovation of the Project to apply to the Historic
Preservation Board for its review or approval ofany changes or modifications to the Project, the
City shall be solely responsible for making such application.
3.3 Design of the Project. Developer shall be solely responsible for overseeing and
directing Consultant in the design of the Project, and such design shall be substantially in
accordance with the Conceptual Plan. City's prior *ritten approval of the Plans and
Specifications for the Improvements, in its proprietary and not regulatory capacity, which shall
not be unreasonably withheld, conditioned or delayed, shall be required for the following: (a)
schematics, design development drawings; (b) design development drawings; (c) 60%
construction drawings; and (d) 10002 construction drawings. City shall have thirry (30) days
after receipt of, respectively, 60% construction drawings, and 100% construction drawings
(collectively, the "Construction Drawings") to review and provide Developer with written notice
of its approval or disapproval of the Construction Drawings. If the City fails to provide written
notice to Developer of its approval or disapproval of the Construction Drawings within such time
periods, the City shall be deemed to have approved them. If the City provides Developer with
timely disapproval of the Construction Drawings, Developer shall cause Consultant at its sole
cost and expense and at no cost to *re City, to revise the Construction Drawings in accordance
with the City's objections and submit revised Construction Drawings to the City to address the
City's reasonable objections. City shall have the same time period to review and approve or
disapprove the revised Construction Drawings as set forth above with respect to the original
Construction Drawings. In the event the City disapproves the Construction Drawings, the design
phase and the construction phase set forth in the Construction Schedule and the Contract Time
shall be extended by one day for each day from Developer's receipt of the City's disapproval
notice to the date of the City's approval of the revised Construction Drawings, provided, however
that the Developer shall bear all costs and expenses associated with such revisions, and the City
MrAMI 4065935.6 80574t43097
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shall have no liability to either Developer or Consultant for payment of any costs associated
therewith.
3.4 Public Facilities and Concunency. As the Project involves the creation of a
public pedestrian open space on the existing right of way of Euclid Avenue, between Lincoln
Road and Lincoln Lane South, and there is no enclosed space being constructed, there are no
concurency impacts on the Project. City and Developer anticipate that the Project will be served
by those roadway transportation facilities currentiy in existence as provided by State, County and
local roadways. It is also anticipated that the Project will be served by public transportation
facilities currently in existence, including those provided by Miami-Dade County, the City, and
other govemmental entities as may presently operate public transportation services within the
City. Sanitary sewer, solid waste, drainage, and potable water services for the proposed Project
are expected to be those services currently in existence and olrmed or operated by Miami-Dade
County, the Miami-Dade County Water and Sewer Department, and the City. The Project will
also be serviced by aoy and all public facilities, as such are defined in Section 163.3221(12),
Florida Statutes (1997),, as such are described in the City's Comprehensive Plan, specifically
including, but not limited to, those facilities described in the Infrastructure Element and Capital
Improvements Element therein, a copy of which is available for public inspection in the offices
of the Planning Department.
3.5 Required Development Permits.
3.5.1 In addition to the proprietary review and approvals set forth in Section
3.3 hereof, Developer shall be solely responsible for securing any and all final non-appealable
Development Approvals for the Improvements including, without limitation, those listed in the
attached Exhibit "E", to the extent required by the City, in its regulatory capacity. Where
necessary or desirable the City shall act as the applicant for the Development Approvals.
Developer shall be responsible for processing all applications for the Development Approvals.
Contract Administrator sha-ll reasonably assist Developer in facilitating the prompt issuance of
the Development Approvals. In the event Developer has provided the City with all
documentation necessary to obtain the Development Approvals and the City fails to issue all of
the Development Approvals (other than the Certificate of Completion) prior to the end of the
permit phase set forth in the Construction Schedule, the permit phase and the Contract Time shall
be extended one day for each day from the end ofthe permit phase to the issuance of all ofthe
Development Approvals (other than the Certificate of Completion). AIl fees due in connection
with the Development Approvals shall either be (a) paid by the City in addition to the Cost of the
Work and not as part of the Contract Sum, or (b) waived.
3.5.2 There are no reservations and/or dedications ofland for public purposes
that are proposed under the terms of this Agreement, except as expressly set forth in Section
52.3.
3.5.3 The failure of this Agreement to address a particular permit, condition,
term or restriction shall not relieve Developer of the necessity of complying with the law
governing said permitting requirements, conditions, term or restriction.
MIAMI 406593 5.6 8057 4 I 43097
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ARTICLE 4
CONTRACT DOCUMENTS
4.1 The Contract Documents shall be followed as to Work, material, and dimensions
except when the Contract Administrator may authorize, in his reasonable discretion, in writing,
an exception. Developer shall be entitled to a Change Order for exceptions that result in a time
delay or extra cost.
4.2 Dimensions given in figures are to hold preference over scaled measurements
from the drawings; however, all discrepancies shall be decided upon by the Consultant with
written notice to Contract Administrator. Developer shall not proceed when in doubt as to any
dimension or measurement but shall seek clarification from the Consultant with written notice to
Contract Administrator.
4.3 Developer shall maintain four (4) copies of the Contract Documents; two (2) of
which shall be preserved and always kept accessible at the site to the Contract Administrator or
hisAer authorized representatives.
4.4 This Agreement incorporates by reference the Contract Documents dehned in
Section l 14. In the event of a conflict in the Contract Documents, the documents for the Proj ect
shall have the following order of precedence, beginning with the most important:
1. Change Orders
2. This Agreement and all addenda, exhibits and amendments thereto
3. The Addendum to Al l I between Developer and Contractor
4. The AIA ,4.111 Standard Form of Agreement between Oumer and
Contractor
5. The Plans and/or Specifications (Approved and Permitted)
6. Other Contract Documents
ARTICLE 5
SCOPE OF WORK
5.1 The scope of the Work for the Project is the Work described in the Contract
Documents and generally consists of the removal of the planted area where Euclid Avenue
intersects with Lincoln Road, including the electrical disconnect vault, and relocating the
disconnects to the electricai vault in the Lincoln Center Parking Lot. The curb, sidewalk and
roadway of Euclid Avenue, from Lincoln Road to the north side of Lincoln Lane South, will be
replaced with a new designed black and white concrete pattem and new planting areas will be
added. That part of Euclid Avenue within the Project Site will become a pedestrian mall. A
pedestrian drop-off area shall also be designed for the Project, in a manner to be reviewed and
approved by the City's Public Works Department.
5.2 Contract Administrator will provide, at a minimum, the following services:
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5.2.1 Contract Administrator shall inspect the Work.
5.2.2 Contract Administrator shall have the authority to reject Work that does
not in his reasonable opinion conform to the Contract Documents.
5.2.3 Contract Administrator shall monitor the overall control and expediting
of the construction of the Work to facilitate completion of the Work within the approved time
frame and within the Contract Sum.
5.2.4 Contract Administrator shall develop a punch list or lists of items
requiring corrective action.
5.2.5 Contract Administrator shall attend weekly progress meetings with the
Developer, Consultant and Contractor to review Work progress and resolve issues relating to the
prosecution of the Work.
5.2.6 Contract Administrator shall instruct Developer to commence the Work
by written instructions in the form of a Notice to Proceed issued by Contract Administrator.
5.2.7 Contract Administrator shall initiate or approve Change Orders in
accordance with the terms of this Agreement.
5.2.8 Contract Administrator shall review and approve applications for
payment and submit same to the City for payment.
5.2.9 Contract Administrator shall approve or issue Field Orders.
5.2.1,0 Contract Administrator shall review Shop Drawings.
5.3 Consultant will provide, at a minimum, the following services:
5.3.1 Consultant shall perform all of the architectural and engineering
services necessary to describe, detail and design the Project in accordance with the Contract
Documents.
5.3.2 Consultant shall design the Project so as to comply with applicable
codes and regulations.
5.3.3 Consultant shall prepare the Plans and Specifications, as well as review
and approve (or take other appropriate action upon) submittals such as Shop Drawings, product
data and samples.
5.3.4 Consultant shall prepare construction change directives, if necessary,
and authorize minor changes in the Work as provided in the Contract Documents.
5.3.5 Consultant shall receive and review for compliance with the Contract
Documents all written warranties and related documents required hereby to be assembled upon
MIAMI 4065935. 6 8057 41 43097
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Substantial Completion and issue certificates for payment for Work performed in compliance
with the requirements of the Contract Documents.
5.3.6 Consultant shall review Shop Drawing submittals prepared by the
Contractor and its subcontractors and retum to Contract Administrator for routing.
5.3.7 Consultant shall review and/or respond to Contractor and/or City
inquiries regarding the intent of the Contract Documents with respect to written requests for
information, requests for Change Orders, and other communications between the Developer and
the City requiring Consultant review.
5.3.8 Consultant shall prepare Contract Documents clarifications to address
clarifications regarding the intent of the Contract Documents.
5.3.9 Consultant shall perform specialty site visits by various design
disciplines upon request in the prosecution of the Work.
5.3.10 Consultant shall assist Contract Administrator with the development of
a punch list or list of items requiring corrective action.
5.3.11 Consultant shall attend weekly progress meetings with the Developer,
Contract Administrator, and Contractor to review Work progress and resolve issues relating to
the prosecution of the Work.
5.3.12 Consultant shall have the authority to order or approve deviations from
the Contract Documents, pursuant to approved Change Orders, so long as such deviations do not
result in a change to the Contract Time or cause the Cost of the Work to exceed the Guaranteed
Maximum Price (i.e. Contract Sum). In the event any such deviations are sought, prior written
approval from the Contract Administrator must be obtained.
ARTICLE 6
CONTRACT TIME
6.1 Time is of the essence for Developer's and Contractor's performance of the Work
pwsuant to the Contract Documents. Developer agrees to complete the Work in accordance with
the Construction Schedule and to achieve Substantial Completion of the Work, in accordance
with the Contract Documents, and within the Contract Time, provided the City responds timely
to requests for information, Shop Drawings, andTor decisions and approvals required under this
Agreement.
6.2 Developer shall be instructed to commence the Work by written instructions in
the form of a Notice to Proceed issued by the Contract Administrator.
6.3 The Work shall be Substantially Completed within six (6) months after the City's
issuance of the full building permit and the Notice to Proceed (as may be extended as a result of
force majeure events, mutual agreement of the City and Developer, or by City caused delays).
The Work shall have achieved Final Completion and be ready for final payment, in accordance
MIAMI 4065935.6 8057414309'1
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with Article 10, within thirty (30) days from the date certified by Consultant as the date of
Substantial Completion (the "Contract Time").
ARTICLE 7
DEVELOPER'S RESPONSIBILITY
7.1 The parties acknowledge and agree that the Developer and Contractor will be
responsible for the construction of the Project in accordance with the terms of this Agreement
and the Contract Documents.
7.2 It is Developer's responsibility to cause Contractor to have and maintain
appropriate certificate(s) of competency, valid for the Work to be performed and for all persons
working on the Project for whom a certificate of competency is required.
7.3 Until Final Completion, Developer shall be fully responsible for the performance
of Contractor and Consultant and their respective subcontractors, subconsultants, and any other
person or firm acting under the direction and/or control of Developer, under the terms of this
Agreement. Upon Final Completion, (i) City shall hold only Contractor, Consultant and the other
subcontractors and subconsultants (but not Developer) responsible for the performance of this
Agreement and any warranties arising therefrom, (ii) City shall unconditionally and irrevocably
release, satisry and forever discharge Developer and all of its officers, shareholders, partners,
directors, members, managers) employees or agents of and from any and all actions, causes of
action, claims, demands, losses, costs and expenses, whether direct, contingent or consequential,
liquidated or unliquidated, at law or in equity, relating to the design and construction of the
Project, and (iii) provided full payment has been received by Developer, Developer shall
unconditionally and irrevocably release, satisfy and forever discharge the City, and its officers,
employees, contractors and agents, of and from any and all actions, causes of action, claims,
demands, losses, costs and expenses, whether direct, contingent or consequential, liquidated or
unliquidated, at law or in equity, relating to this Agreement, the Contract Documents, the Project
and"/or the Improvements, and including, but not limited to the design and construction of the
Project and/or the Improvements.
7.4 Developer agrees to bind specifically Contractor and Consultant, and require that
Conffactor and Consultant bind any and all oftheir respective subcontractors and subconsultants,
to the applicable terms and conditions of this Agreement and the Contract Documents for the
benefit of City.
7.5 Developer shall at all times enforce strict discipline and good order among its
Conuactor, employees and consultants, and require Contractor to enforce strict discipline and
good order among its subcontractors at the Project Site; and, fuither, shall not employ (either
directly or through Contractor and Consultant and their respective subcontractors and
subconsultants on the Project) any unfit person or anyone not skilled in the work or services
assigned to him or her.
7.6 Developer shall keep itself fuIly informed of and shall take into account and
comply with, all applicable state and national laws and county and municipal ordinances and
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regulations in any manner affecting those engaged or employed in the Project, or the materials
used or employed in the Project, or in any way affecting the conduct of the Project, and of all
such orders and decrees ofbodies or tribunals having anyjurisdiction or authority over the same
and of all provisions required by law to be made a part of this Agreement, all of which
provisions are hereby incorporated by reference and made a part hereof. If any specification or
contract for this Project is knowingly in violation ofany such law, ordinance, regulation, order or
decree, Developer shall forthwith report the same to the Contract Administrator, in writing.
Developer shall cause all of its agents and employees and Contractor and Consultant, and their
respective subcontractors and subconsultants, to observe and comply with all applicable laws,
ordinances, regulations, orders and decrees (hereinafter, collectively referred to as "Applicable
Laws").
7.7 In the event of a change after the Effective Date of this Agreement in any
Applicable Law (or Applicable Laws) which becomes known to the Developer or the City,
Developer or the City (as applicable) shall advise the Consultant and Contract Administrator, in
writing, and the Consultant and/or Contract Administrator, may initiate a Change Order, the
purpose of which shall be to bring the Project into compliance such Applicable Law (or Laws)
as amended or enacted.
7.8 Developer shall pay as a Cost of the Work all applicable sales, consumer, use and
other taxes required by law in effect as of the Effective Date of the Agreement. Developer is
responsible for reviewing the pertinent State statutes involving State taxes and complying with
all requirements. Notwithstanding the foregoing, the City, in its sole discretion, may provide a
City issued debit card to Contractor in order for Contractor to purchase materials for the Project
on behalf of the City without the payment of sales tax.
7.9 Developer shall contract the services of a licensed general contractor (Contractor)
to execute the Work.
7.10 Developer shall submit a certified, monthly application ibr payment prepared by
Contractor for reviedapproval by the Consultant and Contract Administrator.
7.11 Developer shall provide a location for, attend and participate in weekly
construction progress meetings with the Contract Administrator, Consultant and Contractor.
7.12 Developer hereby agrees to complete the Project and the Improvements described
by the Contract Documents, in accordance with the requirements and provisions of the Contract
Documents.
7.13 Developer agrees to meet with Contract Administrator or his designee at
reasonable times and with reasonable notice.
7.14 Prior to Final Completion of the Project and the Improvements, there shall be
established a record set of Plans and,/or Specifications, on bond paper and on CD Rom,
noncompressed, formatted in the latest version of AutoCAD, which shall bear the approval of
Developer and Contract Administrator. Such approval shall be indicated by the wdtten signature
of both parties. In addition, prior to, and as a condition precedent to the City's issuance of, the
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Notice to Proceed for the commencement of construction services under this Agreement,
Developer shall submit to the Contract Administrator, for Contract Administrator's review and
approval (which approval shall not be unreasonably withheld, conditioned or delayed), a CPM
Schedule for the planning and execution of the Construction Phase of the Project.
7.15 Developer will provide overall technical and management services to assist the
City in maintaining schedules, establishing budgets, controlling costs, achieving quality and
minimizing operational disruptions.
7 .16 If at any time the Developer observes or becomes aware of any fault or defect in
the Project or of any nonconformance with the Contract Documents, Developer will notify the
Consultant and Contract Administrator, and will direct that all reasonable steps be taken to
correct such fault, defect or nonconformance.
7.17 During the course of the Work, Developer shall also be responsible for causing
Contractor to provide quality assurance of the Work in accordance with the Contract Documents.
7.18 Developer shall coordinate all phases of the Work to facilitate completion of the
Project within the Construction and the Guaranteed Maximum Price.
ARTICLE 8
THE CONTRACT SUM
8.1 The Contract Sum, in the amount of $485,821, is the maximum amount, subject to
additions or deletions by approved Change Orders, in accordance with this Agreement, agreed to
by the City and Developer under this Agreement to complete the Work in accordance with the
Contract Documents (the "Guaranteed Maximum Price"). Developer will comply with all
requirements of funding sources provided by City for construction of the Improvements. The
City confirms that the City Commission has approved the funding of the Contract Sum and that
City Commission approval is not required for any approved Change Orders under this
Agreement, so long as the Cost of the Work does not exceed the Guaranteed Maximum Price.
8.2 Developer shall enter into a Cost Plus with a Guaranteed Maximum Price contract
with Contractor. At 60% Construction Drawings, Developer shall submit the costs of the
Improvements for bids. If the bids for the proposed design of the Project exceed the Guaranteed
Maximum Price, then the City Commission, at its sole discretion, may elect to: (a) have the
Developer (and its Consultant and Contractor) value engineer the Project (at Developer's sole
cost and expense, and at no cost to the City) to bring it back into budget, so that the expected cost
of the Improvements will not exceed the Contract Sum; (b) add more money to the Project
construction budget (i.e. increase the Contract Sum); or (c) terminate the Development
Agreement, without further liability to the City or Developer. If the City rejects the value
engineered Project, and the City and Developer are unable to agree on a modified design of the
Project or an increase in the Contract Sum to the extent necessary to complete the Work for such
modified design within thirty (30) business days after the City's rejection of the value engineered
Project, then either the City or Developer shall have the right to terminate this Agreement,
without further liability to each other, by delivering written notice to the other party within ten
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(10) business days after the end of such thirty (30) business day period. Altematively, Developer
shall have the right, but not the obligation, to pay for the costs in excess ofthe Contract Sum,
subject to the prior approval of the City Commission and so long as the increased cost of the
Improvements is not likely to materially increase the future maintenance costs to be incurred by
the City after completion of the Improvements, as determined by the City in its sole discretion.
Notwithstanding the preceding, if the City Commission elects to value engineer the Project, and
the resulting value-engineered Project reflects material changes to the Improvements from those
described in the approved Conceptual Plan ("Material changes" shall be determined by the City
Commission, in its sole and absolute discretion), and the City and Developer are unable to agree
on a modified Project design, then either City or Developer shall have the right to terminate this
Agreement, without further liability.
8.3 The City shall pay the Cost of the Work, as adjusted by approved Change Orders.
The construction contract shall limit the grounds for approved Change Orders to City requested
Change Orders, Developer requested Change Orders approved by the City, force majeure events,
City Building Department field inspector requirements, acts or omissions of the City, errors and
omissions of the Consultant, material and substantial changes in the Work not caused by
Developer, concea.led or unknown conditions, and costs due to emergencies incurred in taking
action to prevent threatened damage, injury or loss in case of an emergency affecting the safety
of persons and property.
8.4 Developer shall fund the soft costs of the Improvements, which are estimated to
be approximately $100,000 in accordance with the estimated budget attached hereto and made a
part hereofas Exhibit "F". Developer shall be responsible for 100% ofthe soft costs, even if
the total sum exceeds $100,000.
8.5 The City shall pay Developer the Contract Sum plus all approved Change Orders
in current funds for Developer's performance of this Agreement through the date of the latest
approved requisition. The initial Contract Sum is the schedule of values which represents the
sum of the Cost of the Work as defined herein. The Contract Sum may be adjusted only by
signed and approved Change Orders issued in accordance with the terms of the Contract
Documents.
8.6 Contractor's Fee. Contractor's Fee shall be set forth in the Contractor's GMP
Contract (the "Contractor's Fee").
8.7 IntentionallyDeleted.
8.8 Adjustments to the Guaranteed Maximum Price on account of changes in the
Work may be determined only in accordance with the terms of this Agreement.
8.9 In calculating adjustments to the Guaranteed Maximum Price, the terms "cost"
and "costs" as used in the above-referenced provisions shall mean the Cost of the Work as
defined below.
8.10 Cost of the Work. The term "Cost of the Work" shall mean costs necessadly
incurred by the Developer, Contractor, Consultant or the City in the proper performance of the
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Work. Such costs shall be at rates not higher than the reasonable and customary price paid for
similar work on Miami Beach, Florida except with prior written consent of the City. The Cost of
the Work shall include only the items set forth in this Article 8, as follows:
8.10. 1 Wages of construction workers directly employed by the Developer or
Contractor to perform the construction of the Work at the site or, with the City's written
approval, at off-site workshops, provided such costs are not incurred as the proximate result of
defects of deficiencies of the Work.
8.10.2 Wages or salaries of the Developer's and Contractor's supervisory and
administrative personnel when stationed at the site as included in the schedule of values shall be
included in the Cost of the Work.
8.10.3 Wages and salaries of the Developer's and Contractor's supervisory or
administrative personnel engaged, at factories, workshops or on the road, in expediting the
production or transportation of materials or equipment required for the Work, but only for that
portion of their time required for the Work and only upon the written consent of the City.
8.10.4 Costs paid or incurred by the Developer or Contractor for training,
taxes, insurance, contributions, assessments, profit sharing, pensions and all other benefits
required by law or collective bargaining agreements or by corporate policy and, for personnel not
covered by such agreements, customary benefits such as sick leave, medical and health benefits,
holidays, vacations and pensions, provided such costs are based on wages and salaries inciuded
in the Cost of the Work.
8.10.5 Payments made by the Developer or Contractor to Consultant or other
design professionals in accordance with the requirements of this Agreement, provided such costs
are not incurred as the proximate result of defects of deficiencies in the Work.
8.10.6 Costs, including transportation and storage, of materials and equipment
incorporated or to be incorporated in the completed construction.
8.10.7 Costs of materials described in the preceding Section 8.6.6 in excess of
those actually installed to allow for reasonable waste and spoilage. Unused excess materials, if
any, shall become the City's property at the completion of the Work or, at the City's option, shall
be sold by the Developer. Any amounts rcalized from such sales shall be credited to the City as
a deduction from the Cost of the Work.
8.10.8 Costs, including transportation and storage, installation, maintenance,
dismantling and removal of materials, supplies, temporary facilities, machinery, equipment, and
hand tools not customarily owned by construction workers, that are provided by the Developer or
Contractor at the site and fully consumed in the performance of the Work; and cost (less salvage
value) of such items if not fully consumed, whether sold to others or retained by the Developer
or Contractor. Cost for items previously used by the Developer or Contractor shall mean fair
market value.
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8.10.9 Rental charges for temporary facilities, machinery, equipment, and
hand tools not customarily owned by construction workers that are provided by the Developer or
Contractor at the site, whether rented from the Developer or Contractor or others, and costs of
transportation, installation, minor repairs and replacements, dismantling and removal thereof.
Rates and quantities of equipment rented shall be subject to the City's prior approval. Rental
charges for equipment owned by the Developer or Cbntractor shall be consistent with the lesser
of those shou.n in the current Associated Equipment Dealers Manual or prevailing commercial
rates. Rental charges from third-parties shall be at cost. Rental rates shall be inclusive of all
charges. Lost equipment shall not be a Cost of the Work.
8.10.10 Costs of removal of debris from the site including loading and dump
charges.
8.10.11 Costs of document reproductions, facsimile transmissions and long-
distance telephone calls, postage and parcel delivery charges, telephone service at the site.
8.10.12 That portion of the reasonable expenses of the Developer's and/or
Contractor's personnel incurred while traveling in discharge of duties connected with the Work.
Without prior ,*T itten consent of the City, travel and living charges including per diems for
Developer's or Contractor's personnel such as the project manager and project superintendent
that do not reside in South Florida shall not be a Cost of the Work.
8.10.13 Costs of materials and equipment suitably stored off the site at a
mutually acceptable location, if approved in advance by the City.
8.10.14 That portion of insurance and bond premiums that can be directly
attributed to this Agreement.
8.10.15 Sales, use or similar taxes imposed by a governmental authority that are
related to the Work at the rates that are in force as of the date of the Agreement.
8.10.16 Fees and assessments for the building permit and for other permits,
licenses and inspections for which the City, Developer or Contractor are required by the
Agreement to pay.
8.10. l7 Fees of laboratories for tests required by the Contract Documents.
8.10.18 Royalties and license fees paid for the use of a particular design,
process or product required by the Contract Documents; the cost of defending suits or claims for
infringement of patent rights arising from such requirement of the Contract Documents; and
payments made in accordance with legal judgments against the Developer or Contractor resulting
from such suits or claims and payments of settlements made with the City's consent.
8.10.19 Deposits lost for causes other than the Developer's or Contractor's
negligence or failure to fulfill a specific responsibility to the City as set forth in the Contract
Documents.
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8.10.20 Other costs incurred in the performance of the Work if and to the extent
approved in advance in writing by the City.
8.10.21 Costs due to emergencies incurred in taking action to prevent
threatened damage, injury or loss in case of an emergency affecting the safety of persons and
property.
8.10.22 The Contractor's Fee.
8.11 Costs Not to be Reimbursed. The Cost of the Work shall not include:
8.11.1 Salaries and other compensation of the Developer's or Contractor's
personnel stationed at the Developer's or Contractor's principal office or offices other than the
site office.
8.11.2 Expenses of the Developer's principal office and offices other than the
site office.
8.1L3 Overhead and general expenses not associated with the Project.
8.11.4 Developer's or Contractor's capital expenses, including interest on the
Developer's or Contractor's capital employed for the Work or bonding (except as set forth in
Section 8.6 above).
8.11.5 Fees due to the Construction Manager.
ARTICLE 9
PROGRESS PAYMENTS
9.1 Proqress Payments.
9.1.1 Developer may make application for payment for Work completed
during the Project at intervals of not more than once a month. The period covered by each
application for payment shall be one calendar month ending on the last day of the month.
9.1.2 Based upon applications for payment prepared by Contractor and
submitted by Developer to Consultant and Contract Administrator and certificates for payment
issued by the Consultant, (a) Contract Administrator shall have ten (10) days after it is presented
with an application for payment to review and approve same or state in writing its reasons for
non-approval; and (b) for approved applications for payment, the City shall make progress
payments on account ofthe Contract Sum to Developer, as provided below and elsewhere in this
Agreement, within thiny (30) days after the submittal of each such application for payment to
Contract Administrator.
9.1.3 With each application for payment, Developer shall submit payro1ls,
receipted invoices or invoices with check vouchers attached, and any other evidence required by
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the City, Contract Administrator or Consultant to demonstrate that cash disbursements already
made by the Developer or Contractor on account of the Cost of the Work.
9.1.4 Each application for payment shall be based on the most recent
schedule of values submitted by Developer in accordance with this Agreement. The schedule of
values shall allocate the entire Guaranteed Maximum Price among the various portions of the
Work. The schedule of values shall be prepared in such form and supported by such data to
substantiate its accuracy as the Consultant may reasonably require. This schedule, unless
objected to by the Consultant or Contract Administrator, shall be used as a basis for reviewing
the applications for payment submitted by Developer.
9.1.5 Applications for payment shall show the percentage of completion of
each portion of the Work as of the end of the period covered by the application for payment. The
percentage of completion shall be the lesser of (1) the percentage of that portion of the Work
which has actually been completed; or (2) the percentage obtained by dividing (a) the expense
that has actually been incurred by Developer on account of that portion of the Work for which
Developer has made or intends to make actual payment prior to the next application for payment
by (b) the share of the Guaranteed Maximum Price allocated to that portion of the Work in the
schedule ofvalues. Substantiating backup including that for general conditions, vendors, rentals
and sub-developers shall be provided to properly support each progress payment.
9.1.6 Subject to other provisions of the Contract Documents, the amount of
each progress payment shall be computed as follows:
(a) take the total of the Cost of the Work and allocate it to each line
item in the approved schedule of values subject to the arnount not exceeding the then percent
completion of the Work for that individual line item; and
(b) subtract the aggregate of previous payments made by the City.
9.1.7 Unless otherwise provided in this Agreement, payments shall be made
on account of materials and equipment delivered and suitably stored at the site for subsequent
incorporation in the Work. If approved, in advance and in writing by the Contract Administrator,
payment may similarly be made for materials and equipment suitably stored off the site at a
location agreed upon in writing. Payment for materials and equipment stored on or off the site
shall be conditioned upon compliance by Developer and Contractor with procedures satisfactory
to the City to establish the City's title to such materials and equipment or otherwise protect the
City's interest, and shall include the costs of applicable insurance, storage and transportation to
the site for such materials and equipment stored off the site.
9.1.8 The City may withhold palrnent of aa application for payment to such
extent as may be reasonably necessaly to protect itself from loss on account of Defective Work.
The City shall only withhold payment of the portion of an application for payment for which it
claims Defective Work. The City shall provide Developer with written notice of its rejection of
an application for payment (or a portion thereof) as a result of Defective Work within ten (10)
days after its receipt of such application for payrnent, failing which, the City shall be deemed to
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have waived its right to withhold payment of such application for payment on account of
Defective Work. Such written notice shall include the City's basis for claiming Defective Work.
If Developer disputes the City's claim of Defective Work, such dispute shall be resolved pursuant
to the terms of Article 11 in this Agreement.
ARTICLE 10
ACCEPTANCE AND F'INAL PAYMENT
10.1 Upon receipt of written notice from Developer that the Work is ready for final
inspection and acceptance, Consultant and Contract Administrator shall, within ten (10) days,
make an inspection thereof. If Consultant and Contract Administrator find the Work acceptable;
that the requisite documents have been submitted and the requirements of the Contract
Documents have been fully performed; and all conditions of the permits and regulatory agencies
have been met, a final certificate of payment shall be issued by Consultant and approved by
Contract Administrator, stating that the requirements of the Contract Documents have been
performed and the Work is ready for acceptance.
10.2 On or before issuance of the final certificate of payrnent, Developer shall deliver
to Consultant the following, evidencing Final Completion:
10.2.1 A final waiver and release, duly executed by the Developer.
10.2.2 An affidavit listing the name, address and telephone number of the
Contractor and of all subcontractors who have performed Work on the Project, with such
subcontractors identified as to the trade involved for the Work, along with amounts paid to said
Contractor and subcontractors in connection with the Project;
10.2.3 Final waiver and reiease, duly executed by the Contractor;
10.2.4 One (1) original set and one (1) copy set of the As-Built Drawings;
10.2.5 Copies of pertinent test results, Assignment of all manufacturer's
warranties, guarantees, City's manuals to the City, bound in a form acceptable to the City; and
10.2.6 Unconditional consent of Contractor's and Developer's surety to final
payment.
10.3 It after the Work has been Substantially Completed, full completion thereof is
materially delayed through no fault of Developer, and Consultant and Contract Administrator so
certify, City shall, and without terminating this Agreement, make payment of the balance due for
that portion of the Work fully completed and accepted. Such payment shall be made under the
terms and conditions goveming final payment, except that it shall not constitute a waiver of
claims.
10.4 Developer's acceptance of final pa).rnent by the City shall constitute a waiver of
all claims by Developer against the City under this Agreement, except those previously made in
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strict accordance with the provisions of the Contract Documents and identified by Developer as
unsettled at the time of acceptance of final payment.
10.5 Developer's final application for payment and the Consultant's final certificate for
pa),rnent shall constitute a representation to the City by the Developer and the Consultant,
respectively, that all conditions precedent to Deveioper's entitlement to final payment have been
excused, waived or satisfied.
1 0.6 The making of final payment shall not constitute a waiver of claims by the City as
against Contractor and Consultant for: (a) faulty or defective Work, (b) failure of the Work to be
in strict accordance with the requirements of the Contract Documents, and (c) terms of all
warranties required by the Contract Documents.
ARTICLE 11
RESOLUTION OF' DISPUTES
11.1 To affempt to prevent all disputes and litigation, it is agreed by the parties hereto
that Consultant shall first decide all questions, claims, difficulties and disputes of whatever
nature which may arise relative to the Contract Documents and fulfillment of this Agreement as
to the character, quality, amount and value of any Work done and materials furnished, or
proposed to be done or fumished under or, by reason of,, the Contract Documents, and
Consultant's estimates and decisions upon all claims, questions, difficulties and disputes shall be
conclusive subject to Developer or the City's objection to the extent provided in Section 11.2.
Any claim, question, difficulty or dispute which cannot be resolved by mutual agreement of City
and Developer shall be submitted to Consultant in writing within ten (10) days of the discovery
of the occurrence. Unless a different period of time is set forth herein, Consultant shall notify
Developer and the City in writing of the decision within ten (10) days from the date of the
submission of the claim, question, difficulty or dispute, unless Consultant requires additional
time to gather information or allow the parties to provide additional information. Any request for
additional time shall extend the time of substantial completion as between City and Developer
for an equal period of time. All nontechnical administrative disputes shall be reasonably
determined by the Contract Administrator pursuant to the time periods provided herein. During
the pendency of any dispute and after a determination thereof, Developer and City shall act in
good faith to mitigate any potential damages including utilization of construction schedule
changes and altemate means of construction.
11.2 In the event the determination of a dispute under this Article is unacceptable to
either party hereto, the pany objecting to the determination must notifu the other party in writing
within twenty-one (21) days of receipt of the written determination. The notice must state the
basis of the objection and must be accompanied by a statement that any Contract Documents
price adjustment claimed is the entire adjustment to which the objecting party has reason to
believe it is entitled to as a result of the determination, if such amount is reasonably calculable at
such time. Within sixty (60) days after receipt of written determination as provided in this
section, the parties may participate in mediation to address all objections to any determinations
hereunder and to attempt to avoid litigation. The mediator shall be mutually agreed upon by the
parties. The mediation shall be non-binding.
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11.3 Pending final resolution of a claim, including mediation, unless otherwise agreed
in writing, Developer and Contractor shall proceed diligenfly with performance of the Contract
Documents and the Ciff shall continue to make payments in accordance with the Contract
Documents, subject to the terms of Article 9 in this Agreement. In no event shall Developer be
required to make any payments for the Work other than the payments provided under Sections
8.4 and 52.1 in the Agreement and any other payments set forth in this Agreement that are
expressly provided to be part of the Cost of the Work.
11.4 Any mediator used shall be certified in accordance with Florida law. Mediation
will be conducted in Miami-Dade County.
1 1.5 The City and Developer shall not be required to submit to arbitration any claim or
dispute arising out of, or in connection with, this Agreement unless the City and Developer
hereafter agree in writing to arbitrate that particular dispute. During the pendency of any
dispute, by mediation, litigation or arbitration (if mutually agreed), provided the City has paid all
monies due on non-disputed items, rlnder the pay applications, Developer and Contractor shall
carry on the Work and maintain the Construction Schedule, without prejudice to any of their
rights, notwithstanding the pendency of any such dispute resolution proceeding, unless otherwise
agreed by the City and Contractor in writing.
ll.6 In connection with any dispute or litigation arising out of this Agreement, the
prevailing party shall be entitled to recover all of its reasonable attorneys' fees and costs incurred,
including all reasonable attorneys' fees and costs for litigation in any bankruptcy proceedings and
at all trial and appellate levels.
ll.7 The Agreement shall be governed and construed in accordance with the laws of
the State of Florida. The Developer and City submit to the jurisdiction and venue of the State
and Federal Courts in and for Miami-Dade County, Florida and such courts shall have the
authority upon proper proof to award compensatory and/or consequential damages, as may be
appropriate.
ARTICLE 12
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ARTICLE 13
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ARTICLE 14
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ARTICLE 15
SECURITY
Developer shall cause Contractor to protect the Work, stored products and construction
equipment from theft and vandalism, and to protect the Project Site from entry by unauthorized
persons.
ARTICLE 16
INSPECTION OF PROJECT
16.1 The Contract Administrator or designee shall at all times have access to the
Project, and Developer shall provide proper facilities for such access, and such access shall be in
accordance with the visitor's rules.
16.1.1 Should the Contract Documents, insfluctions, any laws, ordinances, or
any public authority require any Work for the Project to be specially tested or approved,
Developer shall give to the Contract Administrator timely notice of readiness of the Work for
inspection. If the testing or approval is to be made by an authority other than City, timely notice
shall be given of the date fixed for such testing. Inspections shall be made promptly, and, where
practicable, at the source of supply. Within a reasonable time from execution of this Agreement,
City shall provide a letter Iisting the areas of Work the City will inspect. If defined Work for the
Project should be covered up without required inspection/approval, it must, if required by the
Conffact Administrator, be uncovered for examination and properly restored at Developer's
expense.
16.1.2 Reexamination and retesting of any Work for the Project may be
reasonably ordered by the Contract Administrator; and if so ordered, Developer shall cause such
Work to be uncovered by Contractor. If such Work is found to be in accordance with the
Contract Documents, the City shall pay the cost of reexamination, retesting and replacement. If
such Work is not in accordance with the Contract Documents, Developer shall cause Contractor
to pay such cost.
16.2 The payment of any compensation, regardless of its character or form, or the
giving ofany gratuity or the granting ofany valuable favor by Developer to any inspector other
than its consultant, is forbidden, and any such act on the paft of Developer will constitute a
breach ol this Agreement.
ARTICLE 17
SUPERINTENDENCE AND SUPERVISION
17 .1 The orders of the City are to be given through the Contract Administrator, whose
instnrctions are to be strictly and promptly followed in every case, provided that they are in
accordance with this Agreement. Developer shall cause Contractor to keep on the Project during
its progress a competent supervisor, and any necessary assistants.
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17.2 Developer shall prepare, or cause its Contractor or other designated Contract
Administrator or Contact Administrator representative to prepare, on a daily basis, and keep on
the Project site, a bor.rnd log setting forth at a minimum, for each day: the weather conditions and
how any weather conditions affected progress of the Work, Work performed, equipment utilized
for the Work, any idle equipment and reasons for idleness, visitors to the Project site, labor
utilized for the Work, and any materials delivered to the Project Site. The daily bound log shall
be available for inspection by the Contract Administrator or designee at all times during the
Project.
17.3 If Contractor or Consultant, in the course of the Project, finds any discrepancy
between the Contract Documents and the physical conditions of the site, or any effors or
omissions in the Contract Documents including the Plans and Specifications and notifies
Developer of such discrepancy, it shall be a Developer duty to immediately inform the Contract
Administrator, in writing; and Contract Administrator will promptly verify the same.
17.4 Developer shall coordinate, supervise and direct the Project competently and
efficiently, devoting such attention thereto and applying such skills and expertise as may be
necessary to perform the Project in accordance with the Contract Documents. Developer shall
cause Contractor to be responsible for the means, methods, techniques, safety, sequences and
procedures of construction. Developer shall cause Contractor to give efficient supervision to the
Work, using Developer's and Contractor's best skill, attention, and judgment.
ARTICLE 18
CITY'S RIGHT TO TERMINATE AGREEMENT
18.1 IfDeveloper (a) fails to cause Contractor to begin the construction ofthe Project
within the time specified, or (b) fails to cause Contractor to perform the Project with sufficient
workers and equipment or with sufficient materials to insure the prompt completion of the
Project, in accordance with the Contract Documents and schedules, within the Contract Time, or
(c) fails to cause Contractor to perform the Work suitably and without defects, or (d)
discontinues the prosecution of the Project, except for excused delays in accordance with this
Agreement, or (e) becomes insolvent or be declared bankrupt, or commits any act of bankruptcy
or insolvency, or (t) makes an assignment for the benefit ofcreditors, or (g) shall not carry on the
Project in accordance with the Contract Documents, the City shall give notice in writing to
Developer and the surety of such delay, neglect or default, specifying the same. If Developer,
within a period of ten (10) days after such notice, shall not proceed to commence to rectify such
complaint in accordance therewith and thereafter diligently pursue the resolution of such
complaint, then the City may, upon written certificate from the Contract Administrator of the fact
of such delay, neglect or default and Developer's failure to comply with such notice: (i)
terminate the services of Developer under this Agreement, exclude Developer and Contractor
from site and take the prosecution ofthe Project out ofthe hands ofDeveloper and Contractor, as
appropriate. In such case, Developer shall not be entitled to receive any firrther payment until
the Project is finished. In addition, the City may (ii) enter into an agreement for the completion
of the Project according to the terms and provisions of the Contract Documents or use such other
methods as in its opinion shall be required for the completion of the Project in an acceptable
manner. Developer hereby collaterally assigns its rights under the Contract Documents to the
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City so that upon termination of this Agreement by the City in accordance with the terms of this
paragraph, the assignment of the Contract Documents shall automatically become effective.
Notwithstanding the assignment of the Contract Documents automatically becoming effective,
Developer agrees, upon request of the City, to execute such documentation as may be reasonably
necessary in order to effectuate such assignment; and/or (iii) sue Developer for the damages,
costs and charges incurred by the City which shall be deducted from any monies due or which
may become due to said Developer Actions will be instituted to recover on the posted bonds.
18.2 Upon receipt of a notice of termination pursuant to Sections 18.1 above,
Developer shall promptly discontinue all affected Work unless the notice of termination directs
otherwise and deliver to the City within seven (7) days of termination all data, drawings,
specifications, reports, estimates, summaries and such other information as may have been
required by the Contract Documents whether completed or in process. Compensation shall be
withheld until all documents are provided to the City pursuant to this Article.
ARTICLE 19
DEVELOPER'S RIGHT TO STOP WORK OR TERMINATE CONTRACT
Should Contract Administrator fail to review and approve or state in writing reasons for
non-approval of any application for payment within ten (10) days after it is presented, or if the
City fails either to pay Developer within thirty (30) days after presentation of such application
for payment to Contract Administrator, or to notifu Developer in writing of any objection to the
application for payment, then Developer may, give written notice to the City, through Contract
Administrator, of such delay, neglect or default, specifying the same. If City or Contract
Administrator (where applicable), within a period of seven (7) days after such notice shall not
remedy the delay, neglect, or default upon which the notice is based, then Developer may stop
Work or terminate this Agreement and recover from the City payment for all Work executed and
reasonable expenses sustained therein.
ARTICLE 20
"oREQUAL" CLAUSE
20.1 Whenever a material, article or piece of equipment is identified in the Contract
Documents including drawings (plans) and specifications by reference to manufacturers' or
vendors' names, trade names, catalog numbers, or otherwise, it is intended merely to establish a
standard, and, unless it is followed by words indicating that "no substitution is permitted," any
material, article, or equipment of other manufacturers and vendors which will perform or serye
the requirements of the general design will be considered equally acceptable provided the
material, article or equipment so proposed is, in the opinion of the Consultant and Contract
Administrator:
20.1.1 At least equal in quality, durability, appearance, strength and design;
20.1.2 Performs at least equally the function imposed in the general design for
the Project;
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20.1.3 Conforms substantially, even with deviations, to the detailed
requirements for the items as indicated by the Contract Documents; and
20.1.4 Carries the same guaranty or warranty of the specified equipment.
All substitution requests will be made via written request which shall be attached to a
Shop Drawing and/or Change Order which shall be attached to a detailed description of the
specified item and a detailed description of the proposed substitution. A comparison letter
itemizing all deviations from specified items must be included for the Consultant and Contract
Administrator to properly evaluate substitution. Failure to provide the deviation comparison
sheet shall automatically deny the request.
Any changes, inclusive of design changes, made necessary to accommodate substituted
equipment under this paragraph shall be at the expense of Developer, Contractor or subcontractor
responsible for the Work item.
20.2 Contract Administrator's prior written consent will be required as to acceptability,
and no substitute will be ordered, installed or utilized without Consultant and Contract
Administrator's prior written acceptance which will be evidenced by either a Change Order or an
accepted Shop Drawing. City may require Developer to cause Contractor to furnish at
Contractor's expense a special performance guarantee or other surety with respect to any
substitute.
ARTICLE 21
PLANS AND SPECIF'ICATIONS
All plans, general and detail, are to be deemed a part of this Agreement, and the Plans
and Specifications are to be considered together, and are intended to be mutually
complementary, so that any Work shown on the Plans, though not specified in the Specifications,
and any Work specified in the Specifications though not shown on the Plans, is to be executed by
Developer as part of this Agreement. Figured dimensions are to prevail over scale. All things
which in the opinion of the Contract Administrator may reasonably be inferred from this
Agreement and Plans as developed by Consultant and mutually agreed upon and approved by
Developer and City for the Project, are to be executed by Developer under the terms of the
Agreement; and the Consultant shall determine whether the detailed Plans conform to the
Contract Documents, except as may be otherwise determined by the Contract Administrator. In
the event the Work requested under this Section expands the scope of the Project, Developer may
seek a Change Order pursuant to Article 38.
ARTICLE 22
CONTRACTOR TO CHECK DRAWINGS AND DATA
Developer shall cause Contractor to take maasurements and verify all dimensions,
conditions, quantities and details shown on the drawings, schedules, or other data. Failure to
discover or correct errors, conflicts or discrepancies shall not relieve Contractor of full
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responsibility for unsatisfactory Work, faulty construction, or improper operation resulting
therefiom nor from rectifuing such condition at Contractor's own expense. Contractor will not be
allowed to take advantage of any error or omissions.
ARTICLE 23
DIFFERING SITE CONDITIONS
In the event that during the course of the Work Contractor encounters subsurface or
concealed conditions at the Project Site which differ materially from those shown on the
Contract Documents and from those ordinarily encountered and generally recognized as inherent
in Work of the character called for in the Contract Documents, or unknown physical conditions
ofthe Project Site, ofan unusual nature, which differ materially from that ordinarily encountered
and generally recognized as inherent in Work of the character called for in the Contract
Documents and Contractor notifies Developer of such conditions, Developer shall notify or
cause Contractor, without disturbing the conditions and before performing any Work affected by
such conditions, to, within twenty-four (24) hours of their discovery, notify Contract
Administrator and Consultant in writing of the existence of the aforesaid conditions. Consultant
and Contact Administrator shall, within two (2) business days after receipt of Contractor's
and"ior Developer's written notice, investigate the site conditions so identified. If, in the opinion
of Consultant and Contract Administrator, the conditions do materially so differ and cause an
increase or decrease in Developer's cost of, or the time required for, the performance of any part
of the Work, whether or not charged as a result of the conditions, Consultant and Contract
Administrator shall recommend an equitable adjustment to the Contract Sum, or the Contract
Time, or both. If City and Developer cannot agree on an adjustment in the Contract Sum or
Contract Time, the adjustment shall be referred for determination in accordance with the
provisions of Article 1 1. Should Consultant and Contract Administrator determine that the
conditions of the Project Site are not so materially different to justi$, a change in the terms of the
Contract Documents, Consultant shall so notify City and Developer in writing, stating the
reasons, and such determination shall be final and binding upon the parties hereto.
No request by Developer for an equitable adjustment to the Contract Sum and/or Contract
Time under this provision shall be allowed unless Developer has given written notice. No
request for an equitable adjustment or change to the Contract Sum or Contract Time for differing
site conditions shall be allowed if made after the date certified bv Consultant as the date of
Substantial Completion.
ARTICLE 24
WARRANTY
Developer shall require that Contractor warrant to the City in the Contract Documents
that all materials and equipment fumished for the Project will be new unless otherwise specified
and that all Work for the Project will be of good quality, free from faults and defects and in
conformance with the Contract Documents. The standard of quality shall be at least that
employed by similarly qualified Contractor's that are duly qualified and licensed to perform
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similar projects. If materials or equipment is improperly stored and becomes altered as a result of
such improper storage, Developer shall cause Contractor to replace said materials with new
materials at no additional cost. Developer shall cause Contractor to be responsible for proper
storage and safeguarding of all materials. If required by the Contract Administrator, Developer
shall cause Contractor to furnish satisfactory evidence as to the kind and quality of materials and
equipment. The warranty requirements set forth in the Contract Documents as herein def,rned
shall govem warranty terms and conditions for all warranty items expressed or implied. The
Contractor's wa.rranty period under this Article shall be one (1) year from the date of Substantial
Completion of each portion of the Project. However, this Section shall not abridge the times or
impede the rights and remedies afforded the City against other entities or persons under this
Agreement, or by law.
ARTICLE 25
SUPPLEMENTARY DRAWINGS
25.1 When, in the opinion of Consultant, it becomes necessary to explain more fully
the Work to be done, or to illustrate the Project fuither to show any changes which may be
required, supplementary drawings, with specifications pertaining thereto, will be prepared by the
Consultant.
25.2 The supplementary drawings shall be binding upon Developer with the same
force as the Contract Documents. Where such supplementary drawings require either less or
more than the estimated quantities of Work, appropriate adjustments shall be made pursuant to
an approved Change Order in accordance with Article 8 herein.
ARTICLE 26
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ARTTCLE 27
GENERAL WORKMANSHIP
27.1 Articles, materials, and equipment specified or shown on drawings shall be new
and shall be applied, installed, connected, erected, used, cleaned, and conditioned for proper
forming, as per the manufacturer's directions. Contractor shall, if required, furnish satisfactory
evidence as to kind and quality of the materials. Should materials arrive to the jobsite new and be
improperly stored and deteriorate from new condition, the materials shall be replaced at no
additional cost to City.
27.2 Developer shall cause Contractor to apply, install, connect, and erect
manufactured items or materials according to recommendations of manufacturer when such
recommendations are not in conflict with the Contract Documents. If there is conflict between
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manufacturer recommendations and the Contract Documents, Consultant and Contract
Administrator shall be notified and participate in the corrective actions.
ARTICLE 28
DEFECTIVE WORK
28.1 Consultant and/or Contract Administrator shall have the authority to reject or
disapprove Work for the Project which Consultant and/or Contract Administrator reasonably
finds to be defective. If required by Consultant and/or Conuact Administrator, Developer shall
cause Contractor to promptly either, as directed, correct all Defective Work or remove it from
the Project site and replace it with non-Defective Work. In the event it is determined that City
was correct in its order, Developer and/or Contractor shall bear all costs of such removal or
correction.
28.2 If, within one (1) year after Substantial Completion, any Work is found to be
defective or not in accordance with the Contract Documents, Contractor shall correct it promptly
in accordance with the its warranties and without cost to City after receipt of written notice from
City to do so, unless City has given Contractor a written acceptance of such conditions. Nothing
contained herein shall be construed to establish a period of limitation wilh respect to any other
obligation which Contractor might have under the applicable State law.
28.3 Prior to Substantial Completion, should Developer fail to cause Contractor to
remove or correct any Defective Work performed for the Project or to make any necessary
repairs in an acceptable manner and in accordance with the requirements of this Agreement
within a reasonable time, indicated in writing, City shall have the authority to cause the
unacceptable or Defective Work to be removed or corrected, or make such repairs as may be
reasonably necessary to be made at Developer's or Confiactor's expense. Continued failure or
refusal on the part of Developer to cause Contractor to make any or all necessary repairs
promptly, fully, and in acceptable manner shall be sufficient cause for City to declare this
Agreement forfeited, in which case City, at its option, may purchase materials, tools, and
equipment and employ labor or may contract with any other individual, firm or corporation, or
may proceed with its own forces to perform the Work. A11 costs and expenses reasonably
incurred thereby shall be charged against Developer or Contractor.
28.4 Failure to reject any Defective Work or material shall not in any way prevent later
rejection when such defect is discovered or obligate City to final acceptance.
28.5 Upon Final Completion, City agrees to look solely to the Contractor, Consultant
or both, but not the Developer, to perform any and all to repair or correct any and all Work
considered or determined by the City to be non-conforming or defective or otherwise in breach
of any warranty.
28.6 Upon Final Completion, the City shall become solely responsible and liable for
the operation, security, maintenance, heat, utilities, damage to the Work, and insurance. The
failure to include any items of corrective Work on such list does not alter the responsibility of
Contractor to complete all of the Work in accordance with the Contract Documents. Warranties
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from Contractor required by the Contract Documents shall commence on the date of Final
Completion of the Work or designated portion thereof unless otherwise provided in the
Certificate of Completion.
ARTICLE 29
SUBCONTRACTS
29.1 Until Final Completion, Developer shall be fully responsible for the performance
of its agents and employees, and Contractor and Consultant under the terms of this Agreement.
Until Final Completion, nothing in the Contract Documents shall create any contractual
relationship between any subcontractor and City or any obligation on the part of City to pay or to
see the payment of any monies due any subcontractor. City or Developer may furnish to any
Contractor, subcontractor, subconsultant evidence of amounts paid to Developer on account of
specific Work performed.
29.2 Developer agrees to bind specifically Contractor and require that Contractor bind
every subcontractor and subconsultant to the applicable terms a:rd conditions of the Contract
Documents for the benefit of City.
29.3 Upon the occurence of Final Completion and thereafter, as a third-party
beneficiary of the Contract Documents and all warranties thereunder, City shall be deemed to be
in a direct contractual relationship with the Contractor such that the Contractor shall be liable to
the City to the same extent that Contractor is liable and responsible to the Developer for the acts
and omissions of itself and all of its subcontractors, sub-subcontractors, materialman and
laborers employed by the Contractor.
ARTICLE 30
ENVIRONMENTAL MATTERS
The City is responsible as a Cost of the Work pursuant to an approved Change Order for
any required environmental remediation within the Project Site. Developer shall be responsible
as a Cost of the Work for conducting environmental due diligence prior to construction to assess
the environmental site conditions and subsequent remediation needs, if applicable.
Notwithstanding the foregoing, if the cost of such remediation is, in the sole and reasonable
business judgment of the City, economically unfeasible, then the City shall have the right to
terminate this Agreement upon written notice to Developer, in which case both parties shall be
released from any further liability under this Agreement.
ARTICLE 31
USE OF' COMPLETED PORTIONS
31.1 City shall have the right at its sole option to take possession of and use any
completed or partially completed portions ofthe Project. Such possession and use shall not be
deemed an acceptance of any of the Work not completed in accordance with the Contract
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Documents. If such possession and use increases the cost of or delays the Work, Developer shall
be entitled to reasonable extra compensation, or reasonable extension of time or both, as
recommended by Consultant and approved by City, as a Change Order in accordance with
Article 8 herein.
31.2 In the event City takes possession of any completed or partially completed
portions of the Project, the following shall occur:
31.2.1 City shall give notice to Developer in writing at least thirty (30) days
prior to City's intended occupancy of a designated area.
31.2.2 Developer shall complete to the point of Substantial Completion the
designated area and request inspection and issuance of a Certificate of Substantial Completion
from Consultant.
31.2.3 Upon Consultant's issuance of a Cenificate of Substantial Completion,
City will assume full responsibility for maintenance, utilities, subsequent damages of City and
public, adjustment ofinsurance coverage's and start ofwarranty for the occupied area.
31.2.4 Developer shall complete all items noted on the Certificate of
Substantial Completion within the time specified by Consultant on the Certificate of Substantial
Completion, as soon as possible and request final inspection and final acceptance ofthe portion
of the Work occupied. Upon completion of final inspection and receipt of an application for
final payment, Consultant shall issue a final certificate of payment relative to the occupied area.
31.2.5 If City finds it necessary to occupy or use a portion or portions of the
Work prior to Substantial Completion thereof, such occupancy or use shall not commence prior
to a time mutually agreed upon by City and Developer and to which the insurance company or
companies providing the property insurance have consented by endorsement to the policy or
policies. Insurance on the unoccupied or unused portion or portions shall not be canceled or
lapsed on account of such partial occupancy or use. Consent of Developer and of the insurance
company or companies to such occupancy or use shall not be unreasonably withheld.
ARTICLE 32
CONSTRUCTION AREA
32.1 Developer and Contractor shall use areas approved by the Contract Administrator
for deliveries and personnel.
32.2 To provide for maximum safety and security, Contractor shall erect and maintain
all necessary barricades, and any other temporary walls and structures as required, and boarding
or fencing to protect life and property during the period of construction.
32.3 Construction staging for the Project will be confined to the Project Site, thereby
not impacting adjacent commercial areas. Developer shall develop a plan for construction
staging in order for access to the adjacent commercial areas to be continually maintained with
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only minimal disruptions. Such plan shall be subject to City's prior approval which shall not be
unreasonably withheld, conditioned or delayed.
ARTICLE 33
LANDS FORWORK
City shall provide as indicated in the Contract Documents, the lands upon which the
Project is to be performed, rights-of-way and easements for access thereto and such other lands
as are designated for the use of Developer. No claim for damages or other claim other than for an
increase in the Contract Sum or Contract Time shall be made or asserted against City by reason
of any delay arising as a result of any failure of City to provide such lands on the date needed by
Developer. The provisions of Article 41 shall apply herein.
ARTICLE 34
LEGAL RESTRICTIONS
Developer shall conform to all applicable laws, regulations, or ordinances with regard to
labor employed, hours of Work and Developer's general operations.
ARTICLE 35
DAMAGE TO EXSTING FACILITIES, EQUIPMENT ORUTILITIES
35.1 The City shall provide Developer with the documents, including, without
limitation, a sonar study of all existing underground facilities, equipment and utilities within the
Project Site, identif,led on the attached Exhihit "G" (collectively, the "Documents") within ten
(10) days after the date of this Agreement.
35.2 The City shall, prior to commencement of the Work, identifu to Developer any
and all existing utilities and other underground facilities, equipment, or utilities at City's sole cost
and expense. The City, as part of the Contract Sum, will be solely responsible for relocating any
underground utilities now existing on the Project Site. Developer and Contractor shall be
responsible to preserve all existing utilities identified in the Documents. If a utility conflict is
encountered which was not identified in the Documents, Consultant or Developer shall be
responsible for giving sufficient notice to the owners of the utilities so that the City may make
the necessary adjustments. Any time delay or cost incurred will be the responsibility of the City
and shall increase the Contract Time and Contract Sum through an approved Change Order.
City, as a Cost of the Work through a Change Order, shall relocate any underground utilities
existing as of the date of this Agreement on the Project Site, if necessary, that were not identified
by City to Developer in the Documents.
35.3 Developer shall cause Contractor to exercise care and take all precautions during
excavation and construction operations to prevent damage to any existing facilities, equipment,
or utilities. Any damage caused by Contractor shall be reported immediately to the Contract
Administrator and such Work shall be repaired and/or replaced by Contractor in a manner
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approved by City. In the event Contractor damages underground facilities, equipment, or
utilities that were identified by City in the Documents, then all costs to repair and/or replace any
damage to existing facilities, equipment, or utilities, shall be the sole responsibility of
Contractor, and such repair or replacemenl shall be performed expeditiously without cost to City.
In the event Contractor damages underground facilities, equipment, or utilities that were not
identified by City in the Documents, then all costs to repair and/or replace any damage to
existing facilities, equipment, or utilities, shall be the sole responsibility of City, and such repair
or replacement shall be performed expeditiously at the expense of the City as a Cost of the Work
tlrough a Change Order.
35.4 Developer shall cause Contractor to provide that type of required protection for
finished Work at all times and protect adjacent Work during cleaning operations, and make good
any damage resulting from neglect ofthis precaution.
35.5 Protection of Work shall include protecting of Work that is factory finished,
during transportation, storage, during and after installation. Where applicable and as required,
Developer shall cause Contractor to close off spaces of areas where certain Work has been
completed to protect it from any damages caused by others during their operations.
35.6 To all applicable sections where preparatory Work is part of Work thereon,
Developer shall cause Contractor to carefully examine surfaces over which finished Work is to
be installed, laid or applied, before commencing with the Work. Developer shall not allow
Contractor to proceed with said Work until defective surfaces on which Work is to be applied are
corrected satisfactorily to the Contract Administrator. Commencement of Work shall be
considered acceptance of surfaces and conditions.
ARTICLE 36
CONTINUING THE WORK
Provided City is current in its pal,rnents under this Agreement, Developer and Contractor
shall carry on the Work and adhere to the Construction Schedule during all disputes or
disagreements with City, including disputes or disagreements conceming a request for a Cha.nge
Order, a request for a change in the Contract Sum or Contract Time. Provided City is current in
its payments under this Agreement, the Work shall not be delayed or postponed pending
resolution ofany disputes or disagreements.
ARTICLE 37
F'IELD ORDERS AND SUPPLEMENTAL INSTRUCTIONS
37.1 The Contract Administrator shall have the right to approve and issue Field Orders
(subject to Developer's approval) setting forth written interpretations ofthe intent ofthe Contract
Documents and ordering minor changes in Contract Documents execution, providing the Field
Order involves no change in the Contract Sum or the Contract Time.
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37.2 The Contract Administrator shall have the right to approve and issue to Developer
reasonable supplemental instructions to Developer setting forth u,ritten orders, instructions, or
interpretations conceming the Agreement or its performance, provided they make no material
changes in Contract Documents execution and involve no change in the Contract Sum or the
Contract Time.
ARTICLE 38
CHANGE ORDERS (CHANGES rN QUANTTTTES OF WORK)
38.1 Changes in the quantity or character of Work within the scope of this Project
which are not properly the subject of Field Orders or supplemental instructions, to include all
changes resulting in changes in the Contract Sum or the Contract Time, shall be authorized only
by Change Orders approved by the Contract Administrator and Developer.
38.2 Developer shall not start Work on any alteration requiring an increase in price or
extension of time for completion until a Change Order setting forth the adjustrnents is approved
in writing by the Contract Administrator and Developer, except for the provisions of Section
38.3, which govems disputed Change Order items.
38.3 In the event satisfactory adjustment cannot be reached for any item requiring a
Change Order, the City reserves the right, at its own option, to either terminate the Agreement as
it applies solely to the items in question and make such arrangements as may be deemed
necessary to complete the item in question. Provided, however, if the arrangements made by the
City to complete the item in question would delay Final Completion of the Work or result in
additional expense to Developer, then the City shall either (l) issue a Change Order for such
additional cost or time extension or (2) postpone the City's proposed work until after Final
Completion of the Work or (3) submit the matter in dispute for resolution as set forth in Article
1l herein. During the pendency of the dispute resolution, Developer shall proceed with the Work
set forth within the Change Order on a time and materials basis, which Developer shall
adequately document pending final resolution of such dispute(s).
38.4 On approval of any Change Order increasing the price, Developer shall direct
Contractor to ensure that the applicable Performance and Payment Bonds, to the extent
applicable under the provisions of Article 5 t hereof, are each increased so that it reflects the total
amount ofthe Project as increased.
38.5 Proposed Change Orders shall be prepared by the Contractor and submitted by
Developer to Contract Administrator for approval.
ARTICLE 39
VALUE OX' CHANGE ORDER WORK
In the event the City initiates a Change Order for Work to be performed or eliminated
from the Contract Documents by Developer, Developer shall use its best efforts to negotiate with
the Contractor for the most cost effective pricing with respect to a determination of the change in
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the Contract Sum, if any, or the amormt of the time extension or reduction, if any, necessitated
by the Change Order. The cost quoted by the Contractor for Change Orders shall be within
standard industry rates and shall be submitted with a breakdown of labor, material, overhead and
profit subtotal amounts. ;
ARTICLE 40
CHANGE OF CONTRACT TIME OR CONTRACT SUM
40.1 The Contract Time set forth in Article 6 or the Contract Sum may only be
changed by a Change Order. Any claim for an extension of the Contract Time or for an increase
in the Contract Sum shall be based on written notice delivered by the party making the claim to
the Contract Administrator promptly (but in no event later than forty-five (45) days) after the
occurrence of the event giving rise to the claim and stating the general nature of the claim.
Notice of the extent of the claim with supporting data shall be delivered within such forty-hve
(45) day period (unless Contract Administrator allows, in writing,, an additional period of time to
ascertain more accurate data in support of the claim). All claims for adj ustment in the Contract
Time or for an increase in the Contract Sum shall be decided by the Contract Administrator
pursuant to the terms of Article 11 in this Agreement. No claim for an adjustment in the
Contract Time or for an increase in the Contract Sum will be valid if not submitted in strict
accordance with the requirements of this Article.
40.2 The Contract Time will be extended in an amount equal to time lost due to days
beyond the control of and through no fault or negligence of Developer if a claim is made
therefore as provided herein. Such delays shall include, but not be limited to, acts or neglect by
City, or by *y employee of City, or any separate Contractor or consultant employed by City,
fires, floods, labor disputes, epidemics, abnormal weather conditions or acts of God.
ARTICLE 41
NO DAMAGES FORDELAY
NO CLAIM FOR DAMAGES OR ANY CLAIM OTHER THAN FOR AN
EXTENSION OF CONTRACT TIME OR AN INCREASE IN THE CONTRACT SUM SHALL
BE MADE OR ASSERTED AGAINST THE CITY BY REASON OF ANY DELAYS.
DEVELOPER SHALL NOT BE ENTITLED TO PAYMENT OF COMPE,NSATION OF ANY
KIND FROM THE CITY FOR DIRECT, INDIRECT, CONSEQUENTIAL OR OTHER
COSTS, EXPENSES OR DAMAGES, INCLUDING, BUT NOT LIMITED TO, COSTS OF
ACCELERATION OR INEFFICIENCY, RESULTING FROM ANY DELAYS, EXCEPT IN
THE EVENT THAT SUCH DELAYS ARE DUE TO FRAUD, BAD FAITH, ACTIVE
INTERFERENCE OR THE FAILURE TO TIMELY ACT BY THE CITY. OTHERWISE,
DEVELOPER SHALL BE ENTITLED ONLY TO EXTENSIONS OF THE CONTRACT TIME
OR AN INCREASE IN THE CONTRACT SUM AS ITS SOLE AND EXCLI]SIVE REMEDY
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FOR SUCH DELAYS. DEVELOPER SHALL SPECIFICALLY INCLUDE THIS
PROVISION IN ITS AGREEMENT WITH CONTRACTOR.
ARTICLE 42
SUBSTANTIAL COMPLETION
When Developer considers that the Work, or a portion thereof designated by the City,
pursuant to Article 31 hereof, has reached Substantial Completion, Developer shall so notify
Contract Administrator and Consultant in writing. Contract Administrator and Consultant sha1l
then promptly inspect the Work. When Contract Administrator and Consultant, on the basis of
such an inspection, determine that the Work or designated portion thereof is Substantially
Complete, Consultant will then prepare a Certificate of Substantial Completion which shall
establish the Date of Substantial Completion and shall list all Work yet to be completed to satisfy
the requirements of the Contract Documents for Final Completion. The Certificate of Substantial
Completion shall be subject to Contract Administrator's reasonable approval and shall be
submitted to City through the Contract Administrator and Developer for their wdtten acceptance
ofthe responsibilities assigned to them in such Certificate.
ARTICLE 43
SHOP DRAWINGS AND SCHEDULE OF VALUES
43.1 Developer shall submit Shop Drawings from Contractor for all equipment,
apparatus, machinery, fixtures, piping, wiring, fabricated structures and manufactured articles.
The purpose of a Shop Drawing is to show the suitability, eff,rciency, technique of manufacture,
installation requirements, details of the item and evidence of its compliance or noncompliance
with the Contract Documents.
43.2 Developer shall promptly request of Contractor Shop Drawings from the various
manufacturers, fabricators, and suppliers.
43.3 To the extent Shop Drawings are required by the Consultant or industry custom
and standards would contemplate the preparation of Shop Drawings for certain items of the
Work, subcontractors and"/or materialmen shall be required by contract to submit Shop Drawings.
Consultant shall thoroughly review and check the Shop Drawings and each and every copy shall
show Consultant's approval thereon.
43.4 If the Shop Drawings show or indicate departures from the Contract Documents
requirements, Developer shall cause Contractor to make specific mention thereof in its Shop
Drawing submittal and a separate letter. Failure to point out such departures shall not relieve
Contractor from its responsibility to comply with the Contract Documents. Contract
Administrator shall determine acceptability of change and in considering said change, may
require data, technical comparisons, cost comparisons, quality comparisons and,/or calculations
to determine the equality of deviations. Contract Administrator is not obligated to accept
deviations.
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43.5 No Work called for by Shop Drawings shall be done until the said Drawings have
been fumished to and accepted by the Contract Administrator or his designee. Contract
Administrator shall respond to Shop Drawings pre-approved by Consultant with objections or
acceptance within ten (10) days ofreceipt. Acceptance is for design intent only and shall not
relieve Contractor and Consultant from responsibility for ht, form, firnction, quantity or for
errors or omissions of any sort on the Shop Drawings.
43.6 No acceptance will be given to partial submittal of Shop Drawings for items
which interconnect and/or are interdependent. It is Developer's responsibility to assemble the
Shop Drawings prepared by Contractor for all such interconnecting andior independent items,
check them and then make one submittal to the Contract Administrator along with Consultant's
cofirments as to compliance, noncompliance, or features requiring special attention.
43.7 If catalog sheets or prints of manufacturers' standard drawings are submitted as
Shop Drawings, any additional information or changes on such drawings shall be typewritten or
lettered in ink. Catalog sheet with multiple options shall be highlighted to depict specific
pertinent data including options.
43.8 Developer shall submit to Contract Administrator six (6) copies. Resubmissions
of Shop Drawings shall be made in the same quantity until final acceptance is obtained.
43.9 Contract Administrator's acceptance of the Shop Drawings as approved by
Consultant will be for general compliance with the plans and specifications design intent and
shall not relieve Contractor of responsibility for the accuracy of such Drawings, nor for the
proper fittings and construction of the Work, nor for the fumishing of the materials or Work
required by the Conhact Documents and not indicated on the Drawings.
43.10 Developer shall keep one set of Shop Drawings marked with the Contract
Administrator's acceptance at the Project site at all times.
43.11 At least thirty (30) days prior to the commencement of construction, the
Developer shall submit a schedule of values to the Contract Administrator. Developer shall
submit to the Contract Administrator a separate schedule of values for demoiition, abatement,
and site Work thirty (30) days prior to commencing such portion of the Work. The schedule will
be typed on 8-1/2" x 11" white paper listing: Title of project, location, project number, architect,,
Contractor, Contract Documents designation, and date of submission. The schedule shall list the
installed value of the component parts of the Work in sufficient detail to serve as a basis for
computing values for progress payments during the construction. The table of contents of the
specihcations shall establish the format for listing the component items. Each line item will be
identified by the number and title of the respective major section of the specifications. For each
line item, Developer shall listthe sub-values of majorproducts or operations underthe item. For
any items for which progress payments will be requested for stored materials, the value will be
broken down with:
43.11.1 The cost of materials delivered, unloaded, properly stored and
safeguarded, with taxes paid; and
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43.11 .2 The total installed value.
ARTICLE 44
FIELD ENGINEERING
44.1 The Developer shall provide as a Cost of the Work, the engagement of
Consultants for field engineering services required for the Project. This field engineering
services shall include the following elements:
44.1.1 Survey Work required in execution of the Project.
44.1.2 Civil, structural or other professional engineering services specified, or
required to execute the Contractor's construction methods.
44.2 The survey completed by the survey Consultant will identify the qualified
engineer or registered land surveyor, acceptable to the City, and it shall be retained by the
Developer at the outset of this Proj ect.
44.3 The survey will locate and protect control points prior to starting site Work, and
will preserve all permanent reference points during construction.
44.3.1 No changes or relocations will be made without prior written notice to
the Contract Administrator.
44.3.2 A report shall be made to the Contract Administrator when any
reference point is lost or destroyed, or requires relocation because of necessary changes in grades
or locations.
44.3.3 The surveyor shall be required to replace Project control points which
may be lost or destroyed. The surveyor shall be duly registered as a surveyor or mapper, as
required by state law.
44.3.4 Replacements shall be established based upon original survey control.
ARTICLE 45
FIELD LAYOUT OF THE WORKAND RECORD DRAWINGS
45.1 The entire responsibility for establishing and maintaining a line and grade in the
field lies with Contractor. Contractor shall maintain an accurate and precise record of the
location and elevation of all pipe lines, conduits, structures, underground utility access portals,
handholds, fittings and the like and shall deliver these records in good order to the Contract
Administrator as the Work is completed. These records shall serve as a basis for "record"
drawings. The cost of all such field layout and recording Work is included in the prices bid for
the appropriate items.
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45.2 Contractor shall maintain in a safe place at the site one record copy of all
Drawings (Plans), Specifications, Addenda, written amendments, Change Orders and written
interpretations and clarifications in good order and annotated to show all changes made during
construction. These record documents together with all approved samples and a counterpart of all
approved Shop Drawings will be available to Contract Administrator for reference. Upon
completion of the Project, these record documents, samples and Shop Drawings shali be
delivered to Contract Administrator.
45.3 At the completion of the Project, the Contractor shall tum over to the City a set of
reproducible drawings (Mylars) and a complete set of all drawings in the latest version of the
AutoCAD format on floppy disk not compressed which accurately reflect the "as built"
conditions of the new facility. All changes made to the construction documents, either as
clarifications or as changes, will be reflected in the plans. The changes shall be submitted on
Mylar at Ieast monthly to the Contract Administrator. These "as built" drawings on Mylar and
the latest version of the AutoCAD format media must be delivered and found to be acceptable
prior to final payments.
ARTICLE 46
SAFETYAND PROTECTION
46.1 Developer shall require Contractor to be responsible for initiating, maintaining
and superyising all safety precautions and programs in connection with the Project. Developer
shall require Contractor to take all necessary precautions for the safety of, and shall provide the
necessary protection to prevent damage, injury or loss to:
46.1.1 AII employees on the Project and other persons who may be affected
thereby;
46.1.2 All the Work and all materials or equipment to be incorporated therein,
whether in storage on or offthe Project site; and
46.1.3 Other property at the site or adjacent thereto, including trees, shrubs,
lawns, walks, pavements, roadways, structures and utilities not designated for removal,
relocation or replacement in the course of construction.
46.2 Developer shall use reasonable efforts to cause Contractor to (a) comply with all
applicable laws, ordinances, rules, regulations and orders of any public body having jurisdiction
for the safety ofpersons or property or to protect them from damage, injury or loss; and (b) erect
and maintain all necessary safeguards for such safety and protection. Developer shall notify
owners of adjacent property and utilities when prosecution of the Work may affect them. All
damage, injury or loss to any property refened to in Sections 46.1 .2 and 46.1.3 above, caused
directly or indirectly, in whole or in part, by Developer or Contractor, any subcontractor or
consultant or anyone directly or indirectly employed by any of them or anyone for whose acts
any of them may be liable, shall be remedied by the responsible party; however, Developer
and./or Contractor shall not be liable for injury or damage caused by City, its employees,
consultants or its separate Contractors. Developer's and Contractor's duties and responsibilities
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for the safety and protection of the Project shall continue until such time as all the Project is
completed and the Contract Administrator has issued a notice to Developer that the Project is
acceptable except as otherwise provided in Article 28.
46.3 Contractor shall designate a responsible member of its organization at the Project
site whose duty shall be the prevention of accidents. This person shall be Contractor's project
representative unless otherwise designated in writing by Developer to City.
ARTICLE 47
PAYMENT OF TESTS BY DEVELOPER
Except when otherwise specified in the Contract Documents or this Agreement, the
expense of all tests and test reports shall be bome by Developer..
ARTICLE 48
ITHIS ARTICLE LEFT INTENTIONALLY BLANK]
ARTICLE 49
CLEANING UP AND REMOVAL OF EQUIPMENT
49.1 Developer shall cause Contractor at all times keep the Project site free from
accumulation of waste materials or rubbish caused by Contractor's operations. At the completion
of the Project, Developer shall cause Contractor to remove all of its waste materials and rubbish
from and about the Project as well as its tools, construction equipment, machinery and surplus
materials. If Developer fails to cause Contractor to clean up at the completion of the Project,
City may do so; and the reasonable cost thereof shall be charged to Developer or Contractor.
49.2 In case of termination of this Agreement before completion for any cause
whatever, Developer, if notified to do so by City, shall cause Contractor to promptly remove any
part or all of Contractor's equipment and supplies from the property of City, failing which City
shall have the right to remove such equipment and supplies at the expense of Developer or
Contractor.
ARTICLE 50
[THIS ARTICLE LEFT INTENTIONALLY BLANK]
ARTICLE 51
BONDS AND INSURANCE
51.1 Developer shall cause Contractor to furnish upon the execution of the
construction contract with Contractor, a performance bond and payment bond of the form and
containing all the provisions set forth in this Section. Payment and performance bonds shall be
MIAMI 4065935.6 80574/43097
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in the form of dual obligee bonds from the Contractor in the amount of the Guaranteed
Maximum Price, naming the City and Developer as dual obligees.
51.2 The bonds shall be in the amount of one hundred percent (100%) of the Contract
Sum guaranteeing to City the completion and performance of the Project covered in this
Agreement as well as full payment of all suppliers,, material persons, Iaborers, or subcontractors
employed pursuant to this Project. Such bonds shall be with a surety company which is qualified
pursuant to Section 51.4.
51.3 Such bonds shall continue in effect for one year after completion and acceptance
of the Project with liability equal to one hundred percent (100%) of the Contract Sum, or an
additional bond shall be conditioned that Developer will, upon notification by City, correct any
defective or faulty Work or materials which appear within one year after completion of the
Work.
51.4 The surety company shall have at least the following minimum ratings in the
latest revision of Best's Insurance Report:
Amount of Bond Ratings
500,001 to 1,020,000 B+
1,020,001 to 2,000,000 B+
2,000,001 to 5,000,000 A
5,000,001 to 10,000,000 A
10,000,001 to 25,000,000 A
25,000,001 to 50,000,000 A
50,000,001 or more A
Cateeory
Class I
Class II
Class III
Class IV
Class V
Class VI
Class VIT
51.5 Indemnification Of Citv
51.5.1 The construction conuact between Developer and Contractor and the
architect's agreement between Developer and Consultant shall provide that Contractor or
Consultant (as applicable) shall indemnifu and save harmless City, its officers, agents and
employees, from or on account ofany injuries or damages, received or sustained by any person
or persons during or on account of any construction activities of Contractor or Consultant (as
applicable), or any of its subcontractors, subconsultants, agents, servants, or employees
connected with the Project; or by or in consequence of any negligence of Contractor or
Consultant (as applicable), or any of its subcontractors, subconsultants, agents, servants, or
employees (excluding negligence of City), in connection with the construction activities of
Contractor or Consultant (as applicable), or any of its subcontractors, subconsultants, agents,
servants, or employees connected with the Project; or by use of any improper materials or by or
on account of any act, eror or omission of Contractor or Consultant (as applicable) or any
subcontractor, subconsultants, agents, selvants or employees, except to the extent caused by
City. The construction contract between Developer and Contractor and the architect's agreement
between Developer and Consultant shall fuilher provide that Contractor or Consultant (as
applicable) shall indemnify and save harmless City (a) against any claims or liability arising
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from or based upon the violation of any federal, State, Corurty or City laws, bylaws, ordinances
or regulations by Contractor, its subcontractors, agents, seruants or employees (excluding
negligence ofCity); and (b) from all such claims and fees, and from any and all suits and actions
of every name and description that may be brought against City on account of any claims, fees,
royalties, or costs for any invention or patent, and from any and all suits and actions that may be
brought against City for the infringement of any and all patents or patent rights claimed by any
person, frrm, or corporation.
51.5.2 Developer shall indemnify, save harmless and defend City, its agents,
servants and employees, from and against any claim, demand or cause of action of whatever kind
or nature arising out of any negligent conduct or negligent misconduct of Developer and for
which City, its agents, servants or employees, are alleged to be liable.
51.5.3 The indemnification provided above shall obligate Contractor,
Consultant or Developer (as applicable) to defend at its o,*,n expense to and through appellate,
supplemental or bankruptcy proceeding, or to provide for such defense, at City's option, any and
all claims of liability and all suits and actions of every name and description that may be brought
against City which may result from the operations and activities under this Agreement whether
the construction operations be performed by Developer, Contractor, Consultant, its
subcontractors, its subconsultants, or by anyone directly or indirectly employed by any of the
above.
51.6 Insurance. Developer shall as a Cost of the Work provide, or cause to be
provided, and maintain, or cause to be maintained,, in force at all times during the Project, such
insurance, including Workers' Compensation Insurance, Employer's Liability Insurance,
Comprehensive General Liability Insurance, and Professional Liability Insurance, as will assure
to City the protection contained in this Agreement. Such policy or policies shall be issued by
companies approved to do business in the state of Florida, and having agents upon whom service
of process may be made in the state of Florida. Developer shall specifically protect City by
naming City as an additional insured under the Comprehensive General Liability Insurance
Policy hereinafter described.
51.6.1 Professional Liability Insurance to be canied by Consultant with limits
of liability provided by such policy not less than One Million Dollars ($ 1,000,000.00) each claim
to assure City the indemnification specified in Section 51.5. Such policy may aariy a
commercially reasonable deductible, not to exceed Fifty Thousand Dollars ($50,000.00) for each
claim. The Certificate of Insurance for Professional Liability Insurance shall reference the
applicable deductible and the Project.
51.6.2 Workers' Compensation Insurance to apply for all employees in
compliance with the "W'orkers' Compensation Law" of the state of Florida and all applicable
federal laws. In addition, the policy(ies) must include: Employer's Liability with a limit of
$ 1,000,000.00 each accident.
51.6.3 Comprehensive General Liability with minimum limits of One Million
Dollars ($1,000,000.00) per occurrence combined single limit for Bodily Injury Liability and
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Property Damage Liability. Coverage must be afforded on a form no more restrictive than the
latest edition of the Comprehensive General Liability Policy, without restrictive endorsements,
as filed by the Insurance Services Office and must include:
(i) Premises and,/or Operations;
(ii) Independent Contractors;
(ii, Products and/or Completed Operations;
(iv) The Developer shall cause Contractor to maintain in force
until at least three (3) years after Final Completion of the Project coverage for Products and
Completed Operations, including Broad Form Properly Damage;
(") Explosion, Collapse and Underground Coverages;
(vi) Broad Form Property Damage;
(vii) Broad Form Contractual Coverage applicable to this
specific Agreement, including any hold harmless and/or indemnification agreement;
(viii) Personal Injury Coverage with Employees and Contractual
Exclusions removed with minimum limits of coverage equal to those required for Bodily Injury
Liability and Property Damage Liability; and
(ix) Notice of Caacellation and/or Restriction-The policy(ies)
must be endorsed to provide the City with thirty (30) days notice of cancellation and/or
restriction.
51.6.4 Business Automobile Liability with minimum limits of One Million
Dollars ($1,000,000.00) per occrurence combined single limit for Bodily Injury Liability and
Property Damage Liability. Coverage must be afforded on a form no more restrictive than the
latest edition of the Business Automobile Liability Policy, without restrictive endorsements, as
filed by the Insurance Services Office and must include:
(i) Owned vehicles; and
(ii) Non-owned and hired vehicles.
51.6.5 Notice of Cancellation, Expiration and/or Restriction: The policy(ies)
must be endorsed to provide the City with thirty (30) days notice of cancellation, expiration
and/or restriction, to the attention of the Risk Manager, 1700 Convention Center Drive, Miami
Beach, Florida 33139.
51.6.6 Developer shall furnish to the Contract Administrator Certificate(s) of
Insurance evidencing the insurance coverages required herein within ten (10) days after
execution of the construction contract. Such certificate(s) shall reference this Agreement. City
reserves the right to require a certified copy of such policies upon request. AII certihcates shall
MIAMI 4065935.680s74/4309'7
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state that City shall be given thirty (30) days' prior written notice of cancellation and/or
expiration.
51.6.7 Developer shall provide to City a Certificate of Insurance or a copy of
all insurance policies required under this Article. The City's Risk Manager reserves the right to
require certified copies if requested. Endorsements and certifications shall state City is to be
given thirty (30) days' written notice prior to expiration or cancellation ofthe policy.
ARTICLE 52
MTSCELLANEOUS
52.1 Art in Public Places (AIPP). Pursuant to Chapter 82 of the Miami Beach City
Code, the City has determined that an AIPP contribution does not apply to the proposed Project
because the Improvements are defined as streetscape beautification projects, which include, but
are not limited to, one or all of the following elements: resurfacing, new curbs, gutters, pavers,
sidewalks, landscaping, lighting, bus shelters, bus benches, street fumiture and signage.
52.2 Public Benefits. The public will benefit in several ways from the proposed
Project: (a) by removing delivery vehicles at the end of Euclid Avenue just south of Lincoln
Road and establishing a delivery vehicle loading zone south of Lincoln Lane South that will
permit such vehicles to travel east or west through Lincoln Lane South instead of having to back
up and tum around to exit on Euclid Avenue; (b) by providing the Flamingo Park residents with
an entrance to Lincoln Road off Euclid Avenue; and (c) by creating more space for performances
at the Euclid Oval.
52.3 Easements. Developer shall cause Lincoln Center to grant to the City, upon
completion of the Project, a permanent easement substantially in the form which is attached
hereto and made a part hereof as Exhibit t'H", for the new electrical disconnect vault that is
being moved from City Property onto the Lincoln Center Parking Lot as part of the
Improvements.
52.4 Pedestrian Drop-OffAreas. A pedestrian drop-off area at the Project Site shall be
carefully designed in a manner to be reviewed and approved by City staff in accordance with the
requirements of the Department of Public Works (the "Department"). The Department has
already met with the Florida Department of Transportation and is completing studies requested
to finalize the drop-offplan.
52.5 Operation of Project upon Substantial Completion. City shall be solely
responsible for operating and maintaining the Project upon Substantial Completion.
52.6 Maintenance Proqram. Developer shall perform the following maintenance of the
Improvements: sweeping of the street that is part of the Project Site, trash removal within the
Project Site, and maintenance of the landscaping in the Project Site (but not replacement of the
landscaping). The balance of the maintenance shall be performed by the City. Developer and the
City shall enter into a Maintenance Agreement substantially in the form with is attached hereto
and made a part hereof as Exhibit "I".
MIAMI 4065935.5 80s74t43097
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52.7 Royalties And Patents. All fees, royalties, and claims for any invention, or
pretended invention, or patent of any article, material, anangement, appliance or method that
may be used upon or in any manner be connected with the construction of this Project or
appurtenances, are hereby included in the prices stipulated in this Agreement for said Project.
52.8 Rights of Various Interests. Whenever Work being done by City's forces or by
other Contractors is contiguous to Work covered by this Agreement, the respective rights of the
various interests involved shall be established by the Contract Administrator to secure the
completion of the various portions of the Work in general harmony.
52.9 Assisnment. This Agreement shall not be assigned or subcontracted as a whole or
in part without the written consent of the City, nor shall Developer assign any monies due or to
become due to it hereunder, without the prior written consent of the Contract Administrator.
52.10 No Interest. Any monies not paid by City when claimed to be due to Developer
under this Agreement shall not be subject to interest. However, the provisions of City's prompt
payment ordinance, as such relates to timeliness of payment, and the provisions of Section
218.74(4), Florida Statutes, as such relates to the payment of interest, shall apply to valid and
proper invoices.
52.1 1 Ownership of Documents. Drawing, specifications, design, models, photographs,
computer AutoCAD disks, reports, surveys, and other data provided in connection with this
Agreement and for which City has rendered payment, are and shall, subjectto the terms of the
Contract Documents, become and remain the property of City whether the Project for which they
are made is executed or not. If this Agreement is terminated for any reason prior to completion
of the Work, City may, subject to the terms of the Contract Documents, in its discretion, use any
design and documents prepared hererurder for the purpose of completing the Project, provided
that City has paid for same; and provided further that if such termination occurs prior to
completion of documents andl/or through no fault of Developer; Developer and Consultant shall
have no liability for such use; and provided further that any reuse without the written verification
or adaptation of Consultant for the specific purpose intended will be without liability or legal
exposure to Consultant or Developer. At the completion of the Project, as part of the Project
closeout, copies of all drawings on AutoCAD disks shall be transmitted from Developer to the
Contract Administrator within seven (7) days of termination of this Agreement in addition to the
record drawing. The provisions of this clause shall swvive the completion of this Agreement
and shall thereafter remain in full force and effect. Any compensation due to Developer shall be
withheld until all documents are received as provided herein. Notwithstanding the foregoing, the
City retains ownership of any and all documents provided to the Developer and has full use
thereof without any further payment.
52.12 Records. Developer shall keep such records and accounts and require Contractor
and Consultant to keep records and accounts as may be necessary in order to record complete
and correct entries as to personnel hours charged to this engagement. Such books and records
will be available at all reasonable times for examination and audit by City and shall be kept for a
period of three (3) years after the completion of the Project pursuant to this Agreement.
Incomplete or incorrect entries in such books and records will be grounds for disallowance by
City ofany fees or expenses based upon such entries.
MIAMI 4065935.680574t43097
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576
52.13 Nondiscrimination. Equal Emplovment Opportunity. And Americans With
Disabilities Act. Developer shail not unlawfully discriminate against any person in its operations
and activities in its use or expenditure of the funds or any portion of the funds provided by this
Agreement and shall affirmatively comply with all applicable provisions of the Americans with
Disabilities Act in the course of providing any services funded in whole or in part by City,
including Titles I and 1 I of the (regarding nondiscrimination on the basis of disability), and all
applicable regulations, guidelines, and standards.
Developer's decisions regarding the delivery of services under this Agreement shall be
made without regard to or consideration of race, age, religion, color, gender, sexual orientation,
national origin, marital status, physical or mental disability, political affiliation, or any other
factor which cannot be lawfully or appropriately used as a basis for service delivery.
Developer shall comply with Title I of the Americans with Disabilities Act regarding
nondiscrimination on the basis of disability in employment and further shall not discriminate
against any employee or applicant for employment because ofrace, age, religion, color, gender,
sexual orientation, national origin, marital status, political affiliation, or physical or mental
disability. In addition, Developer shall take affirmative steps to ensure nondiscrimination in
employment against disabled persons. Such actions shall include, but not be limited to, the
following: employment, upgrading, demotion, transfer, recruitment or recruitment advertising,
layoff, termination, rates of pay, other forms of compensation, terms and conditions of
employment, training (including apprenticeship), and accessibility.
Developer shall take affirmative action to ensure that applicants are employed and
employees are treated without regard to race, age, religion, color,, gender, sexual orientation,
national origin, marital status, political affiliation, or physical or mental disability during
employment. Such actions shall include, but not be limited to, the following: employment,
upgrading, demotion, transfer, recruitment or recruitment advertising, layoff, termination, rates
of pay, other forms of compensation, terms and conditions of employment, training (including
apprenticeship), and accessibility.
Developer shall not engage in or commit any discriminatory practice in violation of the
City's Human Rights Act in performing the Scope of Services or any part of the Scope of
Services of this Agreement.
52.14 No Contingent Fee. Developer warants that it has not employed or retained any
company or person, other than a bona fide employee Working solely for Developer to solicit or
secure this Agreement and that it has not paid or agreed to pay any person, company,
corporation, individual or firm, other than a bona fide employee Working solely for Developer,
any fee, commission, percentage, gift, or other consideration contingent upon or resulting from
the award or making of this Agreement. For the breach or violation of this provision, City shall
have the right to terminate the Agreement without liability at its discretion, to deduct from the
Contract Sum, or otherwise recover, the full amount of such fee, commission, percentage, gift or
consideration.
52.15 A11 Prior Agreements Superseded: Amendments. The Contract Documents
incorporate and include all prior negotiations, correspondence, conversations, agreements or
MIAMI 4065935.680574t43097
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577
understandings applicable to the matters contained herein, and the parties agree that there are no
commitments, agreements or understandings concerning the subject matter of this Agreement
that are not contained in the Contract Documents. Accordingly it is agreed that no deviation from
the terms hereofshall be predicated upon any prior representations or agreements whether oral or
written.
It is further agreed that no modification, amendment or alteration in the terms or
conditions contained herein shall be effective unless contained in a written document executed
with the same formality and of equal dignity herewith.
52.16 Notices. Whenever either party desires to give notice unto the other, it must be
given by written notice, (a) sent by certified United States mail, with return receipt requested, (b)
by personal delivery with a signed receipt, (c) by recognized national overnight courier service
or (d) by facsimile, in any case, addressed to the party for whom it is intended, at the place last
specified; and the place for giving ofnotice shall remain such until it shall have been changed by
written notice in compliance with the provisions of this paragraph. Notices given by an attomey
for the City or Developer shall be deemed effective notices. For the present, the parties designate
the following as the respective places for giving of notice, to wit:
FOR CITY:
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
Attn: City Manager
Fax: (305) 673-7782
With a copy to:
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
Attn: City Attorney
Fax: (305) 673-7002
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
Attn: Eric Carpenter, Public Works Director
Fax: (305) 673-7028
FOR DEVELOPER:
Jameck Development, Inc.
1300 Collins Avenue
Suite 100
Miami Beach, FL 33139
MIAMI 4065935_ 6 80574t43097
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Attn: Melvyn Schlesser
Fax: (305) 531-4173
With a copy to:
Bilzin Sumberg Baena Price & Axelrod LLP
1450 Brickell Avenue, 23rd Floor
Miami, Florida 33131
Attn: Adam D. Lustig, Esq.
Fax: (305) 351-2235
52.17 Truth-In-Nesotiation Certificate. Signature of this Agreement by Developer shall
act as the execution of a truth-in-negotiation certificate stating that wage rates and other factual
unit costs supporting the compensation of this Agreement are accurate, complete, and current at
the time of Contracting. The original Contract Sum and any additions thereto shall be adjusted to
exclude any significant sums by which City determines the Contract Sum was increased due to
inaccurate, incomplete, or non-current wage rates and other factual unit costs. All such
adjustrnents shall be made within one (1) year following the end of this Agreement.
52.18 Interpretation. The parties hereto acknowledge and agree that the language used
in this Agreement expresses their mutual intent, and no rule of strict construction shall apply to
either pany hereto. The headings contained in this Agreement are for reference purposes only
and shall not affect in any way the meaning or interpretation of this Agreement. All personal
pronouns used in this Agreement shall include the other gender, and the singular shall include the
plural, and vice versa, unless the context otherwise requires. Terms such as "herein," "hereof,"
"hereunder," and "hereinafter" refer to this Agreement as a whole and not to the particular
sentence, paragraph or section where they appear, unless the context requires otherwise.
Whenever reference is made to a Section or Article of this Agreement, such reference is to the
Section or Article as a whole, including all ofthe subsections and subparagraphs ofsuch Section
or Article, unless the reference is expressly made to a particular subsection or subparagraph of
such Section or Article.
52.19 Recycled Content. In support of the Florida Waste Management Law, Developer
is encouraged to supply any information available regarding recycled material content in the
products provided. City is particularly interested in the type of recycled material used (such as
paper, plastic, glass, metal, etc.); and the percentage of recycled material contained in the
product. City also requests information regarding any known or potential material content in the
product that may be extracted and recycled after the product has served its intended purpose.
52.20 Public Entity Crimes Act. In accordance with the Public Entity Crimes Act,
Section 287.133, Florida Statutes, a person or affiliate who is a Contractor, consultant or other
provider, who has been placed on the convicted vendor list following a conviction for a Public
Entity Crime, may not submit a bid on a contract to provide any goods or services to the City,
may not submit a bid on a contract with the City for the construction or repair of a public
building or public Work, may not submit bids on leases of real property to the City, may not be
awarded or perform Work as a Contractor supplier, subcontractor or consultant under a contract
with the City and may not transact any business with the City in excess of the threshold amount
MIAMI 4065935.680574/43097
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579
provided in Section 287.01'1 , Florida Statutes, for category two purchases for a period of 36
months from the date of being placed on the convicted vendor list. Violation of this section shall
result in cancellation of the City purchase and may result in debarment.
52.21 Waiver of Trial by Jurv. BY ENTERING INTO THIS AGREEMENT,
DEVELOPER AND CITY EXPRESSLY WAIVE ANY RIGHTS EITHER PARTY MAY
HAVE TO A TzuAL BY JURY OF ANY CIVI LITIGATION RELATED TO, OR AzuSING
OUT OF THE PROJECT. DEVELOPER SHALL SPECIFICALLY BIND CONTRACTOR
AND CONSULTANT AND REQUIRE THAT CONTRACTOR AND CONSULTANT BIND
ANY AND ALL OTHER SUBCONTRACTORS ANDiOR SUBCONSULTANTS TO THIS
PROVISION OF THIS AGREEMENT.
52.22 Aoorovals. Whenever any matter set forth herein is made subject to the approval
of the City or the Contract Administrator, the approval shall be expressed in writing and the City
or the Contract Administrator (as applicable) shall not be unreasonably wittrhold, delay or
condition any such approval, and the failure to grant or withhold any such approval within ten
(10) business days after receipt of written notice requesting the same (or such other time period
as may be expressly provided in this Agreement), shall be deemed approval of such matter if so
stated in said notice.
52.23 Time. Time shall be of the essence for the performance of all obligations of
Developer, the City and Contract Administrator under this Agreement. Whenever this
Agreement provides for or contemplates a period of time for performance of any obligation, such
time period shall be calculated using calendar days, except when such time period is expressly
stated to be calculated in business days. Any date in this Agreement which falls upon a
Saturday, Sunday or legal holiday (defined as any weekday upon which banks in Miami, Florida
are not open for business) shall be deemed to be extended to the next business day. The term
"business day" as used in this Agreement means any day that is not a Saturday, Sunday, or legal
holiday.
52.24 Rdcordins of Develooment Agreement. Within fourteen (14) days after the City
executes tlis Agreement, the City shall record this Agreement with the Clerk of the Circuit Court
of MiamiDade County. Developer shall submit a copy of the recorded Development Agreement
to the State of Florida's Land Planning Agency within fourteen (14) days after this Agreement is
recorded. This Agreement shall become effective only after (a) it has been recorded in the
Public Records of Miami-Dade County, and (b) thiffy (30) days have elapsed after the State of
Florida Land Planning Agency's receipt of a copy of the recorded Agreement. The City agrees
that it shall be responsible for all recording fees and other related fees and costs related to the
recording and delivery of this Agreement as described in this Section. The provisions hereof
shall remain in full force and affect during the term hereto, and subiect to the conditions ofthis
Agreement shall be binding upon the undersigned,, and all successors in interest to the parties to
this Agreement. Whenever an extension of any deadline is permitted or provided for under the
terms of this Agreement, at the request of either parfy, the other party shall join in a short-form
recordable Memorandum of Agreement confirming such extension to be recorded in the Public
Records of Miami-Dade County.
MIAMI 406593 5.6 80574/43097
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52.25 Duration of this Development Aereement. The duration of this Agreement shall
not exceed ten (10) years from the date first written above; provided, however, that the duration
of this Agreement may be extended by mutual agreement of the City and Developer. During the
term of this Agreement, the City's laws and policies goveming the development of land in effect
as of the date hereof shall govern development of the Project. The City may apply subsequently
adopted laws and policies to the Project only if the City has held a public hearing pursuant to
Section 163.3225, Florida Statutes, and determined:
52.25.1 they are not in conflict with the laws and policies goveming this
Agreement and do not prevent development of the land uses, intensities, or densities in this
Agreement; or
52.25.2 they are essential to the public health, safety, or welfare, and expressly
state that they shall apply to a development that is subject to a development agreement; or
52.25.3 they are specifically anticipated and provided for in this Agreement; or
52.25.4 the City demonstrates that substantial changes have occurred in
pertinent conditions existing at the time of approval of this Agreement; or
52.25.5 this Agreement is based on substantially inaccurate information
supplied by Developer.
IREMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
MIAMr 4065935. 6 8057 4t 43097
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581
IN WITNESS WHEREOF, the parties have set their hands and seals the day and year
first above written.
WITNESSES:CITY:
CITY OF MIAMI BEACH, FLORIDA,
a municipal corporation of the State of
Florida
By:
Sign Name: Philip Levine
Title: Mayor
Print Name
Sign
Print Name
ATTEST:
Name: Rafael E. Granado
Title: City Clerk
STATE OF FLORIDA
)s s:
couNTY oF MIAMI-DADE )
The foregoing instrument was acknowledged before me this day of
,2014, by Philip Levine, as Mayor, and Rafael E. Granado, as City Clerk, of the
City OF MIAMI BEACH, FLORIDA, a municipal corporation of the State of Florida, on behalf
of such municipal corporation. They are personally known to me or produced valid Florida
driver's Iicenses as identification.
Notary Public, State of Florida
My commission expires:
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
By:
MIAMr 4065935, 6 8057 4t 43097
M)ru,- Ettltv
*r-L- cW Atto"*Y Jhl-f Dote
582
DEVELOPER:
JAMECK DEVELOPMENT, INC., a
Florida corporation
Sign By:
Name: Melvyn Schlesser
Title: President
Print Name
Sign
Print Name
STATE OF FLOzuDA )
)ss:
couNTY oF MrAMr-DADE )
The foregoing instrument was acknowledged before me this day of ,
2014,by Melvyn Schlesser, as President of Jameck Development,krc., a Florida corporation, on
behalf of such corporation. He is personally known to me or produced valid Florida driver's
licenses as identification.
Notary Public, State of Florida
My commission expires:
MIAMI 4065935. 6 8057 4/ 43097
583
EXHIBIT ?'AII
LEGAL DESCRIPTION OF'PROJECT SITE
MIAMI 4055935. 5 80s7 4/ 43097
584
+
==E--F
20
SKECTH TO ACCOMPANY LEGAL DESCRIPTION
PORTION OF EUCLID AVENUE RIGHT OF WAY
BETWEEN LINCOLN ROAD & LINCOLN LANE
SOUTH RIGHT OF WAY LINE OF
LTNCOLN ROAD (P.8. 6 . PG' 33)
LINCOLN ROAD
LEGEND:
P.O.C. = POINT OF COMMENCEMENT
P.O.B. = POINT OF BEGINNING
PC = POINT OF CURVATURE
PT = POINT ON TANGENCY
O.R.B. = OFFICIAL RECORDS BOOK
PG, = PAGE
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NORTH RIGHT OF WAY
IINE OF LINCOLN LANE
(P.8. 6 . PG. 33)
LINCOLN LANE
LOT 6
BLOCK 5OA
TINCOLN SUBDIVISION
OF "THE ALTON BEACH
REALTY COMPANY'
(P.8.9, PG. 69)
L@}'SI,IYP-E
59OO NW 79TH AVENUE, SUITE 6OI
DORAL, FL. 55166
PH0NE:(505)465-0912 FAX:(505)515-5680
WWW, LONGITUDESURVEYORS. COM
JOB NO.: 13314
PAGE I OT 2
L:\13314 Eu.d avq r,om Ln.li Li ro Li.con Fd. voii Beoch ar\d"q\skelcf rnd Legors\iJtr4 st 06-c3-ra.drq 6/3//2014 4 20:ir Fv i0-
NOTICE: Not full and complete without all two (2) pages.
585
SKECTH TO ACCOMPANY LEGAL DESCRIPTION
PORTION OF EUCLID AVENUE RIGHT OF WAY
BETWEEN LINCOLN ROAD & LINCOLN LANE1 f-rl\u
f-] lp1-;I LffiIIJ tjj;, lllcEL tllmffil ffiH
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tHtr#Hr-lffi.Effitt _____r--J 'J- <_ -_a
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LEG4!_Q!!g_B!!!Ql!
A porlion of Euclid Avenue Righl-of-Woy os shown on the ploi of 'SECOND COMMERCIAL SUBDIDIVISION OF THE ALTON BEACH REATTY COMPANY . occording to the ploi
tinereof, os recorded in Plol Eook 6, ot Poge 33, ond the plot of "LINCOtN SUBDIVISION", occording to lhe plol trhereof, os recorded In Ploi Book 9, ot Poge 69, both
recorded in the Public Records of Miomi-Dode County, Florido; bounded on the Nodh by the extension of the South Righl of woy Line of Llncoln Rood; bounded on lhe
Soulh by lhe exiension of the North Right ol Woy Line ol Lincoln Lonei bounded on the Eost by the Eost Riehf ol Woy Line of Euclid Avenue ond bounded on the West bv
the West Righi of woy Line of Euclid AyenLre.
Soid porcel ot lond lying ond being in the Cily of Mrorni Beoch, MiomFDode Couniy, Florido ond conioi.ing I0,578 Squore Feel, r.ore or less. by colcu olions.
PEBTINENT INFORN4ATION USED FOR SURVEY:
The Legol Description of fhe SLrblecl Porcelwos ge.eroted frorn ihe following record documenhi
I , Leose Agreemenl of lhe Stote of tlondo, Boord of Trusiees of the lnternol lmprovement Fuid, recorded l. Oft ciol Records Book I I 793. ot Poge 339, Mimoi-Docle
Co,Jnty Recoros.
2. Leose Agreemenl of lhe Slote of Florido, Boord of Trusiees of lhe lniernol lrnprovemeni Fund, recorded in Ofil'clol Recqrds Book I I793, ol Poge 334, Mirnot-Dode
Counly Records.
Beonngs os shown hereon ore bosed upon lhe Wesi Line of ihe NW I /4 of Sectjon 22, Township 52 Sollth, Ronge 42 Eos'i, Miomi-dode County, Florido, wiih o n ossumed
beoring of S03'00'04"E.
EASEII4ENTS AND ENCUMERANCES:
No inforrnotion wos provided os lo the exisience of ony eo5emenis oiher thoi whot oppeors on ihe LJnderying Plql of record. Pleose refer lo lhe Limitoiions ilem wiJh
respeci to possible rertrctions of record ond uiility servjces.
R!qIE!qI!Q!S:
Since no other iniormolion were iurnished olher thon whql is ciled in the Sources ol Dolo, ihe CIlent is hereby odvised ihot lhgre moy be legol restrictions on lhe subject
propeiry thot ore nol shown on this Skelch or contoined wilhin lhis reporl thot moy be found in the Public Records of Miomi-Dode Counly, Florido or ony olher public ond
pdvole enlities os their jurisdictions moy oppeor.
Thit document does .oi represeni o field boLrndory survey of lhe descdbed property, or ony porl or porcel lhereof.
SURVEYOR'S CERTIFICATEI
Iherebycertify: Thqt this "Sketch lo Accompony Lego Description ond the Survey Mop resuliing iheref rom wos perf ormed under my direction o nd is tnJe o nd corect to
the best of my knowLedge ond belief ond fudher. thoi soid Skeich lo Accompqny Legol Descripfon meets ihe intent of lhe opplicoble provisions of tne 'Mirirnum
Choplet a/2.C21 al l^e Flofldo SrotLles.
LONGITUDE SURyEYORS LLC., o Florido ti.niied Liobility Compony
Florido Certificote of Authorizollon N!mber 187335
L@|r,q!,IYPS 8y:
39OO NW 7gTH AVENUE, SUITE 60I
DORAL, FL. 35I66
PHONE:(505)465-0912 FAX:(505)Sl5-5680
WWW. LONG ITUDESURVEYORS, COM
Jose Sdrat PS[t
Regisiered Surveyor ond Mopoer I-S5938
Slote of Florido
NOTICET Not vqlid wilhout the signqture ond originol roised seol ol o Florido Licensed
Surveyor ond Mopper. Addilions or deletions to Survey Mops by other thon lhe signing pody ore
prohiblied wiihout the written consent of ihe slgning porty. JOB NO.: ]3314
NOTICET Notfulland complete wilhout alltwo (2)pages. PAGE I Ot 2
L\13314tu.d {i.mr F.d.h,.r\d"9\sr.rch.m Lee.s\1rrr4 sL c5 0l r!rlq ril.}/zor. 4ro r PUELr
586
EXHIBIT ''B''
LEGAL DESCRIPTION OF LINCOLN CENTER PARKING LOT
Lots 7 and 8 in Block SL-A, LINCOLN SUBDMSION, according to the Plat thereof, as
recorded in Plat Book 9, at Page 69, of the Public Records of Miami-Dade County, Florida.
Folio No. 02-3234002-0540
MIAMI 406593 5. 6 8057 4/ 43097
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EXHIBIT ''C''
CONCEPTUAL PLAN
MIAMI 4065935. 6 8057 4/ 43097
588
i:.I iE t_:Tll riI LOCATION T4AP hI.1_;I FXISTTNG CONTFXT IMAGFEXIS NG SITE PLAN INl-r#lI^d] EXISTING CONTEXT IN4AGE[A'TXISTING CONT|XT IIVIAGf IA-ItXISIING CONTIXT IN1AGE-- l--589
,t;!!:l:sFi6b;92-r.-5aE6E:;!zEZtI!l,BiE*Echet65e11 Ecxr Ee5:*,6aIlLt,(\r\!i,t-.rs:Hlllll(,J2-+z3EIE07_6,!:EIFt:IE:i-6a2E;+-iq!1:i*ffitrrI--Tr+:-)-l_l3;tnl:3lrEt1.1 --590
PI;e!2dFEE69EEEI3EdllE3EeIB3i96*IIif..iiIIIIIiltirl:83 5333I iet \9-EtE591
6APLANTER DFTAILl;-]PLANTER ELEVATION6iSITE SECTION592
i{,t . ^,ilr*7(..\\r{-'t-/ l*5593
594
595
EXHIBIT *D"
CONSTRUCTION SCIIEDULE
(to be provided by Developer, once the GMP contract is executed with Contractor)
MIAMI 4065935.6 805'7 4t43097
596
EXHIBIT ''E''
DEVELOPMENT APPROVALS
Certifi cate of Completion
Demolition Permit
Department of Environmental Protection Permit (if required)
Department of Environmental Resource Management Permit
FDOT Permit
Building permits for:
Electrical
Plumbing
Miami-Dade County Public Works Department Permit (if required)
Public Works Permit, Paving and Drainage
Public Works Permit, Water and Sewer
Such other permits as may be required by Federal, State and local law
Historic Preservation Board Certificate of Appropriateness
MTAMI 4065935. 6 8057 4/ 43097
597
EXHIBIT "f,'"
ESTIMATED BUDGET
MIAMI 4065935.6 8057 4/43097
598
PREL!MINARY BUDGET SUMMARY
Cost of Construction *
De molitio n
Landscape and lrrigation
Site work
Temporary Fencing and Protection
Dumpsters and Cleaning
E lectrica I
E lectrica I Fixtu res
General Requirements / ContinBency
40,000.00
85,000.00
210,000.00
r.0,000.00
12,000.00
80,000.00
40,000.00
25,000.00
Budget Price 502,000.00
* Note: The Cost of Construction includes profit and overhead to general constructor.
Soft Costs
Architectural drawings and engineering
Permit Costs
Miscella neous Soft Costs
Construction Consultant / Manager Fees
Utilities
Administration
55,000.00
10,000.00
9,000.00
30,000.00
3,500.00
8,500.00
Total Soft Costs
Total Project Cost
116,000.00
618,000.00
599
EXHIBIT ''G''
DOCUMENTS PROVIDED BY THE CITY TO DEVELOPER
1. Water, sewer and stormwater utility drawings for Euclid Avenue between Lincoln Road
and North Lincoln Lane.
2. Memoranda to Finance and Cityvdde Projects Committee meetings and Commission
meetings.
3. Sonar study of all existing underground facilities, equipment and utilities within the
Project Site.
MIAMI 406593 5. 6 8057 4t 43097
600
EXHIBIT "H"
EASEMENT FROM LINCOLN CENTER TO CITY
MIAMI 4065935. 6 8057 4t 43097
601
Prepared by and atter recording rctum to:
Cisela Nanson Torres, Esq.
Otfice of thc City Attomey
Ciry of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33 139
EASEMENT AGREEMENT
THIS EASEMENT AGREEMENT (this "Agreement") is made as of the day of
2014, by and arnong CITY OF MIAMI BEACH, FLORIDA, a municipal
corporation of the State of Florida (the "City"), and LINCOLN CENTER ASSOCIATES, LLC, a
Florida limited liability company ("Lincoln"). The City and Lincoln are each, a "Party", and
collectively, the "Parties".
RECITALS:
A. The City owns those certain right of ways along a pofiion of Euclid Avenue,
between Lincoln Road and Lincoln Lane South, along with a portion of the adjacent right of
ways, all lying in Miami Beach, Florida (the "City Propefiy"), more pafiicularly described in the
attached Exhibit "A-1 ".
B. Lincoln is the owner of certain land located adjacent to Lincoln Lane South and
Euclid Avenue, on which a parking lot is located, rlore particularly described in the attached
Exhibit tt4-!il (the "Lincoln Center Parking Lot").
C. At the request of developer, Jameck Development, Inc. ("Jameck"),The Historic
Preservation Review Board of the City, pursuant to an Order dated October 8, 2013, under DRB
File No. 7385 (the "HPB Order") approved street scape improvements in the City's Property,
including but not limited to, the removal of the disconnect vault and landscape, installation of
new hardscape, landscape and street lighting and the closure of the portion ofEuclid Avenue to
vehicular traffic, from Lincoln Road to the north part of Lincoln Lane South, as part of an
extension of the pedestrian mall, and creation of a new pedestrian drop-off area, subject to
approval by the City's Public Works Department (collectively, the "Euclid Project
Improvements"). Part of these Euclid Project Improvements involves the removal of the
electrical disconnect vault ("City Electrical Disconnect Vault"), located within the City Property,
and relocating the City Electrical Disconnect Vault to the Lincoln Center Parking Lot, in
functioning order.
D. The City and Jameck, an affiliate of Lincoln (Jameck and Lincoln are under
common control), have entered into a Development Agreement simultaneously herewith
providing for Jameck to design and construct the Euclid Project Improvements.
MIAMI 1275569.5 77 t3176901
602
E. As part of the
Improvements, pursuant to
grant the City a permanent
Electrical Disconnect Vault.
scope for the work related to the construction of the Euclid Project
the Development Agreement, Jameck agreed to cause Lincoln to
easement in connection with the future maintenance of the City
NOW, THEREFORE, in consideration of the premises and the covenants contained
herein, the Parties hereto agree as follows:
1. Recitals. The above and foregoing recitals are true and co incorporated
herein by reference thereto.
2. Grant of Easernents. Lincoln hereby grants to the
revocable maintenance easement, including the right of entry and repalr,
replace and/or relocate (City Maintenance Easement), as needed, the City Disconnect
the locationVault, within the electrical vault building in the Lincoln
shown in the attached Exhibit "B".
)-Maintenance. In its contin of the Citv
Electrical Disconnect Vault, City shall use reasonable
damage to, or any material interference wi
(a) In making use
(i) To the
coordinate its repair, maintenan rep
Use reasonable commercial efforts to minimize interference with
the use of the Lincoln Lot;
the performance of any work in connection with the City
required, at City's sole expense,, the portion of the Lincoln
by such work, to substantially the same condition of
before the performance of such work, responsible even after
(v) At all times, keep the Lincoln Center Parking Lot free from
obstruction of any kind or nature whatsoever, except as may be required from time to time to
effect the maintenance, repair, replacement andior relocation of the City Electrical Disconnect
Vault.
4. Nature of Easement. The burdens and benefits of the easements created herein
shall run with the land and sha1l inure to the benefit of, and be binding upon the Parlies and
their respective successors and/or assigrs, and all persons claiming under them. Any transferee
non-
MIAMr I 275569.5 71 13726901
603
of a Party and/or Parties, or its/their successors or assigrs, as the case may be, shall be bound by
all terms and conditions of this Agreement. For purposes of a transfer and/or assignment of this
Agreement, a Party and/or Parties shall only be permitted to assign a Pafty's and/or Parties'
rights hereunder to (and a Party and/or Parties' successors shall only include) successor owner(s)
or mortgage lenders of Lincoln Center Parking Lot and/or association(s) designated with the
responsibility of maintenance of the common areas in connection with the development or
operation of the Lincoln Center Parking Lot.
5.Govemins Law. This Agreement shall be governed by construed in
accordance with the laws of the State of Florida, both substantive and rem ithout regard
Agreement shall be Miami-Dade County, Florida, if in State court,
Southern District of Florida, if in federal court. BY ENTERING
CITY AND DEVELOPER PARTIES EXPRESSLY WAIVE ANY EITHER
PARTY MAY HAVE TO A TRIAL BY JURY OF
TO, OR ARISING OUT OF, THIS AGREEMENT.
LITIGA
l'..]
RELATED
thereafter in perpetuity, unless this
by the written consent of the Parties.
ed, amended, canceled or terminated
Lincoln Notwithstanding anlhing
contained in this Agre-eriiEnt to the contrary, the granting of this Maintenance Easernent to the
City shall not prevent 6i,,'.Brec1Urde Lincoln from developing or redeveloping the Lincoln Center
Parking Lot, so long asB€ity electrical Disconnect Vault remains in the electrical vault
building or any other portion
,l.he
Lincoln Center Parking Lot.
9. "'' ' Remedies dnd Enforcement: Self-Help. In the event of a breach by either Party
of any of the terms, covenants, restrictions or conditions hereof, the other Party shall provide
wntten qotice qf such breach to the defaulting Party. Ifthe defaulting Party fails to cure such
witliin thirty (30) calendar days following rvritten notice thereof by the non-defaulting
Party: (unlesS,,such breach creates an emergency requiring immediate action, in which case
either Party m'qiy take action to cofirect the problem after such reasonable notice to the other
Party as possible under the circumstances, or with respect to any such breach the nature
of which t reasonably be cured within such thirty (30)-day calendar period, the defaulting
Party commences such cure within such thirty (30)-day calendar period and thereafter
diligently and continuously prosecutes such cure to completion), the non-defaulting Party shall
have the right to pursue any one or more of the following remedies: (a) perform such
obligation contained in this Agreement on behalf of such defaulting Pafty and be reimbursed
by such defaulting Party upon demand for the reasonable costs thereof; (b) fulI and adequate
relief by injunction and/or all such other available legal and equitable remedies from the
consequences ofsuch breach, including payment ofany amounts due; (c) specific performance;
out of this
ict Court,
MrAMI 1 275569.5 11 13126901
604
and/or (d) record a lien against the Lincoln Center Parking Lot . Notwithstanding anything
contained herein to the contrary, no breach hereunder shall entitle any Party to cancei, rescind,
or otherwise terminate this Agreement.
10. No Waiver. No waiver of any default of any obligation by any Party hereto
shall be implied from any omission by the other Party to take any action with respect to such
default.
1 1. No Asency. Nothing in this Agreement shall be deemed or construed by either
Party or by any third person to create the relationship of principal and agent or of limited or
independent of and severable from the remainder of this Agreement. If any vision contained
land, such
holding shall not affect the validity or enforceability of the inder of ent. [n
the event the validity or enforceability of any provision o is held to be
dependent upon the existence of a specific legal description]lllhg:fafties agree to promptly
cause such legal description to be prepared.
qept in thg:, evqnt , of any emergency requiring
e is hereiniprescribed for the taking of any action
r responSible for, and there shall be excluded from
13. Force Majeure Events.
immediate action, whenever a period of
by either Party, neither Parly shall
the computation of such period of ays due to strikes, riots, acts ofGod, shortages
of labor or materials, war, goyemmerit4l laws;,legulations or restrictions, or any other cause
whatsoever beyond the such P
14. N this Agreement nor City's limited rights to use of the
Lincoln Center Parking herein, shall be deemed a dedication, either express or
implied, of all
and assigns.
ln Center Parking Lot to City and/or its successors
]'
!. This Agreement contains the complete understanding and
as set tt
e of the
15,
agreement .of tl
tons,
hereto with respect to all matters referred to herein, and all prior
and understandings are superseded hereby.
The Parties agree that the provisions of this Agreement may be
ed, in whole or in part, or terminated, only by the written consent of the City
and Lin their respective successors and/or assigns, evidenced by a document that has
been fully eiecuted and acknowledged by the City and Lincoln, and or their respective
successors and/or assigns and recorded in the Official Records of Miami-Dade County,
Florida. The Parties agree that they sha1l not unreasonably withhold completion or delay their
written consent and approval of any amendment to this Agreement which is for the purpose of
complying with any applicable law or necessary for the development of the Lincoln Center
Parking Lot but only to the extent that such amendment to this Agreement does not adversely
affect, limit or modify the covenants and restrictions contained in this Agreement.
MrAMr 1275569. s 7713726901
605
17. Attomeys' Fees. In the event any Party institutes any legal action or proceeding
for the enforcement of any right or obligation herein contained, the prevailing Party after a
final adjudication shall be entitled to recover its costs and reasonable attorneys' fees incurred in
the preparation and prosecution ofsuch action or proceeding, at trial and at all appellate levels.
18. Notices. Whenever either party desires to give notice unto the other, it must be
given by written notice, (a) sent by certified United States mail, with retum receipt requested,
(b) by personal delivery with a signed receipt, (c) by recognized national overnight courier
service or (d) by facsimile, in any case, addressed to the party for whom it is, intended, at the
place last specified; and the place for giving ofnotice shall remain such until it shall have been
changed by written notice in compliance with the provisions of this
by an attorney for the City or Lincoln shall be decmed effective n
parties designate the following as the respective places for giving of
FOR CITY:
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
Attn: City Manager
Fax: (305) 673-7782
With a copy to:
City of Miami
1700 Conv
Miami Beach, Flori
c/o Lincoln Center Associates, LLC
1300 Collins Avenue, Suite 100
Miami Beach, Florida 33139
Attn: Melvyn Schlesser
Fax: (305)
For
MIAMr 1275569.5 77 t3726901
606
With a copy to:
Bilzin Sumberg Baena Price & Axelrod LLP
1450 Brickell Avenue,23'd Floor
Miami, Florida 33131
Attn: Adam Lustig, Esq.
Fax: (305) 351-2235
19. Estoppel Certificates. Either Pafiy hereto, within ten (10) business days of its
receipt of a written request from the other Party shall from time to time provide the requesting
Owner with a written estoppel certificate duly executed stating:
=
,,:, , , ,,
(a) to the best of such Party's knowledge, whether thi &hqf f arty is in,default
or violation of this Agreement and setting forth with specificity the default or violation; and
(b) that this Agreement is in ful1 force',and _effqdil' and identifying any(b) that this Agreement is in full force',and effqcti'and'ridentifying any
amendments to the Agreement as of the date of such certificate.
20. Fufther Assurances. From time to tiine, atrithe ,iequest of either Party and
without further consideration, either Party shal.l execute"rrird deliygr any further instnrments and
take such other actions as the other Party may reasonably require to accomplish the purposes ol
this Agreement.
IREMAINDER OF PAGE LLY LEFT BLANK]
MIAMI r 275569.5 77 \3726901
607
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
first set forth above.
WITNESSES:CITY:
CITY OF MIAMI BEACH, FLORIDA,
a municipal corporation of the State of Florida
By:
Sis,Name: Philip Levine
Title: Mayor
Print Name
Sigr
Print Name
ATTEST:
Name: Rafael Granado
Title: City Clerk
STATE OF FLORIDA )
)ss:
couNTY oF MrAMr-DADE )
The foregoing instrument was acknowledged before me this day of
,2007, by Philip Levine, as Mayor, and Rafael Granado, as City Clerk, of the City
OF MIAMI BEACH, FLORIDA, a municipal corporation of the State of Florida,, on behalf of
such municipal corporation. They are personally known to me or produced valid Florida driver's
licenses as identifi cation.
Notary Public, State of Florida
My commission expires:
By:
Mf AMr 1275569.5 771372690t
608
WITNESSES:LINCOLN CENTER ASSOCIATES, LLC,
a Florida limited liability company:
SiSi
Name: Melvln Schlesser
Title: Managing Member
Print Name
Sigr
Print Name
STATE OF FLORIDA )
)ss:
COLINTY OF MIAMI.DADE )
The foregoing instrument was acknowledged before me this duy oL,
2014, by Melv1,n Schlesser, the Managing Member of LINCOLN CENTER ASSOCIATES,
LLC, a Florida limited liability company. He is personally known to me or produced valid
Florida driver's licenses as identification.
Notary Public, State of Florida
My commission expires:
By:
MIAMI 1275569.5 77 13726901
609
EXHIBIT IIA-1''
LEGAL DESCRIPTION OF CITY PROPERTY
MrAMI 1275569. 5 7t t3726901
610
SKECTH TO ACCOMPANY LEGAL DESCRIPTION
PORTION OF EUCLID AVENUE RIGHT OF WAY
BETWEEN LINCOLN ROAD & LINCOLN LANE
ROAD
SOUTH RIGHI OF WAY LINE OF
LTNCOLN ROAD {P 8. 6 PG. 33)
LINCOLN
z_ __s\==
2a
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LEGEND:
P.O.C- = POINT OF COMMENCEMENT
P.O.B. = POINT OF BEGINNING
PC = POINT OF CURVATURE
PT = POINT ON TANGENCY
O.R.B. = OFFICIAL RECORDS BOOK
PG. = PAGE
1 fR=15.00 LL
\ L=23 56' O i
I Ton=15.00' ZZ
.D=9O"OO'OO" O f!2s- \=
l^ L--l ( ).?) -cov_+ (') Lr) -'-r >, r.!o,.i ,, A; c.
VL O'<,,i
= -i (-\:! tu Y
kdi 6Y->o- -fi::'o
hq -z<coi.\SLuLF,i Y=.o-
:< t-r =t)
uj5 .)<\rU ,-. LLJ
u_'l -u)'
NORTH RIGHT OF WAY
IINE OF TINCOLN LANE
rPR ^ PG.33)-a ' -'-'
__---1 -Iololc't I-::: : I
-
tor /
BLOCK 5IA
LINCOLN SUEDIVISlON
OF 'THE ALTON BEACH
REATTY COMPANY
{P.8.9, PG. 69)
R=15.00'
Ton=l5.00'
D=90'00'00"
Ll_o;-72-<
L-l r\oao-Ln=>-
wq\o-<
YOo.6u.=-tI/\
x€Sv:.o- ?,2- r')OE-7 1
Y,,,
rIi I
LINCOLN LANE
LOT 6
BtocK 50A
LINCOLN SUBDIVISION
OF ''tHE ALTON BEACH
REATTY COMPANY''
[P.8.9. PG. 6e)
JOB NO.i 13314
PAGE 'I OF 2
L \rJ3ra nucid Mrd6 6.och, rL\d,q\s<stch ond L.qors\]JJi4 sL o6-03-ra.d,q 6/J/2014 r 2oril or arl
NOTICE: Not full and complete without alltwo (2) paoes.
Lgt|IqI,IYP-E
59OO NW 79TH AVENUE, SUITE 6OI
DORAL, FL. 55I66
PHONE:(305)465-0912 FAX:(505)515-5680
WWW. LONG ITUDESURVEYORS. COM
611
SKECTH TO ACCOMPANY LEGAL DESCRIPTION
PORTION OF EUCLID AVENUE RIGHT OF WAY
BETWEEN LINCOLN ROAD & LINCOLN LANE
w,ytr1 1" ,,/ |v'ile
1 il!HPl tsEhil t+J
r----rr--'r -Tr"l@HH
hffi EE
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H IH /I I Ll I Itrffir-E rrlI L__tsL-l
t_ ,-l s4l+t----.Jffitililllll
I EGAI DESCqIP IION,
A portion of Euclid Avenue Right-of-woy os shown o'1 ihe plol of "sECoND coMMERctAL suBDlDtvtstoN oF THE ALToN BEAcH REALTY coMpANy,., occording to the ptol
lrhereof, os recorded in P oi Book 6, ot Poge 33, o.d the ploi of "LINCOLN SUBD V SION", occording io the plol khereof, os recorded in plot Book 9, ot poge 69, bothrecorded in ihe Public Records of Mid.n'Dode County, Florido; bounded on ihe Norih by the exlension of the South Right of wcy Line of Lincoln Rood; b;unded on ihe
Soulh by lhe extenslon of the Norih Right of Woy Line of Lincol. Lonej bounded on the Eost bythe Eost Right of Woy Line oi Er,]clid Avenue ond tlounded on lhe West byine Wesi Right of Woy Line oi ELJclid Avenue.
Soid porcel of lond lying ond being in the Cily of Miomi Beoch, Miomi-Dode Counly, Florido ond conioining 10,578 sqLrore Feet, rrore or less, by colcuiolions.
PEFTINENT INFORMATION USEO FOB SURVEY:
The Legol Descrjptl'on of ihe Subjecl Porcel wos generoied from ihe following record documents:
1. Leose Agreernent of the Stote of tlcrido, Eoord of Tr!slees oi the lnternol lrxproverrent Fund, recorded ln Otficiol Records gook I I /93, oi poge 339, Mimot-Dode
Counly Records.
2. Leose Agreement ol ihe Stote of Florido, Boord ol Trustees of the lnternol lmprovement Fu.d, recorded in Olficjol Records Book I 1793, ct poge 334, Mimoi-Dode
County Records.
Beonngs os shown hereon ore bosed upon ihe Wes, Li.e of the NW , /4 ol Seciion 22, Township 52 South, Ro.ge 42 Eost, Mjitn i dode Counly, Floddo, wiih on ossumedbeoring of S03'00'04'E.
EASEMENTS AND ENCUMBBANCESI
No informolion wos provided os lo lhe exr5tence ol ony eoseme.ts olher ihol whot oppeors on the underiying plol ol record- pleose refer to lhe Limitotions item wilh
respecl to possible resirictions of record ond utilily 5ervices.
BE.gJBEIQI.IS:
Since no other informol on were fumished other thon whol is cited in the 5o!rces oi Dqto, lhe Clienl is hereby odvhed thot there rnoy be legol resl.icuons on ihe subjecJproperiy thot ore not shown on this Skelch or contoined wiihin this report lhot..oy be found in the Public Records of Miomt-Dode Couniy, Florido or ony other pubtic ondprvqle e.tiiies os iheir iurisd,ciions moy oppeor.
This document does noi repretenl o field boundory sLrrvey of lhe described propedy, o. ony po.t or porcel thereof.
SURVEYOR'S CERTIFICATE:
I hereby certify: Thot lhis "Skelch lo Accornpony tegol Description, ond the Survey Mop reruliing iheref.om wos perlorrned under my direction ond is lrue ond correct tothe best oi rny knowledge q.d beliel o.d lurther, ihoi soid "Skeich to Accompony Legol Desciption" meets the inient of the oppllcoble provislons of tne ,,Minimum
Technicol Stondords for tond Surveying in lhe Slo te of t ondo", puEuont io Rule 5J- I7.051 lhrough 5J-l 7.052 oi th e Floridc Administrotive Code ond ils implemenilng low,
C" op-et 412.027 ol'he rloioo StotJ?es.
LONGITUDE SURVEYORS LIC-, o Floridc: Limiied Lrobitiiy Compony
Florido Ceriificole ol Auihodzotion NLJmber 187335
LE)}'SIIYPS By:
59OO NW 79TH AVENUE. SUITE 6OI
DORAL, FL. 35I66
PHONE:(J0s)465-0912 FAX:(505)5 l5-5680
WWW, LONG ITUDESURVEYORS, COM
Jos6 S6ras, PSM
Registered Surveyor oni Mopper 1S5938
Stole of Flondc
NOTICE: Not vo id wilhout lhe signoture ond origino roised seol ol o Florido Licensed
Surveyor ond Mopper. Addillons or Celetions lo Survey Mops by oiher lhon the signing po.1./ ore
prohibiled wjthoui the wrilien consent of the signing party. JOB NO.: I33.t4
NOTICE: Not full and complete wilhout all two (2) pages.PAGE ] OF 2
L:\\r3ri4 Erucid uirni Beoch. Fl\dwg\siarch o.c Le!or,\tl3t4 sL 06 0.t t4d*9 6/a/7c1. .:|a:t: aar
612
rA_2r
LEGAL DESCRIPTION OF LINCOLN CENTER PARIilNG LOT
Lots 7 and 8 in Block 51-A, LINCOLN SUBDMSION, according to the Plat thereof, as
recorded in Plat Book 9, at Page 69, of the Public Records of Miami-Dade County, Florida.
Folio No. 02-3234002-0540
MIAMI 1275569.5 77 1372690t
613
EXIIIBIT "8"
SKETCH OF EASEMENT AREA
MIAMI 1275569.5 17 13126901
614
'..! _-.artrw615
EXHIBIT (I''
MAINTENANCE AGREEMENT
MIAMI 406593 5,6 80574t43097
616
MANAGEMENT AGREEMENT FOR MAINTENANCE
OF EUCLID STREET END PEDESTRIAN MALL
THIS MANAGEMENT AGREEMENT FOR MAINTENANCE OF THE EUCLID
STREET END PEDESTRIAN MALL is made and entered into as of the _ day of June,2014,
by and between the CITY OF MIAMI BEACH, FLORIDA, a municipal corporation of the State
of Florida (the "City"), and JAMECK DEVELOPMENT, INC., a Florida corporation
("Manager").
RECITALS:
B. On June 5, 2013, the City Resolutiirlr No. 21 03-28236,
City's PropertV, including but
installation of new hardscape,
approving a conceptual plan for
not limited to, the removal of the
landscape and street Iighting and the portion,id Avenue to vehicular traffic.
from Lincoln Road to the north part g
and
at the
("Li at 670 Lincoln Road, Miami Beach, Florida
("the
Agreement, recoiful,, offiffiF".*d.Public Records of
Miami-Dade County; Florida (ffi i'Original Development Agreement").
E. Section 52"f :gg the Development Agreement provides that: Developer shall
perform the following maintenance of the Euclid Project Improvements: (i) sweeping of the
street located within the Project Site; (ii) trash removal within the Project Site; and (iii)
maintenance of the landscaping contained within the Project Site.
F. In accordance with Section 52.6 of the Development Agreement, the City and
Manager desire to enter into this Agreement to set forth the terms and conditions of Manager's
management and oversight of the Project Maintenance Responsibilities (as defined below) of the
City Property.
MIAMI 1987129.6 77 t3726901
617
G. In accordance with Section 52.6 of the Development Agreement, the City and
Manager desire to enter into this Agreement to set forth the terms and conditions of Manager's
management and oversight of the Project Maintenance Responsibilities (as defined below) of the
City Property.
NOW, THEREFORE, for and in consideration of the premises and the mutual covenants
and agreements contained herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Recitals. The above recitals are true and correct and incorporated herein by
reference.
2. Retention. The City hereby retains Manager, and Manager hereby agrees to
provide management and oversight of the Project Maintenance Responsibilities, as more
particularly set forth herein. Manager shall use its reasonable efforts; skill. iudgment and
abilities in the discharge of its duties under this Agreement.
3. Services to be Performed bv Manaser. Manager agr&s to perform the following
functions and services with respect to the maintenance of fhe project Site (the Project
Maintenance Responsibilities) :
oval planter; and (iii) other small size a@ent palms trees, other shade trees, and other landscape
which may be introduced sirnriltaneously with or subsequent to the implementation of the Initial
Landscape Plan, a copy of..-whichis attached hereby as Exhibit "B".
Seotion 52.6 of the Development Agreement provides that: Developer
shall perform 1[9.fe[gwing maintenance of the Euclid Project Improvements: (i) sweeping of
th. S$eet lqqated,,within.Ihe Project Site; (ii) trash remova.l within the Project Site; and (iii)
mainknance of the larrdscaping contained within the Project Site, including but not limited to the
initial lardscape,\,r/hich Manager is required to provide, pursuant to the "Initial Landscape Plan,
as said Initial tandscape Plan may be replaced and/or modified by the City in the future.
Notwithstanding the foregoing, Manager shall not be responsible for sweeping or trash removal
of any areas within the Project Site, in which there is outdoor seating utilized by restaurants.
Thereafter, Manager will only be required to maintain the landscaping and the City shail be
responsible for replacement ofthe landscape, as needed, in the City's reasonable discretion.
(c) The Director of the Public Works Department of the City, or his designee,
shall be designated as the "Contract Administrator" for matters conceming this Agreement. The
City agrees that a single person shall serve as Contract Administrator under this Agreement and
MIAMI I 987129.6 77 13726901
618
the City shall notify Manager of the person who shall serve as Contract Administrator and of any
changes in who serves as Contract Administrator.
(d) Manager will be responsible to ensure that the Project Maintenance
Responsibilities meet the Cleanliness Index standards established by the City of Miami Beach,
which are set forth in the attached Exhibit "C".
(e) Manager will be responsible for the Maintenance Program meeting the
City of Miami Beach Grounds Maintenance Service standards, which are set forth in the attached
Exhibit "D".
4. Manager's Responsibilities. The liability and responsibility of Manager for a
default by it under the terms of this Agreement will be limited to the actual damages incurred by
the City, its officers, directors, agents, and employees resulting from Manager's breach under this
Agreement (after expiration ol any applicable notice and cure period) or Manager's willful
misconduct or gross negligence. Manager shall be responsible.for the negligence of Manager's
employees, agents, and/or contractors. In no event wiII ldAnager be liable or responsible for
consequential, incidental or punitive damages. It iS unders.tood that the responsibility for
compliance with laws in cormection with the Maintenance of the eity Property,, as lies within the
Manager's Project Maintenance Responsibililies, shall be the responsibility of the Manager.
Except as expressly set foflh in this AgreemenL Manager has made no representation whatsoever
to the City with respect to the maintenance Qf
within the purview of Manager's ProjeOi Main
of the Project Site, which does not fall
ibilities.
entered into by Manager with
rrProperty shall provide that such ContractorsContractors performing MaiptBnapce
indemnifi, and hold harmless and aqlindemnifr and hold hanalqss and Egr
action, claims, liabilities, demands, I<
and court costs at $el .and a{l appellate levels, which may be filed or made against Manager
andior the City, and.their respective officers, directors, parhers, agents, affiliates, employees,
successors q1$/orassigns, a$ aresult ofthe actions or inactions ofsuch Contractors in connection
with the Maintenance of'the City Property performed or required to be performed by such
defend the City from any and all actions, causes of
and expenses of any kind whatsoever for damage to
. Manager hereby indemnifies and holds harmless
and agrees,,to defend
demands, losips anddemands, 1 and expenses of any kind whatsoever for damage to property or injury to or
the City from any and all actions, causes of action, claims, liabilities,
death of persons, including, without limitation, reasonable attomeys'fees and court costs at trial
and all appellate levels, which may be filed or made against the City, and its respective officers,
directors, partners, agents, affiliates, employees, successors and/or assigns, as a result of the
actions or inactions of Manager in connection with the maintenance of the City Property
performed or required to be performed by this Management Agreement, except to the extent such
claims result from the Ciry's gross negligence or willful misconduct.
MIAMI 1987129.6 77 13726901
619
l. CooDeration. Should any claims, demands, suits or other legal proceedings be
made or instituted by any person against the City or Manager which arise out of the matters
relating to this Agreement, Manager or the City shall provide the other party all pertinent
information and reasonable assistance, in the defense or other disposition thereof.
8. Term. This Agreement shall commence on Final Completion of the Work and
continue until the date that is ten (10) years following the date thereof (the "Term"), unless
terminated sooner in accordance with the terms of this Agreement.
9. Default.
:
(a) If Manager breaches its obligations as specified hercin, theq the City shall
give Manager written notice specifuing the nature of the default and Mandger shall have thirty
(30) days after receipt of such notice within which to curq. the specified ilefault; provided,
however, if the nature of such default is such that the same oarmot reasonably be cured within
such thirty (30) day period, Manager shall not be deemed to ,be ia default if Manager shall,
shall not exceed ninety (90) days from the date ofthe itiilial wrifien notice of default from the
notice to Manager, terminate this
The City shall have the right to terminate
this r convenience at anv time upon ninety (90) days' prior written notice to
Manager.
1 1. Representations and Warranties by the City. The City represents and warrants to
Manager that (a) the City has all necessa.ry power to execute and deliver this Agreement and
perform all its obligations hereunder, (b) this Agreement has been duly authorized by all
requisite action on the part of the City and is a valid and legally binding obligation of the City
enforceable in accordance with its terms, and (c) neither the execution and delivery of this
Agreement by the City nor the performance of its obligations hereunder will result in the
MIAMI 1987129.6 77 13726901
620
violation of any law, rules or regulations or any other agreement to which the City is a party or is
otherwise bound.
12. Representations and Warranties by Manager. Manager represents and warrants to
the City that (a) Manager is a corporation duly organized, validly existing and in good standing
under the laws of the State of Florida, is authorized to transact business under the laws of the
State ofFlorida and has all necessary power to execute and deliver this Agreement and perform
all its obligations hereunder, (b) this Agreement has been duly authorized by a1l requisite action
on the part of the Manager and is a valid and legally binding obligation of Mdrr4ger enforceable
in accordance with the terms, and (c) neither the execution and delivery of this Agreement by
Manager nor the performance of its obligations hereunder will result in the violatian of any
provision of its anicles of incorporation or any other organizational o'r governing docurnent as
amended to date, or will conflict with (i) any law or any order or decree of any court or
governmental instrumentality having jurisdiction or (ii) any otler agreement to which Manager is
a party or is otherwise bound.
14.to the benefit oi and be
delivered oiia business &Y), as evidenced by the return receip ifsent pursuant to subsection (c)
or (d) qlOVg,
.at f.p-ad$rcss specified below, or to such other addresses as. either party may from
in uriting and delivery in a like manner. Notice given by an attorney for
eitherX4rty shall be dpemed as effective notice given by such party.
- Tlle City: City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
Attn: City Manager
Fax: (305) 673-7782
With a copy to:
City of Miami Beach
1700 Convention Center Drive
15. Notice. All noticgg, deman(.n, requ6ts, consents and approvals which may, or are
required to, be given by any p@ to any other F._SW thereunder shall be in writing and either (a)
personally delivered, (b) hansmrtqd by fax, (c) sent by United States mail, registered or
certified, postage prepaid, return recpjpt requested, or (d) sent by a nationally recognized
ovemight delivery service, $elght prepaid, return receipt requested, and addressed as follows,
and shall be deemed given r4pn receipt if delivered personally, upon the sending machine
printing a confirmatiQn of.;Sanarni.ssion, if transmitted by far, or upon the date of delivery (or
refusal to ffipl delivery) o,n, a business day (or the next succeeding business day, if not
MiAMr r987129.6 77 13726901
621
Miami Beach, Florida 33139
Attn: City Attomey
Fax: (305) 673-7002
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
Attn: Eric Carpenter, Public Works Director
Fax: (305) 673-7028
Manager:Jameck Development, Inc.
1300 Collins Avenue, Suite 100
Miami Beach, Florida 33139
Attn: Meh,yn Schlesser, President
Fax:305-531-4173
16.lnsurance.
(a)
Property against physical damage and
persons that might occur on the City to lhe Improvements located on the City
for the cost of repairing any damage to thePropeny. The City shall be responsible for
Improvements located on the City & fiowever, that in the event that the City
that there are insufficient (or no)
portion(s) of the City Property nor the Improvements pose a
serious threat to the'iubliclhgalt-&, safety, or welfare. The City shall notifu Manager within a
reasonable tllne'followiltg.*he:o+crrrence or event of damage, the repairs to be made and the
proposed tinpline for sarnp; notwithstanding, the City shall have sole and absolute control over
the mgqn*,,metbods,'a;ad materials, as it deems necessary, to prosecute any repairs, and shall
havs,.no liabilitv to Manager as result of same (nor shall any City determination or decision in
proseeuting any repairs be deemed a City default under this Agreement). Manager shall not be
responsib\, or lieble for making or paying for any such repairs, unless they relate to Manager's
Project Mairite&nce Responsibility.
(b) Contractor's Insurance. Manager shall provide, or cause to be provided
and thereafter maintain insurance coverage, in the following minimum amount unless otherwise
set forth in the construction contract between the City and the Contractor:
(D Workmen's Compensation - Statutory Amount;
(ii) Employer'sLiability($100,000minimum);
funds to repair the City koporty andior 't&p', Imp.orements to their existing condition
immediately prior to the egcurrence or event which caused the damage, then the City shall only
be obligated to initiate suc.h repairs to the extent that funding is available and identified and, even
then, the City's priority in rnffig such repairs (before any aesthetic consideration) shall first be
MIAMI 1987129.6 77 13?25901
622
(iiD Broad Form Commercial General Liability (naming the City and
Manager as additional insured): $1,000,000 per occurence, combined single limit; $2,000,000
in the aggregate;
(i") Auto Liability ($1,000,000 minimum); and
(v) Property Insurance: coverage for tools and equipment brought
onto or used on the City Property by the Contractors in an amount equal to replacement costs of
all tools and equipmenl.
All insurance policies required pursuant to this section shall have the City listed,in s*ch policies
as additional insureds. Each policy shall be primary and non-contribr*ory and Sall contain an
endorsement requiring thitty (30) days written notice from the insurance company to the City
before cancellation or any change in the coverage, scope or
least thirty
(30) days prior to the expiration date ofany policy. The procure an appropriate
clause in, or endorsement on, each of its insurance dltiiyiEs hereunder whereby the
insurer waives subrogation.
17. Partial Invalidity. In the everfi.that
clauses, or paragraphs contained in this Agpeem
unappealable order, decree, or judgment is Agreement shall be construed as if
such phrases, sentences, clauses, or inserted in this Agreement, it being
intended by the parties that the remainingprovi*iqni,o.f,Sis Agreement shall remain in full force
and effect notwithstanding such invalidatio&"
any one;eJ mgre of the phrases, sentences,
nt $a1l tie'declared invalid by final and
18. No Joint Vgture. It is not intendEd by this Agreement to, and nothing contained
in this Agreement shall,:create any partnership, joint venture, Iimited liability company or other
arangement between the Oity eqd Managpr other than that of owner and independent contractor.
No term or provisig4 of this Agreement is intended to be, or shall be, for the benefit of ary
person not a party here*o, and:iro such other person shall have any right or cause of action
19: 9_,"o,'reqiline,'[iaw. This Agreement and the rights of the parties hereto shall be
govmped.Ad coi*truddr'ia hccordance with the laws of the State of Florida and all claims related
to shall be brought and prosecuted in Miami-Dade County, Florida, which shal1
:nuO for all such matters. Before resorting to litigation, the parties agree to usebe the
ercra{y nable, good faith efforts to resolve disputes without litigation as hereinafter
provided. Irt the event of a dispute which the parties cannot resolve directly between themselves
within ten (10) days, the parties agree to submit to non-binding mediation for up to a period of
thirty (30) days after either party sends written notice to the other party demanding mediation
(but no longer unless the parties mutually agree) to resolve the dispute using an independent,
trained mediator agreed to by both parties. If the dispute remains unresolved after such thirty
(30) day period or if the parties cannot agree upon a mediator within fifteen (15) days after the
demand for mediation, either party may proceed to commence litigation. The parties shall
equally split the cost of the mediator.
MrAMr l 987 129. 6 7 7 t372690\
623
20. Enforcement. In the event of any dispute under this Agreement conceming the
meaning or interpretation of any provision of this Agreement, the party not prevailing in such
dispute shall pay any and all costs and expenses reasonably incurred by the other party in
enforcing or establishing its rights thereunder, including, without limitation, court costs and
reasonable attomey's fees before and at trial and through all appellate levels.
21. Entire Agreement. This Agreement constitutes the entire agreement between the
City and Manager with respect to the subject matter hereof, and supersedes and replaces all prior
or contemporaneous discussions, negotiations, letters, memoranda or other corryunications, oral
or written, with respect to the subject matter hereof. This Agreement may only be subsequently
modified or amended in a writing signed by both the City and Manager.
22. Amendments. No change, amendment or modif,ication of this22. Amendments. No change, amendment or modification of this Agreement shall be
valid or binding upon the parties hereto unless such change, arnendment, or modific.alion shall be
in writing and duly executed by all panies hereto. The City and Manager. by mutual writren
agreement, can expand the scope of this Agreement to cover manag€ment of the maintenance of
other sections of Lincoln Road and/or the future Lincoltl
23. No Waiver. Any waiver by any party of a br*ach of any provision of this
insist upon strict adherence to any term ofthls
be considered a waiver nor deprive fhat p
adherence to that term or any other terrn Of
signed by the party to be
24.
n one or more occasions shall neither
right thereafter to insist upon strict
Any waiver must be in writing and
The parties to this Agreement hereby agree not to elect a
trial by jury of any issue iliable of right bv j"rv, and waive any right to trial ty j*V fully to the
extent that any such right sfu311 rlgw or hesQafter exist with regard to this Agreement or any action
trial byjury ofany
or proceeding in whieh morertljgn one of such parties may be involved. This waiver oiright to
trial by jrrty is givea kuewingly and voluntarily by the parties hereto, and is intended totrial by jury is given
encompass ipdividlally eap.! irqgtance and each issue as to wlich the right to trial by jury would
otherwise a4gue. rThe pryties hereto are each hereby authorized to file a copy of this paragraph
ln any couclusive evidence of this waiver.
, ,\
to the cffirary,
. Notwithstanding anlthing contained in this Agreement
occurrence of any claim under this Agreement or termination caused by
Manager'S,,.de the recourse of the City against Manager shall be limited to the actual
damages incwred by the City resulting from Manager's material breach under this Agreement
(after expiration of any applicable notice and cure period) or Manager's willful misconduct or
gross negligence for the recovery of any judgment from Manager,, it being agreed that any
officers, shareholders, partners, members, managers, directors, employees or agents of Manager,
any members in the entity comprising Manager and any subsidiaries or affiliates of Manager
shall never be personally liable for any such judgment and are hereby unconditionally and
irrevocably released, satisfied and forever discharged ofand from any and all actions, causes of
action, claims, demands, losses, costs and expenses, whether direct, contingent or consequential,
Iiquidated or unliquidated, at law or in equity, that the City has or may or shall have.
M.IAMI 1987129. 6 771372.6901 8
624
26. Exculpation of the Citv. Notwithstanding anything contained in this Agreement
to the contrary, upon the occurrence of any claim under this Agreement or termination caused by
the City's default, the recourse of Manager against the City shall be limited to the actual
damages incurred by Manager resulting from the City's material breach under this Agreement
(after expiration of any applicable notice and cure period) or the City's willful misconduct or
gross negligence, it being agreed that any employees or agents of the City shall never be
personally liable for any suchjudgment and are hereby unconditionally and irrevocably released,
satisfied and forever discharged of and from any and all actions, causes of action, claims,
demands, losses, costs and expenses, whether direct, contingent or conseque4tial, liquidated or
unliquidated, at law or in equity, that Manager has or may or shall have.
27. Counterpansl Facsimile. This Agreemenl" may be execuled ia counterparts, each
of which shall be deemed an original and all of which together shall constitutq.one and the same
instrument. A facsimile signature shall be deemed for all purposes to be an origi"al.
MIAMI 1987129.6 77 13726901
625
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed,
by and through their duly authorized representatives, as of the date first written above.
WITNESSES:CITY:
CITY OF MIAMI BEACH, FLOzuDA,
a municipal corporation of the State of Florida
By:
Sign Name: Philip Levine
Title: Mayor
ATTEST:
Print Name
Print Name
Sign
By:
Name: Rafael Granado
Title: City Clerk
MIAMI I 987 I 29.6 77 13726901
626
WITNESSES:MANAGER:
JAMECK DEVELOPMENT, INC.,
a Florida corporation
Melvyn Schlesser
President
Print Name
Sign
By:Sign
PrintName
MIAMT 1 987129.6 77 13726901
627
EXHIBIT "A"
CITY PROPERTY
MrAMI 1987t29.6 77 1372690t
628
SKECTH TO ACCOMPANY LEGAL DESCRIPTION
PORTION OF EUCLID AVENUE RIGHT OF WAY
BETWEEN LINCOLN ROAD & LINCOLN LANE
SOUIH RIGHI OF WAY LINE OF
UNCOLN RoAD (P.8. 6 , PG. 33)
LINCOLN ROAD
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. d-r --J I--lill*llill,I l lf,i I i
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LINCOLN LANt
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LOT 6
BLOCK 5OA
TINCOLN SUBDIVIS1ON
OF 'THE ALTON BEACH
REALTY COMPANY'
(P.8.9, PG.69)
LEG EN D:
P.O.C. = POINT OF COMMENCEMENT
P.O.B. = POINT OF BEGINNING
PC = POINT OF CURVATURE
PT = POINT ON TANGENCY
O.R.B. = OFFICIAt RECORDS BOOK
PG. = PAGE
f R= l s.oo' LLlL=zg,se' o >
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Y< A*
f,g f,<l'rJ - LLr*./) ,
NORTH RIGHT OT WAY
LINE OF LINCOLN LANE
- (P.8.6 , PG 33)
2,t- -i_t
.il
c.r I
I
toT 7
BLOCK 5IA
LINCOLN SUBDIVISION
OF 'THE ALTON BEACH
REALTY COMPANY'
(P.8.9, PG. 691
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3.5.0
JOB NO.i 13314
PAGE I OF 2
L:\lrrr. Erucjd L, ro Liicoi id, l,li.6i E!6.r i-\dr,l\s!.t.h.od Lrq.rs\t]l. sL o5-ot_r4.drg 6/a/?a1a a:2a:11 pu aal
NOTICE: Not full and complete without alltwo (2) pages.
L@Y"G-11YPE
5900 NW 79rH AVENIJE, SurrE 601
DORAL, FL. 55I66
PH0NE:(505)465-0912 FAX:(30s)515-5680
WWW. LONG ITUDESURVEYORS.COM
629
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I hereby certifyl Thoi this 'Sketch 10 Accompony Lego Descriplion" ond lhe survey Mo p resulling lheref ro m wos pedormed under my direclion ond is lrue ond correct lof.e best of my knowledge ond bel ef ond further, ihoi soid 'Skelch to Accompqny Legal Description" meets the intent of the opplicoble provisions of ihe ,,Mtnlmum
Choplet a72 A27 al he Flordo Sto-u'e,.
LEGAI, DESCR'P'ION:
A porlion of Euclid Avenue Righl-of-wsy os shown on the plol of "SECOND CoMMERCIAt suBDtDlvtstoN OF THE ALTON BEACH REALTy COMpANy", occoriing to the p ot
trhereof, os recorded in Plct Book 6, ot Poge 33. ond ti^.e plot of IINCOLN SUBDIVISION , occording to i.e plo'i lrhereof, os recorded in p oi Eook 9, ol poge 69, bothrecorded in the Public Records of Miomi-Dode Counly, Floddoj boLr.ded on lhe Nodh by ihe exlension oi the South Righl of Woy Line of Lincolr Rood; b;!nded on the
Soulh by ihe extension of the Norlh Right ot Woy Line oi iincoln Lone; bounded on the Eost by the Eosi Right of Woy tine of Euclld AvenLe ond bounded on the Wesi by
the West Right of Woy Line ol Euclid Avenue.
Soid porcel ol lono lying ond Seing in the City of Miomi 8eoch, Miomi-Dode Counly, Florido ond co.toining I0,578 SqLrore Feel, more or less, by colc! oiionr.
EFRTINENT INFORMATION USEO FOR SURVEY:
The Lego Descripllon of the Subject Porcelwos generoled from the fo lowing record docurrenls:
L Leose Agreemenl of the Stote of Florido, Boord of Truslees of ihe l.iernol lmprovement Fund, reccrded in Oillciol Records Book I I793, ot poge 339, Mimoi-Dode
Counly Records.
2. Leose Ag.eemeni of the Stqte oi florido, Boord of Truslees of lne ntemol l..proveme.t Fund, recoided ln Olficiol Records Book I I793. ot poge 334, Mirnoi DqdeCounty Records
Eeodngs 05 shown hereon ore bosed upon lhe West Line ol the Nw l/4 of Seciion 22, Township 52 South, Ronge 42 Eosl, Miomi-dode County, Florido, with on ossllmed
beoring ol 503'00 04 E.
E4SErvrElr9 4!!l!9! !84!9Eq
No iniormotiorl wo5 provided os lo ihe existence of ony eosel.nen'is other thot whol oppeors on the underlying Plol of record. pleose refer to the Limitotions ilern wilhrespeci lo possible resirictions of record ond util ly service5.
RESTRICTIONS:
properly thot qre not show. on thls Skeich or conloined wilhin thls reporl thot moy be found in lhe Pub lc Records of Miomi-Dode Counly, Floddo or ony other publrc ondpdvote eniiiies os lheir jLrrisdiclions nroy qppeor,
This documenl does not represenl o field boundory survey of the de5cribed prope4y, o. ony port or porcel thereof.
SURVEYORS CERTIFICATE:
SKECTH TO ACCOMPANY LEGAL DESCRIPTION
PORTION OF EUCLID AVENUE RIGHT OF WAY
BETWEEN LINCOLN ROAD & LINCOLN LANE
LONGITUDE SURVEYORS LLC., o Ftondo Lirniied Liobitiiy Compony
Flondo Cedificoie of Aulhorizolion Number 1B7335
Lgt|tg',IYPS
59OO NW 79TH AVENUE, SUITE 6OI
DORAL, FL. 55I66
PHONE:(505)465-0912 FAX:(J05)515-5680
WWW, LONGITUDESURVEYORS. COM
Jose Seras, PSM
Regislered Suryeyor ond Mqpper 155938
Stote of Floddo
NOTICET Not volid wiihout the signolure ond originol roised seol of o florido Licensed
Surveyor ond Mapper. Addilions or deleiions io Survey Mops by other lnon the signing pctr./ oreprchibiied wiihoLJt the written consen t of the signing poriy. JOB NO.: 13314
NOTICE: Not full and complele wilhout all two (2) pages. pAGE I Of 2
L \rrr11 EJ.d Ln ro L.coln id, Man Beocl Fl\dr!\sk.tch crd !.93s\rj3r4 sL 06 03-rr.wq 6/3/701L ..2a.r pr aar
8y.
630
EXHIBIT "B"
CLEANLINESS INDEX STANDARDS
MIAMI 1987129 6 77 13726901
631
EXHIBIT "C''
GROUNDS MAINTENANCE SERVICE STANDARDS
MIAMI 1 987 129. 5 7'.1 137 2690 1
632
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"' li,lil,iiBEACl-l CIry OF MIAMI BEACH
NOTICE OF PUBLIC HEARING
NOTICE lS HEREBY glven that a Fi6l R€ading/Publc Hearnrg willbs held by the Mayorand C]ty Commission ot lhe Cityot M amr Beach, F onda,
ln th€ Commiss on Chambers, 3rd floo r, C ity Ha , I 7OO Convent on Cen ier Onve, Miam Beach, Frori d a, on Wednesday. Ju6e i I , a) 1 4, to conside.
the following:
1t:05a.m.
Euclid Righl Of way Project:A Resolltion To Consider Approval, Following Firsr Bendi.g/pubtrc Heanng, OI A Devetopm€m Agre€ment Eerwe€nrhe Citv O, M ami Beach (C ly) And Jameck Dovelopmenl, nc. (Jameck, Develope.) For Ths Dssign, Devetopment, And Consiruct,on Of Certainslreetscap€ lmprcvemenl n The cityt Right of wax At The Podion ol Euolid Avenue Beiween unc;h Road And Ltncoh Lan€ solrh (Euclid Fighl
Ol Way Proieci), locludrng, Withoul Limitation, Removal Ol The Disconnecl vault Ad Landscape, tnstatlaton Of New Hardscape, Landscapg,Str€el Ughung, And Closure OI A Portion Ol Euclid Avenue To Vehlcular Trattic As Part O, An Exrens on OI Lncotn Boad pedsstdan Mall; SaidPrqect Havjng A Total Bldgel bost To Th6 City, ln The Iolal Sum 01$485,821, Appropdated From Mrami aeach R€d€vstopment Agency (Hisrorc
Convention Vllag€r'Crv Cenler RDA) Flndsr And Further S€rting The Smond And Ftoat Read ng Ot The Devetopment Agreem"nt foil r,-"
Cerlain On Juty 23, 2014_
lrquires nay ba d@.led ta the Taunsm, Cufture & Ecanomic De€too/tP'nt Depannent at 305-6/3-15/t.
A copy of ttte praqsod Dc!€lopmnt Ag.eemnt is availabte fot inspeclan and may be abtaned by 'nqu hg at lhe Ary At]tr,'7E.y s OfticeK)5$73 747A, 170A Conventian Centel Dlive, 4," Ftooa Miami Beach, Ftoada 33139
nieresGd pades are inviled lo appear at this m€eiing, or be represented by an ag€nt, or ro exp.ess fllen vres in witing addr€ssed 10 ihe CiryCommission, c/o the City Cleft, 1700 Conventi'rn Center Drive, 1n Floor, Ciry Hatt, Mtami Beach, Florida 33139. Copies of this irem is ava labte torpublic insp€ction dunng no,mal busin€ss ho! ls in t he C riy Cl6rt s Ot ice 1 700 Con vcnt on Genter Dnve, I j Ftoo( Ctty Ha l. lV jami Beach, Fto da33r39. This meeung. or any nem herein, may b€ continued, and under slch crrcumsrances, add lronat legat notrce need not b€ provided.
Pulsuant io Secion 286.01 05, Fta. Stal. , thB Crty hereby advises ih e pu blic th ai f a psrson decrdes to appeal arry decis on made by rhe Cir/
Co.rxnission wilh respectlo any maller considered at its meetrng or its hearing, such person must ens!T€ that a verbatim record otthe p.oceed ngsis mad€ thich re.o.d inclldes lh€ lest mo ny aod 6videnc6 upon whach rhe appear is lo De bas€d This notice doe3 not cons trture consent by the
Citv tor the int odlction or admision of olheNise inadrnissible or krelevanr evidence, no. does it auiho.rc chaleogss or appeats not otherwi3e
To req!esl lhis mate.ial ln acce$ibte lormai si$ tanguage nterpretels, in Iolmalion oo access tor persons with disabitiiies and/or ary accommod aionlo r€visw ary docume.t o. participale in any City-sponsored proceedirg, please conracr us f ve dars in advance ar 305.673.74f l(vo ce) or TTy
users may aJso ca l1h6 Floida Retay SeNce ar 711
Aafael E Granado City Clerk
C ry oi Miami Eeach
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