R7E-Approve Development Agreement 8701 Collins Development LLCg MIAMIBEACH
City of Miami Beach, 1700 Convention Center Drive,
www. miamibeachfl.gov
Miami Beach, Florida 33139,
COMMISSION MEMORANDUM
TO: Mayor Philip Levine and Memberspf the City Commission
FROM: Jimmy L. Morales, City Ma
Raul Aguila, City Attorney
DATE: November 19,2014
SECOND READING
PUBLIC HEARING
SUBJECT: A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE
CITY OF MIAM! BEACH, APPROVING, FOLLOWING SECOND READING/PUBLIC
HEARING A DEVELOPMENT AGREEMENT AS AUTHORIZED UNDER SECTION
118-4 0F THE CITY CODE, AND SECTTONS 163.3220 163.3243, FLORTDA
STATUTES, BETWEEN THE CITY AND 8701 COLLINS DEVELOPMENT, LLC
("8701"), WHICH DEVELOPMENT AGREEMENT: (1) MEMORIALIZES THE
CONDITIONS FOR VACATING THE CITY'S RIGHT OF WAY AT 87TH TERRACE
EAST OF COLLINS AVENUE ("C!ry PARCEL"I; Ql GRANTS TO THE CITY A
PERPETUAL PEDESTRIAN ACCESS EASEMENT ACROSS A PORTION OF THE
VACATED CITY PARCEL; (3) ENSURES THE PAYMENT TERMS FOR 8701'5
PAYMENT OF A VOLUNTARY MONETARY CONTRIBUTION, IN THE AMOUNT OF
$10.5 MILLION DOLLARS, TO BE USED BY THE CITY FOR PUBLIC PURPOSES;
AND (4) DELINEATES THE CONDITTONS FOR THE CONSTRUCTTON OF THE
PROJECT LOCATED AT 8701 COLLINS AVENUE AS A HOTEL AND/OR
RESIDENTIAL CONDOMINIUM SITE.
On September 17th, 2014, after second reading public hearing, the City
Commission approved Resolution No. 2014-28754, and shall be referred to as the
"Vacation Resolution", approving with conditions, the vacation of a 50 foot wide right-of-
way, running from Collins Avenue, east 360 feet to Tract "A", currently known as 87th
Terrace (hereinafter "City Parcel") in favor of 8701 Collins Development, LLC ('8701').
ln contemplation of the hotel, condo-hotel and/or residential condominium
Project, 8701 is required to enter into a Development Agreement with the City pursuant
to Sections 163.3220 - 163.3243, Florida Statutes ("Development Agreement") to
memorialize the terms and conditions of the Project, including the vacation of the City
Parcel, and any other conditions imposed by the City Commission. The material
provisions of the attached Development Agreement include:
Asenda,:ru#4f
621
Development Agreement with 8701 Collins Avenue LLC, Second Reading - Public Hearing
November 19, 2014 Page 2 ol 3
The zoning district requirements for the RM-2 district and permitted uses for the
site. The City is also provided the right to enforce certain "quality of life" issues
and laws that may be enacted after execution of the Development Agreement.
Payment terms for the voluntary public contribution (hereinafter the "Voluntary
Contribution") of $10.5 Million to the City in connection with the vacation of the
City Parcel. All funds shall be allocated to public projects in North Beach, as
shall be determined by the City Commission, in its sole and reasonable
discretion. On October 29,2014, the City Commission enacted Resolution 2014-
28815, which accepted the recommendation of the Finance and Citywide
Projects Committee with respect to disposition of the Voluntary Contribution.
8701 will make the first payment, in the amount of $1,000,000, within ten (10)
business days following the City Commission's final approval of the Development
Agreement. This payment will be non-refundable.
8701 will apply for a full building permit for the Project, using commercially
reasonable efforts, no later than February 19, 2016.
8701 will pay the City $4.5 million on the earlier of: (i) within ten (10) business
days of the issuance of a full building permit for the Project, or (ii) November 19,
2016. The actual vacation of the City Parcel shall be effective as of the date the
8701 makes the $4.5 million payment. The $4.5 million payment shall be non-
refundable.
8701 will pay the remaining $5 million in four (4) equal payments of $1.25 million
every six (6) months starting on the earlier of: (i) six (6) months after the City's
issuance of the full building permit for the Project, or (ii) May 19,2017; provided,
however, that the entire amount remaining to be paid shall be paid ten (10) days
prior to the issuance of a temporary certificate of occupancy (TCO) or certificate
of occupancy (CO), whichever comes first, for the Project. The City may
condition and withhold the issuance of the TCO or CO for the Project upon full
and final payment of the remaining balance of the Voluntary Contribution. The $5
million payment shall also be non-refundable. Please note, that a condition of
the vacation resolution was that should litigation ensue, the City, at its option,
could return the final $5,000,000 payment and rescind the vacation of 87th
Terrace. This became a financing issue for developer. The term was modified to
reflect that the final $5,000,000 payment is nonrefundable. Either way, 8701 is to
indemnify and hold the City harmless, and pay for counsel of the City's choice
should there be litigation relating to the Development Agreement.
Conditions for transfer to the City a perpetual public pedestrian access easement
over a portion of the City Parcel (vacated ROW), in order to provide beach
access to the public (the "City Easement"). The proposed easement shall be
held in escrow, pending closing on the Development Agreement, and the
conditions relating to same. 8701 shall provide $350,000 towards the
construction of the City's easement area.
The maintenance agreement for 87th Street is an exhibit to the Development
Agreement and includes a voluntary proffer by the developer of $750,000, in hard
costs, towards the development of the street.
A preclusion from 8701 in assigning or transferring its rights under the
622
Development Agreement with 8701 Collins Avenue LLC, Second Reading - Public Hearing
November 19, 2014 Page 3 ot 3
Development Agreement until after the earlier of (i) issuance of a Certificate of
Occupancy ("CO") for the Project, or (ii) the payment of all of the Voluntary
Contribution.. Reimbursement by 8701 of City's outside counsel costs in preparing the
Development Agreement. The City Attorney has hired Stacy H. Krumin, of
Squire Patton Boggs (US) LLP, to assist with the expedited drafting of the
Development Agreement.
The City Attorney's Office and the City Manager's Office received red-lined
comments to the attached Development Agreement during the evening of October 27,
2014. During the October 29, 2014 City Commission meeting, following a duly noticed
public hearing, the City Commission approved the draft Development Agreement on first
reading (Resolution No. 2014-28814). Thereafter, the City Attorney and 8701
negotiated the final terms of the Development Agreement (attached).
The City has complied with all notice requirements of Section 118-4 and Section
1 63.3225, Florida Statutes.
Recommendation:
The City Manager and City Attorney's Office recommends that the City
Commission approve the Resolution and the attached Development Agreement, after
second reading/public hearing; and authorize the Administration and the City Attorney's
Office to proceed to Closing on the Development Agreement.
623
RESOLUTION NO.
A RESOLUTION OF THE MAYOR AND GITY COMMISSION OF THE CITY OF
MIAMI BEACH, APPROVING, FOLLOWING SECOND READING/PUBLIC
HEARING A DEVELOPMENT AGREEMENT AS AUTHORIZED UNDER
sEcfloN 118-4 0F THE CITY CODE, AND SECTTONS 163.3220 - 163.3243,
FLORIDA STATUTES, BETWEEN THE CITY AND 8701 COLLINS
DEVELOPMENT, LLC ("8701"), WHICH DEVELOPMENT AGREEMENT: (1)
MEMORIALIZES THE CONDITIONS FOR VACATING THE GITY'S RIGHT OF
WAY AT 87TH TERRACE EAST OF COLLINS AVENUE ("CITY PARCEL"); (2)
GRANTS TO THE CITY A PERPETUAL PEDESTRIAN ACCESS EASEMENT
ACROSS A PORTION OF THE VACATED CITY PARCEL; (3) ENSURES THE
PAYMENT TERMS FOR 8701'S PAYMENT OF A VOLUNTARY MONETARY
CONTRIBUTION, IN THE AMOUNT OF $10.5 MILLION DOLLARS, TO BE
USED BY THE Clw FOR PUBLIC PURPOSES; AND (4) DELINEATES THE
CONDITIONS FOR THE CONSTRUCTION OF THE PROJECT LOCATED AT
8701 COLLINS AVENUE AS A HOTEL AND/OR RESIDENTIAL
CONDOMINIUM SITE.
WHEREAS, on September 17t^,2014, after second reading public hearing, the City
Commission approved Resolution No. 2014-28754, attached and incorporated as Exhibit "A"
hereto and also referred to as the "Vacation Resolution", approving, with conditions, the
vacation of a 50 foot wide right-of-way, running from Collins Avenue, east 360 feet to Tract "A",
currently known as 87th Terrace (hereinafter "City Parcel"), in favor of 8701 Collins
Development, LLC ("8701"); and
WHEREAS, 8701 owns the Dezerland Hotel, located at 8701 Collins Avenue
(hereinafter the "Property"), which is located to the south of and adjacent to the City Parcel, and
intends to redevelop the Property, together with the parking lot located on the north half of the
Property and portions of the City Parcel, into a hotel, condo-hotel, and/or residential
condominium (hereinafter the "Project"); and
WHEREAS, in contemplation of this Project, 8701 will be seeking to enter into a
development agreement with the City pursuant to Sections 163.3220 - 163.3243, Florida
Statutes ("Development Agreement") to memorialize certain terms and conditions pertaining to
the development of the Project, including the vacation of the City Parcel, and any other
conditions imposed by the City Commission; and
WHEREAS, Sections 163.3220 - 163.3243, Florida Statutes, and Section 118-4 of the
City's Code require two public hearings on the Development Agreement; and
WHEREAS, the City and 8701 have negotiated the attached Development Agreement
which provides, amongst other things, the following terms and conditions:
a. 8701 shall make a voluntary public contribution (hereinafter the "Voluntary
Contribution") of $10,5 Million to the City in connection with the vacation of the City
Parcel, with such funds to be payable in accordance and subject to the terms of the
Development Agreement.
b. 8701 shall develop and construct the Project consistent with the RM-2 zoning
regulations and the terms of the Development Agreement;
624
c. 8701 shall transfer to the City a perpetual public pedestrian access easement over a
portion of the City Parcel, subject to the review and approval of City staff, not to be
unreasonably withheld, in order to provide beach access to the public (the "City
Easement");
d. the City Easement shall be improved as part of the Project and shall be open to
the public and no later than the date a TCO or CO (whichever comes first) is issued for
the Project. 8701 shall be solely responsible forall costs and work associated with the
improvement (including, without limitation, the planning, permitting or construction) of the
vacated City Parcel, as part of the Project including, but not limited to resurfacing,
drainage, landscaping, hardscaping, sidewalks, irrigation, signage, beach access
signage, lighting, design and construction of the City Easement;
e. 8701 shall be responsible for the safety, security and maintenance of the City
Easement;
f. 8701 will enter into a Maintenance Agreement for the 87th Street City right-of-way,
allowing 8701 to develop, maintain, pave, drain, light, landscape and install street
furniture along this right-of-way in order to open the road to pedestrian traffic;
g. except as to involuntary transfers (as shall be defined in the Development
Agreement and which will include, without limitation, foreclosure transfers and transfers
in lieu of foreclosure), 8701 shall not be entitled to assign or transfer its rights under the
Development Agreement until after the earlier of (i) issuance of a Certificate of
Occupancy ("CO") for the Project, or (ii) the payment of all of the Voluntary Contribution.
Any such transferee shall assume all remaining obligations of 8701 under the
Development Agreement including, without limitation, (i) 8701's obligation to grant and
improve the City Easement and (ii) to improve the 87th Street right-of-way; provided,
however, that as to subsection (ii) the City may, at its sole discretion, elect not to
proceed with, or terminate (as the case may be) the Maintenance Agreement for the
87th Street right-of-way;
h. 8701 shall reimburse the City for any attorney's fees incurred by the City for
outside counsel's review and negotiation of the Development Agreement, including
related agreements, not to exceed reasonable amounts, as mutually agreed upon by the
Parties (which counsel shall be selected and approved by the City Attorney); and,
WHEREAS, following a duly noticed public hearing on October 29, 2014, the City
Commission approved the Development Agreement on first reading, pursuant to Resolution No.
2014-28814.
NOW THEREFORE BE IT DULY RESOLVED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City
Commission hereby approve, following second reading/public hearing, a Development
Agreement as authorized under Section 118-4 of the City Code, and Sections 163.3220 -
163.3243, Florida Statutes, between the City and 8701 Collins Development, LLC ("8701"),
which Development Agreement (1) memorializes the conditions for vacating the City's Right Of
Way at 87th Terrace east of Collins Avenue ("City Parcel"); (2) grants to the City a perpetual
pedestrian access easement across a portion of the Vacated City Parcel; (3) ensures the
payment terms for 8701's payment of a Voluntary Monetary Contribution, in the amount of $10.5
625
million dollars, to be used by the City for public purposes; and (4) delineates the conditions for
the construction of the Project located at 8701 Collins Avenue as a hotel and/or residential
condominium site.
PASSED and ADOPTED this day of November, 2014.
ATTEST:
Philip Levine, Mayor
Rafael E. Granado, City Clerk
626
This instrument was prepared by (record
Jeffrey Bercow, Esq
Bercow Radell & Fernandez,P.A.
200 S. Biscayne Boulevard, Suite 850
Miami, Florida 33131
(30sl377-6220
and return to):
(Space reserved for Clerk)
DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT (the "Agreement") is made and entered into as of the
day of 2074, by and among the CITY OF MIAMI BEACH, a Florida
municipal corporation (the "City"), and 8701 COLLINS DEVELOPMENT LLC, a Delaware limited
liability company (the "Owner"):
lntroduction
A. The property that is the subject of this Agreement lies in Miami Beach, Miami-
Dade County, Florida. This Agreement, among other things, is intended to and shall constitute
a development agreement between the parties pursuant to Sections 153.3220-763.3243,
Florida Statutes, the "Florida Local Government Development Agreement Act" and Section 1L8-
4 of the City's Code.
B. The Owner owns the property located at 8701 Collins Avenue, Miami Beach,
Florida (the "Property") and intends to redevelop the Property with a hotel and/or residential
development substantially in accordance with the provisions contained in this Agreement.
C. The City is desirous of improving 87th Street which abuts the Property to the
south, and 87th Terrace, which abuts the Property to the north, and has agreed to vacate the
public right-of-way on 87th Terrace and enter into a maintenance agreement with Owner for
87th Street in order to enhance access to the beach and improve the aesthetics of the area.
285861/9/TAMPA
627
D. The City wishes to obtain from the Owner, and Owner is willing to grant, a
permanent pedestrian access easement over 87th Terrace, to provide the public with pedestrian
access from Collins Avenue to the beach.
E. Pursuant to City Resolution No. 2014-28754 (the "Vacation Resolution"), the City
approved the vacation of 87th Terrace, subject to and conditioned upon the terms and
conditions contained in such Vacation Resolution, including, without limitation, (1) the grant by
the Owner to the City of the 87th Terrace Easement; (2) the Owner and City entering into the
maintenance agreement for 87th Stree! (3) the Owner's commitment to expend funds and
prepare the 87th Street Plans and the 87th Terrace Plans at the Owner's expense; (a) the
Owner's commitment to expend funds and construct the 87th Street lmprovements and the 87th
Terrace Easement lmprovements at the Owner's expense; and (5) the Owner's commitment to
provide the City with a voluntary monetary contribution of 510,500,000 (the "Voluntary
Contribution")to be allocated as described in SectionT of this Agreement.
F. The City is a Florida municipal corporation with powers and authority conferred
under the Florida Constitution, the Municipal Home Rule Powers Act, Florida Statutes and the
Miami Beach City Charter and Code of Ordinances. The City has all governmental, corporate
and proprietary powers to enable it to conduct municipal government, perform municipal and
governmental functions, and render municipal services, including the authority to adopt,
implement and enforce (together with any other required governmental approvals)
comprehensive plans, zoning ordinances, redevelopment plans, and other police power and
legislative measures necessary to assure the health, safety and general welfare of the City and
its inhabitants.
G. Having fully considered this Agreement at two duly noticed public hearings in
compliance with Section L63.3225 of the Act; having determined that the Project and this
Agreement are in compliance with the City's Comprehensive Plan and Land Development
Regulations as of the Effective Date; and having further determined that it is in the City's best
interest to address the issues covered by this Agreement in a comprehensive manner, in
compliance with all applicable laws, ordinances, plans, rules and regulations of the City, the
City has agreed to enter into this Agreement with the Owner.
H. The City has determined that the Project, the 87th Street and 87th Terrace
Easement lmprovements, and the Voluntary Contribution will benefit the City and the public.
The Project and the 87th Street and 87th Terrace Easement lmprovements will improve a
northern entrance to the City and a significant North Beach location. The Project is compatible
with the area and will serve as a catalyst in the City's continuing efforts to revitalize the North
Beach area. The 87th Street lmprovements and the 87th Terrace Easement lmprovements will
28586'l/9/TAMPA
628
renovate and beautify the northern end of North Shore Open Space Park and provide public
pedestrian access to the beach.
l. All capitalized terms used in this lntroduction are defined in Section 3 or
elsewhere in this Agreement.
NOW, THEREFORE, in consideration of the foregoing, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties
hereby-agree as fol lows:
1. Recitations. The foregoing recitations are true and correct and are incorporated
herein by this reference.
2. Authoritv. This Agreement is entered into pursuant to the authority and
procedures provided by the Act.
3. Definitions. All capitalized terms in this Agreement shall have the definitions set
forth in this Section unless such terms are defined elsewhere in the body of this Agreement.
3.1 "Ac!" shall mean the Florida Local Government Development Agreement
Act (Sections 163.3220 - L63.3243, Florida Statutes (2014)).
3.2 "@9" shall refer to the formal exchange of documents between the
parties, as further described in Section 13 of this Agreement.
3'3,,@,,shallmeanthecomprehensiveplanwhichtheCity
has adopted and implemented for the redevelopment and continuing development of the City
pursuant to Chapter 163 Part ll, of the Florida Statutes.
3.4 "Development Order" means any order granting, denying, or granting
with conditions an application for a Development Permit.
3.5 "Development Permft" shall have the meaning set forth in Section
1,63.322L(5), Florida Statutes (201,4).
3.6 ".Effective Date" is the date when the City records the executed
Agreement in the Public Records of Miami-Dade County, as provided in Section L63.3239,
Florida Statutes (2OL4), and Section 19(a) of this Agreement.
3.7 "Executien_DAle" is the date the last of the required parties executes this
Agreement.
3.8 "Land Development " shall have the meaning set forth in
Section L63.3227(8), Florida Statutes (20L4) and shall also include, without limitation, the
definition of "land development regulations" in Section !L4-t of the City Code.
285861/9/TAMPA
629
3.9 "La\MS/' means all ordinances, resolutions, regulations, the
Comprehensive Plan, Land Development Regulations, and rules adopted by a local government
having jurisdiction affecting the development of land, specifically including the City's
Comprehensive Plan and the City's Land Development Regulations.
3.10 "Proiect" shall mean the construction and development of the Property
(as defined in Section 3.11 below and to include the Owner's right, title and interest to the 87th
Terrace Property after the 87th Terrace Vacation Date) consistent with the RM-2 zoning
regulations of the City's Land Development Regulations and the following provisions (with the
stricter of the two prevailing):
(a) The maximum total floor area permitted upon the Property shall not
exceed that provided by the City's Land Development Regulations for the purposes of
determining population densities and building intensities as required by the Act. ln the event
that the existing hotel is retained and the Property is developed as two building sites, the
maximum permitted floor area on the Property shall be 260,085 square feet. ln the event that
the hotel is removed and the Property is reduced to a single building site, the maximum floor
area developed on the Property shall be 202,358 square feet.
(b) The height of any habitable building on the Property shall not exceed 200
feet to the top of the roof, and architectural projections will comply with the terms of the City's
Land Development Regulations.
(c) The uses permitted on the Property shall be up to 232 residential units,
including single-family detached dwellings; townhomes; condominiums; apartments;
apartment-hotels; hotels; condo/hotel units; and appurtenant facilities, including, without
limitation, (i) facilities for conventions, banquets and other functions; (ii) spa; (iii) restaurants
(subject to compliance with the City's neighborhood impact establishment regulations); (iv)
parking facilities; (v) administrative office space; and (vi) any other hotel related uses including
accessory uses commonly associated with hotels, as permitted under the City's Land
Development Regulations; provided, however that in no event shall more than twenty-five
percent (25%) of the accessory use be that which is generally classified as a "place of assembly"
or "hall for hire" by the City.
(d) The Project shall include on-site parking in accordance with the
provisions of the City's Land Development Regulations.
(e) The Owner shall cause the completion of the Project and shall obtain a
certificate of occupancy or certificate of completion, as applicable, within five (5) years of the
Effective Date.
3.11 "&pCI!y" shall mean the parcel of real property described in Exhibit A
hereto. From and after the 87th Terrace Vacation Date, the Property shall include all of the
Owner's right, title and interest in and to the 87th Terrace Property pursuant to the vacation of
285861/9/TAMPA
630
87th Terrace as approved pursuant to, and subject to and conditioned upon, the terms of the
Vacation Resolution.
3.1,2 "@!gI" means the person or entity undertaking the development of the
Property, as defined in the preamble to this Agreement, or any permitted successors, assigns,
or heirs thereof.
3.13 "Vacation Resolution" means the City's Resolution No. 2OL4-28754,
approving, with conditions, the vacation of the 87th Terrace Property.
3.t4 "87th Street Maint " shall mean the agreement
between the City and Owner relating to the use, improvement, maintenance and operation of
the public pedestrian access area located on the 87th Street Property, which agreement shall be
in the form attached hereto as Exhibit B.
3.15 "87'h Street Propertv" shall mean the area described in Exhibit "A" to the
87th Street Maintenance Agreement.
3.16 "87th Terrace Easement" shall mean a perpetual easement for public
pedestrian traffic on, across and through the 87th Terrace Property for the purpose of allowing
pedestrians to continue to use a portion of the 87th Terrace Property for public access to the
beach and Atlantic Ocean, which easement shall be in the form attached hereto as Exhibit C.
The property subject to the 87th Terrace Easement shall be referred to as the "87th Terrace
Easement Propertv".
3.L7 "87th Terrace Propertv" shall mean the area described in Exhibit "A" to
the 87th Terrace Easement.
3.18 "87th Terrace Vacation Date" shall mean the date when the actual
vacation of the 87th Terrace Property becomes effective in accordance with the terms of the
Vacation Resolution, and as set forth in subsection 6(bXiii) of this Agreement.
3.19 "87th Street lmprovements" shall mean the improvements to be made to
the 87th Street Property as depicted in the 87th Street Plans, and as further described in Section
8 of this Agreement.
3.20 "87th Terrace Ease " shall mean the improvements to
be made to the 87th Terrace Property as depicted in the 87th Terrace Plans, and as further
described in Section 9 of this Agreement.
3.2L "87th Street Plans" shall mean the plans, designs, and drawings including
any revisions and enhancements thereto, depicting the 87th Street lmprovements, as further
described in Section 8 of this Agreement.
285861/9/TAMPA
631
3.22 "87th Terrace Plans" shall mean the plans, designs, and drawings including
any revisions and enhancements thereto, depicting the 87th Terrace Easement lmprovements,
as further described in Section 9 of this Agreement.
4. 87th Street Maintenance Agreement. Subject to the terms and conditions of this
Agreement, at the Closing the Owner and the City shall execute the 87th Street Maintenance
Agreement in the form attached hereto as Exhibit B.
5. 87th Terrace Easement. Subject to the terms and conditions of this Agreement
and the Vacation Resolution, the 87th Terrace Easement shall be granted by the Owner to the
City and recorded in the Public Records of Miami-Dade County, Florida, promptly after the 87th
Terrace Vacation Date, and shall be in the form attached hereto as Exhibit C.
6. Vacation of 87th Terrace and Voluntarv Contribution.
(a) The Owner submitted an application to the City for the vacation of 87th
Terrace and, on September 77'h, 2014, after second reading public hearing, the City
Commission approved the Vacation Resolution. The 87th Terrace Property shall be included
within the Property as of the 87th Terrace Vacation Date. At that time, the City shall deliver to
Owner all instruments reasonably required to effectuate the vacation of the 87th Terrace
Property, including, without limitation, a certified copy of the executed Vacation Resolution.
(b) As a condition to the City's approval of the Vacation Resolution, Owner
shall make a Voluntary Contribution to the City, in the amount of S10,500,000. Owner shall pay
the S10,500,000 Voluntary Contribution to the City as follows:
(i) The Owner shall make the first payment, in the amount of
51-,000,000, within ten (10) business days following the City Commission's (A)
approval of the Vacation Resolution and (B) final approval of this Agreement at
the second public hearing. This payment will be non-refundable.
(ii) The Owner shall apply for a full building permit, as such term is
defined in the City's Land Development Regulations, for the Project, using
commercially reasonable efforts, no later than Febru ary 79,2016.
(iii) The Owner shall pay the City S4.5 million on the earlier of (A)
within ten (10) business days of the issuance of a full building permit for the
Project, or (B) November t9,2OL6. Following the City's receipt of said payment
and so long as there is no pending or uncured Event of Default (as hereinafter
defined) hereunder, and Owner and City have successfully closed in accordance
with the requirements of Section 13 hereol the 87th Terrace Easement shall be
released from escrow and the 87th Terrace Vacation Date shall become effective.
Additionally, as of such date the 87th Terrace Easement Property shall be free
and clear of all liens, encumbrances, rights of occupancy, or other matters
except only for any then-existing mortgage encumbering the Property; provided
6
285861/9/TAMPA
632
that the holder of any such mortgage shall execute and deliver an appropriate
subordination agreement, in a form which will be reviewed and approved by the
City, in its reasonable discretion, subordinating the lien and rights of such
mortgage holder to the rights of the City and the public.
Notwithstanding the preceding, the occurrence of the 87th Terrace
Vacation Date shall not relieve Owner of its obligations to diligently prosecute
and complete the 87th Street and 87th Terrace lmprovements.
(iv) The Owner shall pay the remaining 55 million in four (4) equal
payments of S1.25 million every six (5) months starting on the earlier of: (A) six
(6) months after the City's issuance of the full building permit for the Project, or
(B) May L9,2017, provided, however, that the fourth and final installment shall
be paid no later than ten (10) days prior to the issuance of a temporary
certificate of occupancy (the "TCO"I or certificate of occupancy (the "CO"),
whichever comes first, for the Project. ln addition to declaring an Event of
Default under this Agreement, the City may condition and withhold the issuance
of the TCO and/or CO for the Project pending full and final payment of the
remaining balance of the Voluntary Contribution. The SS million payment shall
also be non-refundable, as and when each payment is made.
7. Citv Allocation of Voluntarv Contribution. The Voluntary Contribution will be
allocated in accordance with the terms of City Resolution No. 2014-28815.
8. 87th Street lmprovements. The Owner, at its sole expense, shall design, construct
and installthe 87th Street lmprovements.
(a) The Owner shall cause the 87th Street Plans to be prepared by an
architect or other design professional selected by the Owner and approved by the City (such
approval by the City shall be proprietary in nature, as the owner of such property, and is not to
be unreasonably withheld or delayed). The 87th Street Plans shall be submitted to the City, to its
City Manager, within ninety (90) days of the Effective Date. The City shall have twenty (20)
business days to review the 87th Street Plans and provide its written comments, if any, to
Owner. The Owner shall address such comments and respond with revised 87th Street Plans
within twenty (20) business days of its receipt of the City comments. This process shall be
repeated until the City approves the 87th Street Plans. Owner's failure to obtain the City's
approval of the 87th Street Plans by the date which is two hundred seventy (270) days from the
Effective Date shall be deemed an Event of Default under this Agreement.
(b) Within one hundred eighty (180) days after the City's proprietary
approval pursuant to subsection 8(a) above, the Owner apply for and diligently pursue all
required permits and final non-appealable approvals including, without limitation, all required
Development Orders and Development Permits, for the 87th Street lmprovements.
285861/9/TAMPA
633
(c) The existing geometry of 87th Street shall be substantially followed in the
design of the 87th Street lmprovements. No change in the location of the sidewalks, curbs and
gutters shall be permitted without the prior written consent of the City.
(d) The 87th Street lmprovements shall include, at a minimum, the following:
Lighting;
Resurfacing, drainage, hardscaping, paving;
Landscaping and related irrigation;
Outdoor seating and other outdoor furniture;
Sidewalk;
(vi) City-approved street signage; including directional signage, beach
access signage and similar signs (including private signage); and
(vii) Gates and fences (so long as at least a ten (10) foot access to the
beach always remains open).
(e) The Owner will complete the 87th Street lmprovements by the date of the
issuance of a temporary or final certificate of occupancy or certificate of completion, as
applicable, for the Project. The City may condition and withhold the issuance of the TCO or CO
for the Project pending completion of the 87th Street lmprovements.
(f) Owner hereby covenants and agrees that it shall invest, or cause to be
invested, no less than 5750,000 in hard construction costs for the 87th Street lmprovements.
Upon issuance of the TCO or CO for the Project, whichever is first, Owner shall certify to City
that it has, in fact, expended the aforestated construction costs.
9. 87th Terrace Easement lmprovements. The Owner, at its sole expense, shall
design, construct and install the 87th Terrace Easement lmprovements within the area
described in the 87th Terrace Easement.
(a) The Owner shall cause the 87th Terrace Plans to be prepared by an
architect or other design professional selected by the Owner and approved by the City (such
approval by the City shall be proprietary in nature, as the owner of such property, and is not to
be unreasonably withheld or delayed). The City shall review the 87th Terrace Plans as part of the
development permit package(s) for the Project. The 87th Terrace Plans shall be submitted to
the City, to its City Manager within ninety (90) days of the Effective Date. The City shall have
twenty (20) business days to review the 87th Terrace Plans and provide its written comments, if
any, to Owner. The Owner shall address such comments and respond with revised 87th Terrace
Plans within twenty (20) business days of its receipt of the City comments. This process shall be
(i)
(ii)
(iii )
(iv)
(v)
285861/9/TAMPA
634
repeated until the City approves the 87th Terrace Plans. Owner's failure to obtain the City's
approval of the 87th Terrace Plans by the date which is two hundred seventy (270) days from
the Effective Date shall be deemed an Event of Default under this Agreement.
(b) The Owner shall direct the construction process and be responsible for
entering into all contracts necessary for the construction of the 87th Terrace Easement
lmprovements and within one hundred eighty (180) after the City's proprietary approval
pursuant to subsection 9(a) above, the Owner apply for and diligently pursue all required
permits and approvals for the 87th Terrace Easement lmprovements with the City's
cooperation.
(c) The 87th Terrace Easement lmprovements shall include, at minimum, the
following:
Lighting within the Easement area;
Resurfacing, drainage, hardscaping, paving;
(iii) Landscaping and related irrigation either within or adjacent to the
87th Terrace Easement area designed in a manner that benefits the 87th Terrace
Easement;
(iv)Sidewalk within the Easement area;
(v) City-approved directional signage, beach access signage and
similar signs (excluding private signage) either within the Easement area or
immediately adjacent thereto; and
(vi) Gates and fences (so long as a ten (10) foot access to the beach
always remains open).
(d) The 87th Terrace Easement lmprovements must be completed by the
earlier of the date of the issuance of a TCO or CO for the Project. The City may condition and
withhold the issuance of the TCO or CO for the Project pending completion of the 87th Terrace
Easement lmprovements.
(e) Owner shall be responsible for the maintenance and security relating to
the 87th Terrace Easement area.
(f) Owner hereby covenants and agrees that it shall invest, or cause to be
invested, no less than S 35O,OOO in hard costs for the 87th Terrace Easement lmprovements.
Upon issuance of the TCO or CO for the Project, whichever is first, Owner shall certify to City
that it has, in fact, expended the aforestated construction costs.
(i)
(ii)
285861/9/TAMPA
635
10. Development Permits. Certain provisions of this Agreement will require that the
City and/or its boards, departments or agencies take certain governmental actions, acting in
their governmental capacity and issue Development Permits in order to accomplish and satisfy
the following:
(a) The inclusion of approximately 36,400 square feet of floor area
development rights in the Property as a result of the City's vacation of the 87th Terrace right-of-
way; and
(b)The authorization of the 87th Street lmprovements.
L7. Applications for Development Approvals and Development Permits. Promptly
following the effective date of this Agreement, the Owner will initiate and diligently pursue all
applications for Development Orders and Development Permits that were not previously
initiated. The City shall process all Development Permit and Development Order applications in
a timely fashion and join in application(s) as may be necessary. Notwithstanding the foregoing,
Owner shall be solely responsible for obtaining all final, non-appealable Development Orders
and Devetopment Permits for the Project, the 87th Street lmprovements and the 87th Terrace
Easement lmprovements. No extension of any time period herein shall be deemed to be an
extension of any time periods contained within the Development Permits or Development
Orders.
L2. Laws Governing this Agreement. For the entire term of this Agreement, the City
hereby agrees that the City's Land Development Regulations governing the development of the
Property as they exist as of the Execution Date of this Agreement shall govern the development
of the Property and the Project during the Term. Notwithstanding the foregoing, the City may
apply subsequently adopted laws or policies to the Property and the Project (particularly as
they may relate to qualify of life issues such as, but not limited to noise, litter, and hours of
operation) as permitted or required by the Act, including, without limitation, Section
L63.323312), Florida Statutes, as same may be amended from time to time; provided, however,
that this provision shall not be deemed to apply to regulations governing height, floor area ratio
(FAR), density, parking requirements or permitted uses.
13. Closing. So long as there is no pending or uncured Event of Default, the parties
shall exchange (or deposit into escrow) those document as set forth below to effect the Closing
hereunder. The Closing will occur within thirty (30) days of the Effective Date.
(a) At the
escrow the following items:
Closing, the City shall execute and/or deliver to Owner or into
The 87th Street Maintenance Agreement.
(ii) A certified copy of the Vacation Resolution for recording in the
Public records of Miami-Dade County, which shall be held in escrow pursuant to
(i)
10
285861/9/TAMPA
636
the Escrow Agreement, the form of which is attached hereto as Exhibit H (the
"Escrow Agreement").
(iii)The Escrow Agreement.
(b) At the Closing, the Owner shall execute and/or deliver (as appropriate)to
the City or into escrow the following items:
(i) The 87th Street Maintenance Agreement.
(ii) The 87th Terrace Easement, which shall be held in escrow
pursuant to the Escrow Agreement.
(iii) Any subordination agreement that may be required pursuant to
Subsection 6(b[iiiXC) of this Agreement, which shall be held in escrow pursuant
to the Escrow Agreement.
(iv) The Escrow Agreement.
L4.,,@.owneragreeStoacceptthe87thTerracePropertyin,,aS.is,,
physical condition without any representation or warranty by the City regarding physical
condition. The City agrees to accept the 87th Terrace Easement with the underlying land and
improvements (if any) in "as-is" condition, subject to Owner's subsequent compliance with the
terms of Section 9 of this Agreement.
15. Compliance with Local Resulations Regarding Development Permits. This
Agreement is not and shall not be construed as a Development Permit, approval or
authorization to commence any development, fill, or other land modification. The Owner and
the City agree that the failure of this Agreement to address a particular permit, approval,
procedure, condition, fee, term or restriction in effect on the Execution Date of this Agreement
shall not relieve Owner of the necessity of complying with the regulation governing said
permitting requirements, conditions, fees, terms or restrictions, subject to the terms of Section
12 of this Agreement.
16. Reservation of Riehts. This Agreement shall not affect any rights that may have
accrued to any party to this Agreement under applicable laws and each party hereto reserves
any and all of such rights.
77. Consistencv with the Citv's Comprehensive Plan. The City has adopted and
implemented the Comprehensive Plan. The City hereby finds and declares that the provisions of
this Agreement dealing with the Property and the Project are consistent with the City's
Comprehensive Plan and Land Development Regulations (subject to all applicable
requirements, permits and approvals).
285861/9/TAMPA
L7
637
L8. Concurrencv. Owner shall be solely responsible for obtaining all land use
permits, including, but not limited to, all permits and approvals required pursuant to Section
163.3180, Florida Statutes (2OL4l, with respect to concurrency requirements for roads, sanitary
sewer, solid waste, drainage, potable water, parks and recreation, and schools (the
"Concurrency Requirements"). Prior to applying for its building permit for the Project, Owner
shall apply to the appropriate Governmental Authorities and obtain letters or other evidence
that Owner has obtained all applicable Concurrency Requirements, and shall diligently and in
good faith obtain such letters or other evidence that the Project meets all applicable
Concurrency Requirements and shall pay such impact fees as may then be due or applicable to
meet Concurrency Requirements.
L9,Effective Date and Duration (Term).
(a) Within fourteen (14) days following approval at two public hearings and
execution by all parties, the City shall record the Agreement in the Public Records of Miami-
Dade County. The Owner shall submit a copy of the recorded Agreement to the State of
Florida's land planning agency within fourteen (1a) days after this Agreement is recorded. This
Agreement shall become effective only after (i) it has been recorded in the Public Records of
Miami-Dade County, Florida, and (ii) thirty (30) days have elapsed after the State of Florida land
planning agency's receipt of a copy of the recorded Agreement. The Owner 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.
(b) This Agreement shall run for an initial term of six (6) years from the
Effective Date (the "fetm"l, and may be extended by mutual consent of the City and the Owner
subject to a public hearing pursuant to Section 763.3225, Florida Statutes. Consent to any
extension of this Agreement is within the sole discretion of each party to this Agreement. No
notice of termination shall be required by either party upon the expiration of this Agreement,
and thereafter the parties hereto shall have no further obligations under this Agreement except
that in no event shall the Owner's obligation to pay the Voluntary Contribution be extinguished
by the expiration of the term if it has not otherwise been paid.
20. Presentlv Permitted Development. The development that is presently permitted
on the Property, including population densities, and building intensities and height, which are
subject to this Agreement, are more specifically set forth in Exhibit D hereto.
2L. Public Facilities to Serve the Propertv. A description of the public facilities that
will service the Project of the properties subject to this Agreement, including who shall provide
such facilities; the date any new facilities, if needed, will be constructed; and a schedule to
assure public facilities are available concurrent with the impacts of the development is included
as Exhibit E hereto.
285861/9/TAMPA
L2
638
22. Public Reservations and/or Dedications. A description of the reservations and/or
dedications of land for public purposes that are proposed under the terms of this Agreement is
included as Exhibit F hereto.
23. Required Development Permits. Attached and made a part hereof as Exhibit G is
a listing and description of all local development permits approved or needed to be approved
for the development of the Project.
24. Default. Each of the following shall be an "Event of Default" by Owner
hereunder:
(a) lf Owner shall fail to observe or perform any term, covenant or condition
of this Agreement on Owner's part to be observed or performed and Owner shall fail to cure or
remedy the same within ten (10) days of Owner's receipt of written notice from the City, with
respect to monetary defaults, or within thirty (30) days of Owner's receipt of written notice
from the City with respect to non-monetary defaults (each, a "Default Notice"). lf such non-
monetary default is susceptible to cure but cannot reasonably be cured within said thirty (30)
day period, then Owner shall have any additional sixty (60) day period to cure such failure and
no Event of Default shall be deemed to exist hereunder so long as Owner commences such cure
within the initial thirty (30) day period and diligently and in good faith pursues such cure to
completion within such resulting ninety (90)day period from the date of the Default Notice.
(b) lf, after the Effective Date, Owner shall fail to obtain all Development
Orders and Development Permits which are necessary for the Project, the 87th Street
lmprovements and the 87th Terrace Easement lmprovements by November Lg,2OL8.
(c) lf, after the Effective Date, Owner shall fail to obtain a full building permit
for the Project by November 19, 20t6.
(d) lf, during the construction phase of the Project, the 87th Street
lmprovements and/or the 87th Terrace Easement lmprovements, Owner shall stop work on any
of the aforestated for a period in excess of ninety (90) days.
(e) lf, after the Effective Date, Owner has not obtained a final CO for the
Project by November 19, 20L8.
(f) lf Owner shall make an assignment for the benefit of creditors, or shall
admit in writing its inability to pay its debts generally as they become due, or shall consent to
the appointment of a receiver or trustee or liquidator of all of its property or the major part
thereof or if all or a substantial part of the assets of Owner are attached, seized, subjected to a
writ or distress warrant, or are levied upon, or come into the possession of any receiver,
trustee, custodian or assignee for the benefit of creditors.
(g) lf Owner shall commence a voluntary case under the Title 11 of the
United States Code (the "Bankruptcy Code") ; or an involuntary proceeding is commenced
285861/9/TAMPA
13
639
against Owner under the Bankruptcy Code and relief is ordered against Owner, or the petition
is controverted but not dismissed or stayed within one hundred fifty (150) days after the
commencement of the case, or a custodian (as defined in the Bankruptcy Code) is appointed for
or takes charge of all or substantially all of the property of Owner and is not discharged or
dismissed within one hundred fifty (150) days; or Owner commences any other proceedings
under any reorganization, arrangement, readjustment of debt, relief of debtors, dissolution,
insolvency or liquidation or similar Law of any jurisdiction whether now or hereafter in effect
relating to Owner; or there is commenced against Owner any such proceeding which remains
undismissed or unstayed for a period of one hundred fifty (150) days; or Owner fails to
controvert in a timely manner any such case under the Bankruptcy Code or any such
proceeding, or any order of relief or other order approving any such case or proceeding is
entered; or Owner consents to or approves of, in any such case or proceeding or the
appointment of any custodian or the like of or for it for any substantial part of its property or
suffers any such appointment to continue undischarged or unstayed for a period of one
hundred fifty (150) days.
ln the event the City shall claim any Event of Default shall have occurred hereunder, the
City's Default Notice shall state with specificity the provisions of this Agreement under which
the Default is claimed, the nature and character of such Default, the date by which such Default
must be cured pursuant to this Agreement, if applicable, and, if elected by the City, that the
failure of Owner to cure such Default by the date set forth in such notice will result in the City
having the right to terminate this Agreement.
25. Enforcement of Performance; Damages and Termination. lf an Event of Default
occurs hereunder, the City may elect any one or more of the following remedies:
(a) Enforce strict performance by Owner;
(b)Terminate this Agreement; or
(c) Pursue any other remedy available to the City at law or in equity.
The City's election of a remedy hereunder with respect to any one or more Events of
Default shall not limit or otherwise affect the City's right to elect any of the remedies available
to it hereunder with respect to any other Event of Default.
ln the event the City elects to terminate this Agreement after an Event of Default and
such termination is stayed by order of any court having jurisdiction of any matter relating to
this Agreement, or by any federal or state statute, then following the expiration of any such
stay, the City shall have the right, at its election, to terminate this Agreement with five (5) days'
written notice to Owner, Owner as debtor in possession or if a trustee has been appointed, to
such trustee.
26. Strict Performance; Waiver. No failure by the City or Owner to insist upon strict
performance of any covenant, agreement, term or condition of this Agreement or to exercise
t4
285861/9/TAMPA
640
any right or remedy available to such party by reason of the other party's default or an Event of
Default hereunder shall constitute a waiver of any such default, Event of Default or of such
other covenant, agreement, term or condition hereunder.
27. Notices. Any notices required or permitted to be given under this
Agreement shall be in writing and shall be deemed to have been given if delivered by hand,
sent by recognized overnight courier (such as Federal Express) or mailed by certified or
registered mail, return receipt requested, in a postage prepaid envelope, and addressed as
follows:
lf to the City at: City of Miami Beach, City Hall
1700 Convention Center Drive
Miami Beach, Florida 33139
Attn: City Manager
With a copy to: City of Miami Beach, City Hall
1700 Convention Center Drive
Miami Beach, Florida 33L39
Attn: City Attorney
With copies to: Squire Patton Boggs (US) LLP
One Tampa City Center
201 N. Franklin Street, Suite 2100
Tampa, Florida 33602
Attn: Stacy H. Krumin
lf to Owner at: 8701 Collins Development, LLC
cf oTerra Group
2675 S. Bayshore Drive
Miami, FL 33133
Attn: David Martin
With a copy to: Jeffrey Bercow, Esq.
Bercow Radell & Fernandez,P.A.
200 S. Biscayne Blvd.
Suite 850
Miami, Florida 33131
Notices personally delivered or sent by overnight courier shall be deemed given on
the date of delivery and notices mailed in accordance with the foregoing shall be deemed
given three (3) days after deposit in the U.S. mails. The terms of this Section 27 shall survive
the termination of this Agreement.
285861/9/TAMPA
15
641
28. Governine Laws. Construction and Litigation. This Agreement shall be governed
and construed in accordance with the laws of the State of Florida, both substantive and
remedial, without regard to principles of conflict of laws. The Owner and the City agree that
Miami-Dade County, Florida is the appropriate and exclusive state court venue, and that the
U.S. District Court, Southern Division of Florida is the appropriate and exclusive federal court
venue, in connection with any litigation between the parties with respect to this Agreement. All
of the parties to this Agreement have participated fully in the negotiation and preparation
hereof; and accordingly, this Agreement shall not be more strictly construed against any of the
parties hereto. ln construing this Agreement, captions, and section and paragraph headings
shall be disregarded and the use of any gender shall include every other and all genders. All of
the exhibits referenced in this Agreement are incorporated in, and made a part of, this
Agreement. ln the event of any litigation between the parties under this Agreement for a
breach thereof, the prevailing party shall be entitled to reasonable attorney's fees and court
costs at all trial and appellate levels. BY ENTERING INTO THIS AGREEMENT THE CITY AND
OWNER EXPRESSLY WAIVE ANY RIGHTS EITHER MAY HAVE TO A TRIAL BY JURY WITH RESPECT
TO ANY CIVIL LITIGATION RELATED TO, OR ARISING OUT OF, THIS AGREEMENT. The terms of
this Section 28 shall survive the termination of this Agreement.
29. Severabilitv. ln the event any term or provision of this Agreement be
determined by appropriate judicial authority to be illegal or otherwise invalid, such provision
shall be given its nearest legal meaning or construed as deleted as such authority determines,
and the remainder of this Agreement shall be construed to be in full force and effect.
Time of Essence. Time shall be of the essence for each and every provision
hereof.
31. Entire Aqreement. This Agreement, together with the documents referenced
herein, constitutes the entire agreement and understanding among the parties with respect to
the subject matter hereof, and there are no other agreements, representations or warranties
other than as set forth herein. Neither party shall be bound by any agreement, condition,
warranty nor representation other than as expressly stated in this Agreement. This Agreement
may not be changed, altered or modified except by an instrument in writing signed by both
parties hereto, subject to the requirements for the amendment of development agreements in
the Act.
32. Other Agreements. This Agreement has no effect on any other agreement, the
City's development orders, or declaration of restrictions otherwise encumbering the Property.
Any and all agreements currently in the public records remain valid. The parties incorporate by
reference each and every requirement set forth in the Act.
33. Bindine Effect. The obligations imposed pursuant to this Agreement upon the
Owner and upon the Property shall run with and bind the Property as covenants running with
the Property, and this Agreement shall be binding upon and enforceable by and against the
parties hereto, their personal representatives, heirs, successors, grantees and assigns.
30.
285861/9/TAMPA
16
642
34. Transfer and Assignment. The Owner shall not be entitled to assign or transfer
its rights under this Agreement without the prior written consent of the City, in the City's sole
and absolute discretion, except that the City will recognize a lender who has acquired the
Property through a foreclosure sale or deed-in-lieu of foreclosure. Any such transferee
(including through foreclosure or deed-in-lieu thereof) shall assume all remaining obligations of
the Owner under this Agreement including, without Iimitation:
(a) The Owner's obligation to pay the Voluntary Contribution to the City;
(b) The Owner's obligation to grant and improve the 87th Terrace Easement
area; and
(c) The Owner's obligation to improve the 87th Street right-of-way; provided,
however, at its sole discretion, the City may elect not to proceed with the Maintenance
Agreement for the 87th Street right-of-way if performance under the Maintenance Agreement
has not yet commenced; however, if performance under the Maintenance Agreement has
commenced then the City may only terminate the Maintenance Agreement in accordance with
its terms.
Notwithstanding the foregoing, the Owner shall be permitted to assign this Agreement
without the consent of the City after the earlier to occur of (i) issuance of the final CO for the
Project; or (ii) payment of the full S10,500,000 Voluntary Contribution to the City.
35. Force Maieure and Third Partv Challenges. Except as to the Owner's obligation
to make the Voluntary Contribution payments in accordance with Section 6, above, time
periods will be tolled due to force majeure (strikes, lockouts, acts of God, and other causes
beyond the control of either party), and delays in obtaining permits from other governmental
agencies. Notwithstanding the preceding, in the event that a third party (unrelated or
unaffiliated with the City or the Owner) institutes a legal proceeding in a court of competent
jurisdiction (the "Law Suit") challenging the validity of the Vacation Resolution or this
Agreement then, if the Law Suit remains pending for more than eighteen (L8) months after
filing, the City may request that the Owner pay the remainder of the Voluntary Contribution
then due, with sixty (60) days' notice to Owner. ln such event, Owner shall pay the remainder
of the Voluntary Contribution, and the actual vacation of the 87th Terrace Property shall
become effective. Additionally, the Owner shall defend, any Law Suit at its sole cost and using
legal counsel reasonably acceptable to the City. Owner shall further indemnify and hold the
City harmless from and against all claims, injury, damage, loss and liability, cost and expense
(including attorneys' fees, costs and expenses) of any and every kind arising out of or relating to
any Law Suit. This Section 35 shall survive the termination or expiration of this Agreement.
35. lndemnification of Citv. ln addition to Owner's obligations set forth in Section 35
(including Owner's obligation to indemnify the City pursuant to that Section), Owner shall
defend, indemnify and hold harmless the City, its agents, servants and employees, from and
against any loss, cost, expense, claim, demand or cause of action of whatever kind or nature
285861/9/TAMPA
L7
643
arising out of or related to the conduct, act or omission of Owner and/or its officers, directors,
officials, employees, contractors and agents, related to (i) this Agreement, and/or (ii) the
Project. The Owner shall directly pay all costs and expenses related to any expense or cost
charged, or legal defense required by the City, using legal counsel reasonably acceptable to the
City, pursuant to the foregoing. The City shall reasonably cooperate and collaborate (but at no
expense to the City) with the Owner in connection with any legal proceeding in which the
Owner is defending the City. This Section 36 shall survive termination or expiration of this
Agreement.
37. Corporate Obligations. lt is expressly understood that this Agreement and the
obligations issued hereunder are solely corporate obligations, and that no personal liability will
attach to, or is or shall be incurred by, the incorporators, stockholders, officers, directors,
elected or appointed officials (including, without limitation, the Mayor and City Commissioner
of the City) or employees, as such of Owner, any of any successor corporation or any of them,
under or by reason of the obligations, covenants or agreements contained in this Agreement or
implied therefrom; and that any and all such personal liability, either at common law or in
equity or by constitution or statute, of, and any of all such rights and claims against, every such
incorporator, stockholder, officer, director, elected or appointed official (including, without
limitation, the Mayor and City Commissioner of the City) or employee, as such, or under or by
reason of the obligations, covenants or agreements contained in this Agreement or implied
therefrom are expressly waived and released as a condition of, and as consideration for, the
execution of this Agreement.
38. No Conflict of lnterest. Owner represents and warrants that no member, official
or employee of the City has any direct or indirect financial interest in this Development
Agreement nor has participated in any decision relating to this Development Agreement that is
prohibited by law. Owner represents and warrants that no officer, agent, employee, or
representative of the City has received any payment or other consideration for the making of
this Agreement, directly or indirectly, from Owner.
Police Power.
(a) The parties hereto recognize and agree that certain provisions of this
Agreement require the City and its boards, departments or agencies, acting in their
governmental capacity, to consider governmental actions, as set forth in this Agreement. All
such considerations and actions shall be undertaken in accordance with established
requirements of state statutes and municipal ordinances, in the exercise of the City's
jurisdiction under the police power. Nothing contained in this Agreement shall entitle the
Owner to compel the City to take any such actions, save and except the consents, if applicable,
to the filing of such applications for Development Permits or Development Orders, as more fully
set forth herein, and to timely process such applications.
(b) The parties further recognize and agree that these proceedings shall be
conducted openly, fully, freely and fairly in full accordance with law and with both procedural
39.
285861/9/TAMPA
18
644
and substantive due process to be accorded the applicant and any member of the public.
Nothing in this Agreement shall be construed to prohibit the City from duly acting under its
police power to approve, approve with conditions, or reject any public hearing application
dealing with the Property.
40. Conflict. ln the event of an inconsistency or conflict between the terms of this
Agreement and the Vacation Resolution, the terms of this Agreement shall control.
285861/9/TAMPA
19
645
EXECUTED as of the date first above written in several counterparts, each of which
shall be deemed an original, but all constituting only one agreement.
Signed, sealed and delivered
in the presence of:
CITY OF MIAMI BEACH,
a Florida municipal corporation
Print Name:
By:
Print Name:
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
Name:
Attest:
City Clerk
corporation, on behalf of the Corporation.
as identification
)
)SS
)
The foregoing instrument was acknowledged before me this
20L4, by
_day of
as Mayor of the
He is personally
and who did (did
City of Miami Beach,
known to me or has
not) take an oath.
a municipal
produced
NOTARY PUBLIC
Typed or Printed Name of Notary
My Commission expires:
Serial No., if any:
,6[R[8YiR,8ilB,
& FOR EXECUTION
^"LL!"-L-, W]'&
28s861/9/TAMPA
20 Doie
646
STO1 COLLINS DEVELOPMENT LLC, A
Delaware limited liability company
David Martin, Managing Member
Print Name:
Print Name:
STATE OF FLORTDA )
) SS:
couNw oF M|AM|-DADE )
The foregoing instrument was acknowledged before me this _ day of ,
2OL4 by David Martin, as managing member of 8701 Collins Development, LLC, a Delaware
limited liability company, on behalf of the company. He is personally known to me or has
produced
an oath.
as identification and who did/did not take
NOTARY PUBLIC
Typed or printed Name of Notary
My Commission expires:
Serial No., if any
By:
28586't/9/TAMPA
2L
647
EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
The lond ref erred to herein below is sltuoted in the County of Miorni-Dode, Stote of Florldo, ond
is described os follows:
All of Block 1; oll of Block 1O; ond thot portion of whot wos known os Airoso Woy lying ond
including between the West llne of soid Block 1 , ond the Eost line of sold Block 1 O; oll of
ALTOS DEL MAR NO. 2, occording to the Plot thereof, recorded ln Plot Book 4, Poge 1 62, of the
Fubllc Records of Miomi-Dode County, Florido; tcgether with oll right, title o nd interest in thot
lond )ying between the Eosterly boundory of Block 1, of ALTOS DEL MAR No. 2, occording to the
Flot thereof, os recorded in Plot Book 4, Poge 162, of the Public Records of Miomi-Dode
County, Floridq, qnd the Erosion Control Line, according to the Plot thereof, recarded ln Flqt
Book 1O5, Poge 62, of the Publlc Records of Miomi-Dode County, Florido.
285861/9/TAMPA
22
648
EXHIBIT B
18zth stneer MAt NTENANcE AGREEMENTI
285861/9/TAMPA
23
649
EXHIBIT C
182'h trRRAcE EAsEMENTI
285861/9/TAMPA
24
650
EXHIBIT D
PRESENTLY PERMITTED DEVELOPMENT
(a) Permitted Development and Uses. The Property, including 87th Terrace,
is designated as RM-2 Residential multifamily, medium intensity according to the City's adopted
Comprehensive Plan. The Property, including 87th Terrace, as well as the North % of 87ih Street,
are zoned RM-2 Residential multifamily, medium intensity by the City's Land Development
Regulations. The RM-2 zoning district permits single-family detached dwellings; townhomes;
apartments; apartment-hotels; and hotels. The Property may be used for the purposes
permitted and regulated in these land use designations and zoning districts, as further limited
by the by the City's Land Development Regulations and Comprehensive Plan.
(b) Densitv, Buildins Heiehts. Setbacks and lntensities. The maximum
density, heights, setbacks and intensities for any development on the Property shall be
regulated by the City's Land Development Regulations, Comprehensive Plan and any applicable
Federal, State or County laws and regulations. ln the RM-2 land use designation, the maximum
residential density is 100 dwelling units per acre. The intensity of hotel use is limited by such
set back, height, floor area ratio, minimum room size and other provisions of the Land
Development Regulations.
THIS EXHIBIT DESCRIBES THE PRESENTLY PERMITTED DEVELOPMENT FOR PURPOSES OF THE
ACT ONLY. THE PROJECT SHALL CONFORM TO THE DESCRIPTION PROVIDED IN SECTION 3.10
O F THIS AGREEMENT.
285861/9/TAMPA
25
651
EXHIBIT E
PUBLIC FACILITIES
The proposed development will be serviced by those roadway transportation facilities
currently in existence as provided by state, county, and local roadways. The proposed
development will also be serviced by public transportation facilities currently in existence, as
provided by Miami-Dade County, the City of Miami Beach, and such other governmental
entities as may presently operate public transportation services within the City of Miami
Beach. Sanitary sewer, solid waste, drainage, and potable water services for the proposed
development shall be those services currently in existence and owned or operated by Miami-
Dade County, the Miami-Dade County Water and Sewer Department, and the City of Miami
Beach. The proposed development shall be serviced by those existing educational facilities
owned or operated by the Miami-Dade Public Schools District. The proposed development
shall be serviced by those existing parks and recreational facilities owned or operated by the
United States Government within Miami- Dade County, by the State of Florida, by Miami-Dade
County, and by the City of Miami Beach. The proposed development shall be serviced by
those existing health systems and facilities operated by the United States Government within
Miami-Dade County, by the State of Florida, by Miami-Dade County, and by the City of Miami
Beach.
The proposed development will also be serviced by any and all public facilities, as such
are defined in Section L63.3227(L2) of the Act, that are described in the Comprehensive Plan,
specifically including but not limited to those facilities described in the lnfrastructure Element
and the Capital lmprovements Element therein, a copy of which is available for public
inspection in the offices of the City Clerk of the City of Miami Beach.
285861/9/TAMPA
26
652
EXHIBIT F
pu BLr c RESERVATTONS/D E D !CATIO NS
L. The vacation of 87th Terrace as described in Section 6 of this Agreement. When
the vacation of the 87th Terrace Property becomes effective in accordance with the terms of
Resolution No. 2014-28754, and as set forth in subsection 6 (b) (iii) of the Agreement, then the
87th Terrace Property shall be included within the Property, with the area of the Property and
the 87th Terrace Property to be measured for purposes of floor area ratio calculations.
2. The 87th Terrace Easement.
27
285861/9/TAMPA
653
EXHIBIT G
REQU!RED DEVELOPMENT PERMITS AND VARIANCES
The following constitutes a generalized list of local permits anticipated as necessary to
be approved by the terms of this Agreement:
L. Design Review Board, Planning Board, and/or Board of adjustment approvals,
pursuant to Chapter 118 of the City of Miami Beach Code.
2. Utility Permits
3. Demolition Permits
4. Building Permits
5. Street vacations and related permits
6. Environmental Permits
7. Variances, pursuant to Chapter 1.L8 of the City of Miami Beach Code
8. Hazardous Materials Removal Permit, if removal of hazardous materials is found
necessary.
9. Coastal Construction Control Line Permit
10. Public Works Permit, Paving and Drainage
77. Public Works Permit, Water and Sewer
L2. Certificates of Use and/or Occupancy
13. All other local governmental approvals as may be applicable to the subject
property from time to time pursuant to the terms of this Development
Agreement.
285861/9/TAMPA
28
654
EXHIBIT H
lEscRow AGREEMENTI
285861/9/TAMPA
29
655
ESCROW AGREEMENT
This Escrow Agreement ("Agreement") is entered into the day of
-,
2014 (the "Effective Date") by and between the CITY OF MIAMI BEACH, a Florida municipal
corporation (the "City'') and 8701 COLLINS DEVELOPMENT LLC, a Florida limited liability
company ("8701").
RECITALS
WHEREAS, pursuant to City Resolution No. 2014-28754 (the "Vacation Resolution"),
the City approved the vacation of 87th Terrace, subject to and conditioned upon certain things as
set forth therein; and
WHEREAS, in connection with the Vacation Resolution the City and 8701 entered into
a Development Agreement pertaining to the redevelopment of the hotel and property located at
8701 Collins Avenue, Miami Beach, Florida (the "Development Agreement"), located adjacent
to 87th Terrace; and
WHEREAS, the Development Agreement contemplates that 8701 shall deliver into
escrow a perpetual easement agreement over a portion of 87th Terrace (the "Easement
Agreement"), which Easement Agreement is to be held in escrow pending the satisfaction of
certain things set forth in the Development Agreement and as described herein; and
NOW, TIIEREFORE, in consideration of the mutual promises of the parties, together
with other good and valuable consideration, the receipt and sufficiency of which the parties
acknowledge, the parties agree as follows:
1. Purpose of Agreement. The purpose of this Agreement is to appoint an escrow
agent and specify the conditions under which the escrow agent will be instructed to release the
Easement Agreement and Vacation Resolution.
2. Appointment of Escrow Agent. The parties appoint Squire Patton Boggs (US)
LLPr 201 North Franklin Street, Suite 2100, Tampa, Florida 33602, as escrow agent under this
Agreement ("Escrow Agent").
3. Deposit of Easement Agreement. 8701 shall deposit the original, signed,
Easement Agreement, with the Escrow Agent contemporaneously with the execution of this
Agreement. If a subordination agreement is required by the Development Agreement, then such
subordination agreement shall also be delivered to Escrow Agent together with the Easement
Agreement and the term Easement Agreement as used herein shall be deemed to include such
subordination agreement.
4. Deposit of Vacation Resolution. The City shall deposit a certified copy of the
Vacation Resolution with the Escrow Agent contemporaneously with the execution of this
Agreement.
5. Documentation to be Deposited with Escrow Agent. Upon the execution of
this Agreement, the parties will deliver this Agreement, fully executed, to the Escrow Agent.
291 609/1/TAMPA
656
The Escrow Agent will hold the Easement Agreement, the certified copy of the Vacation
Resolution and this Agreement in its files until the terms and conditions of this Agreement are
satisfied. The Escrow Agent's sole obligation under this Agreement shall be to hold the
Easement Agreement and Vacation Resolution in safekeeping and record, or provide to the City
for recording, in the public records or return the Easement Agreement and Vacation Resolution
in the manner provided in this Agreement
6. Escrow Agent's Recording or Delivery of Easement Agreement. Upon such
time as the following conditions are satisfied, the Escrow Agent shall be permitted to either
record the Easement Agreement and Vacation Resolution in the public records of Miami-Dade
County or provide the Easement Agreement to the City and Vacation Resolution to 8701, for
recording. Said conditions are as follows:
a. Written confirmation from the City that it has received $5,500,000 of the
Voluntary Contribution (as such term is defined in the Development Agreement) then due
from 8701; and
b. Written confirmation from the City that there is no pending or uncured
Event of Default under the Development Agreement by 8701.
7. Escrow Agent's Return of Easement Agreement and Vacation Resolution. In
the event that the Development Agreement is terminated or expires prior to release of the
Easement Agreement and Vacation Resolution from escrow, then Escrow Agent shall reasonably
promptly return the Easement Agreement to 8701 and the Vacation Resolution to the City, or at
the joint direction of the City and 8701, the Escrow Agent may destroy such documents, and
upon such return or destruction this Agreement shall automatically terminate.
8. Escrow Agent Indemnification. Escrow Agent shall incur no liability
whatsoever to either party in connection with its good faith performance under this Agreement.
The parties jointly and severally release and waive any claims they may have against Escrow
Agent which may result from its performance in good faith of its functions under this
Agreement. Escrow Agent shall be liable only for loss or damage caused directly by its acts of
intentional misconduct while performing as Escrow Agent under this Agreement. The parties
acknowledge that the Escrow Agent assumes no responsibility whatsoever for delays in
delivering or retuming the documents as specified in paragraphs 6 and 7 of this Agreement due
to delays beyond the reasonable control of the Escrow Agent. If Escrow Agent is in doubt as to
its duties or liabilities under the provisions of this Agreement, Escrow Agent may interplead the
Easement Agreement and Vacation Resolution into the Circuit Court, whereupon after notifying
all parties concemed with such action, all liability on the part of Escrow Agent shall terminate.
The City (to the extent allowed by law) and 8701 agree to indemnify and hold Escrow Agent
harmless from any costs or expenses, including, without limitation, reasonable attorney's fees,
which may be occasioned by or arise out of claims resulting from its performance as Escrow
Agent except for a default committed in bad faith.
9, Further Assurances. The parties agree to do, execute, acknowledge and deliver,
or cause to be done, executed, acknowledged and delivered all such further acts, assignments,
291 609/1 /TAMPA
-Page2of6-
657
documents, instruments, transfers and assurances as shall reasonably be requested of them in
order to carry out and give effect to this Agreement.
10. Notices. All notices, demands and other communications under this Agreement
shall be in writing, and delivered by overnight, prepaid delivery service via overnight carrier. In
the alternative, notices may be delivered by telecopier, with confirmation of the original sent by
U.S. mail. Notices shall be deemed to have been delivered on the date the party to be notified
receives the notice if sent via overnight delivery services, and on the date of the facsimile if
delivered via telecopier, with confirmation sent by U.S. mail. All notices shall be addressed to
the parties at the following addresses, which may be changed only by written notice given to the
other party:
If to the City at:City of Miami Beach, City Hall
1700 Convention Center Drive
Miami Beach, Florida 33139
Attn: City Manager
City of Miami Beach, City Hall
1700 Convention Center Drive
Miami Beach, Florida 33139
Attn: City Attomey
Squire Patton Boggs (US) LLP
201 N. Franklin Street, Suite 2100
Tampa, Florida 33602
Attn: Stacy H. Krumin, Esq.
8701 Collins Development, LLC
c/o Terra Group
2675 S. Bayshore Drive
Miami, FL 33133
Attn: David Martin
Jeffrey Bercow, Esq.
Bercow Radell & Fernandez,P.A.
200 S. Bisca5me Blvd.
Suite 850
Miami, Florida 33131
Squire Patton Boggs (US) LLP
201 N. Franklin Street, Suite 2100
Tampa, Florida 33602
Attention: Stacy H. Krumin, Esq.
Telephone: (813) 202-1300
Facsimile: (813) 202-1313
With a copy to:
With copies to:
If to Owner at:
With a copy to:
Escrow Agent:
291609/1/TAMPA
- Page 3 of6 -
658
11.General Provisions.
a. Applicable Law: Jurisdiction. This Agreement will be governed by and
construed under Florida law. The parties submit to the jurisdiction of any court having
competent jurisdiction in Miami-Dade County, Florida, in the event of a dispute under
this Agreement.
b. Authoritlr Representation. The parties represent and warrant that the
individuals who have signed this Agreement on their behalf have full power and authority
to sign for and bind the respective parties to this Agreement.
c. Relationship Intent of the Parties. This Agreement is a contract for the
mutual provision of an escrow agent and related services. This Agreement does not make
either party the agent or legal representative of the other for any purpose whatsoever and
does not grant either party any authority to assume or to create any obligation on behalf
of or in the name of the other. Neither party owes the other any fiduciary obligation.
Moreover, the parties do not intend to establish a partnership under federal, state, or local
laws, either directly or indirectly, under this Agreement. Nothing in this Agreement is
intended to create or shall create a partnership, joint venture, syndicate or other similar
relationship among the parties hereto.
d. Interpretive Provisions. This Agreement, including any exhibits,
schedules, and appendices, contains the complete agreement of the parties, and
supersedes any and all prior understandings, promises, representations and agreements,
oral or written, with respect to the subject matter contained herein. The headings
contained herein are for convenience only and shall not be considered in construing or
interpreting any provision hereof. Words in the singular shall include the plural, and
vice-versa, and words in the masculine shall include the feminine or neuter or both, and
vice-versa, where the context so requires for a reasonable interpretation of this
Agreement. If any provision is declared void or unenforceable by any court or other
authority, all other provisions hereof shall remain in full force and effect. Delay, failure,
or partial exercise by a party of any right or remedy under this Agreement will not
constitute a waiver of any right or remedy. This Agreement shall not be interpreted or
construed in favor of or against either party and neither party shall be deemed to be the
draftsman. This Agreement shall inure to and be binding upon any subsidiary, affiliate,
successor, or permitted assign of or to the business of such party; provided however, that
this Agreement shall not be transferable or assignable by that party without the prior
written consent of the other party. In the event of a conflict of terms between this
Agreement and the Purchase Agreement, the terms of this Agreement shall prevail.
e. Time of Performance. Time is of the essence in the performance of this
Agreement.
f. Counterparts: Copies. This Agreement may be executed by the parties in
several counterparts which when taken together shall be deemed to be one original,
and/or may be executed in multiple copies, each of which shall be deemed an original.
All true and accurate copies of this fully executed Agreement shall be valid and binding
291 609/1 /TAMPA
- Page 4 of6 -
659
evidence of the Agreement of the parties, whether the document and/or any or all of the
signatures are reproductions of an original by photocopy, email or facsimile transmission,
or other method commonly accepted as accurate.
[remainder of this page intentionally left blankJ
291 609/1 /TAMPA
- Page 5 of6 -
660
IN WITNESS WHEREOF, the parties have executed this Agreement effective as of the
date first written above.
CITY OF MIAMI BEACH,
a Florida municipal corporation
By:
Name:
Attest:
City Clerk
8701 COLLINS DEVELOPMENT LLC, A
Delaware limited liability company
By:
David Martin, Managing Member
The above terms and conditions are accepted by the Escrow Agent:
Squire Patton Boggs (US) LLP
Stacy H. Krumin, Principal
Date:
By:
291609/1/TAMPA
- Page 6 of6 -
#i,\'u
661
MAINTENANCE AGREEMENT FOR 87 STREET EAST OF COLLINS AVENUE
THIS MAINTENANCE AGREEMENT FOR 87 STREET EAST OF COLLINS
AVENUE (this "Agreement") is made and entered into as of the day of
2014, by and between the CITY OF MIAMI BEACH, FLORIDA, a municipal corporation of
the State of Florida (the "City"), and 8701 COLLINS DEVELOPMENT, LLC, a Delaware
limited liability company ("Developer").
RECITALS:
A. 87th Street east of Collins Avenue in Miami Beach, Florida is a dedicated City
right-of-way and is more particularly described in the attached Exhibit "A" (the "City
Property").
B. On September _, 2014, the City Commission adopted Resolution No. 2014-
28754, approving, among other things, the vacation of 87th Terrace east of Collins Avenue in
exchange for certain obligations of Developer, including, but not limited to, entering into the
below described Development Agreement.
C. On , the City Commission adopted Resolution No.
2014- XXXXX, approving a Development Agreement between the City and Developer, which
includes, among other things, the requirement that Developer design, develop, construct and
maintain certain improvements to the City Property, in conjunction with the project being
developed by the Developer at 8701 Collins Avenue (the "Developer's Property'').
D. On the City and Developer entered into the
Development Agreement, which is recorded in Official Records Book XXXXX, Page XXXX of
the Public Records of Miami-Dade County, Florida (the " Development Agreement").
E. In accordance with Section XX of the Development Agreement, the City and
Developer desire to enter into this Agreement to set forth the terms and conditions of
Developer's construction and installation of improvements and maintenance 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
suffrciency 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. Installation of Improvements. Subject to necessary City approvals, the Developer
shall design, fund, and install the following improvements within the City Property:
(a) Lighting;
(b) Resurfacing,drainage,hardscaping,paving;
(c) Landscaping and related irrigation;
(d) Outdoor seating and other outdoor fumiture;
(e) Pedestrian sidewalk, including pavers;
(f) Fences and gates to control access (so long as at least a ten (10) foot
'access to the beach always remains open); and
285976/4/TAMPA
662
(g) City-approved street signage; including directional signage, beach access
signage and similar signs (including private signage) (collectively, the "87th Street
Improvements").
The existing geometry of the City Property shall be substantially followed in the
design of the improvements. No change in the location of the sidewalks, curbs and gutters shall
be permitted without the consent of the City. The design of the improvements shall be in
substantial accordance with the plans entitled XXXXX and attached hereto as Exhibit "B."
Developer shall expend at least Seven Hundred Fifty Thousand Dollars
($750,000) for the 87th Street Improvements, which obligation shall be separate and apart from
the Developer's obligation to make the Voluntary Contribution pursuant to the Development
Agreement. All of the foregoing improvements shall be completed on or before the date of
issuance of the certificate of occupancy for the Project, as such term is defined in the
Development Agreement. During construction of the 87th Street Improvements Developer shall
be permitted to restrict access to the City and the public as is reasonably necessary for safety and
in order to efficiently complete the 87th'street Improvements.
3. Maintenance and Restoration. Developer shall, at its cost, perform daily sweeping
of leaves from the City Property as needed and perform pressure cleaning of the City Property as
needed. The maintenance program shall be consistent with the City's Cleanliness Index and
Miami Beach Grounds Maintenance Service standards. Developer shall ensure that the City
Property provides a continuous level walking surface that is compatible with the concrete
sidewalk located along Collins Avenue.
Developer shall bear all costs of restoring the City Property following a necessary
and permitted utility cut for replacement, construction or maintenance work of utilities or a major
natural disaster; provided, however, that any art pieces provided by Developer shall not be
required to be replaced or restored following a natural disaster. Upon notice from the City, the
Developer shall have thirty (30) days to commence undertaking any necessary restoration work.
This time period may be reasonably extended by the City to account for the impact of permitting
delays, unanticipated delays caused by utility providers, andlor Acts of God (including, but not
limited to, fire, flood, earthquake, storm, hurricane or other natural disaster). If the restoration
work is not complete in the timeframe established in this paragraph, the City may, at its sole
option, take action to complete the restoration work. The City's actual costs for the restoration
work shall be reimbursable to the City by Developer.
4. Developer Use of City Property. Developer shall be permitted to utilize the City
Property for the following purposes:
(a) pedestrian and vehicular (subject to obtaining all applicable permits and
approvals) access to and from the Developer's Property;
(b) sidewalk cafe seating;
285976/4/TAMPA
663
(c) City-approved special events, as long as public pedestrian access across
the City Property is not adversely affected; and
(d) Encroachment of balconies on the City Property.
The execution of this Agreement following the necessary City Commission
review shall constitute a grant of all easements necessary for the Developer's approved used of
the City Property.
5. Public Use of Citlz Property. The City shall not allow the use of the City Property,
other than by members of the general public (for public purposes consistent with the public's use
of the City Property as a pedestrian plazaproviding access to and from the Atlantic Ocean beach
and North Shore Open Space Park), without prior written notice to and coordination with
Developer. In addition to use by the general public for public purposes, the aforestated
restriction on the use of the City Property (or any portion thereof) shall also not apply to public
or third party uses in conjunction with the following: (a) any City issued andlor approved film
and print permit or artist vendor andlor street performer peffnit; (b) any City and/or City
sponsored special event; or (c) any exercise of constitutionally protected First Amendment
rights of free speech and/or assembly. The City or third parties who use the City Property for
such public or third party uses shall be responsible for paying for all costs and expenses in
connection with such use of the City Property.
6. Hours of Access. The City Property shall generally be open to the public and/or
guests or invitees of the Developer from sunrise to sunset daily. Access to the City Property during
a City-approved special event shall be govemed by the conditions of the permit.
7. Cooperation. Should any claims, demands, suits or other legal proceedings be
made or instituted by any person against the City or Developer which arise out of the matters
relating to this Agreement, Developer or the City shall provide the other party all pertinent
information and reasonable assistance, in the defense or other disposition thereof.
8. Recordine and Term. This Agreement shall be recorded in the Public Records of
Miami-Dade County, Florida, at the cost of the Developer. The obligations associated with the
installation of improvements in Paragraph 2 shall terminate upon the City's acceptance of the
improvements through the opening of the pedestrian access to the public. The easement,
security, and maintenance obligations in Paragraphs 3, 4, 5, and 6 shall remain in fuIl force and
effect and shall be binding upon the parties, their successors in interest and assigns for an initial
period of ten (10) years from the date this instrument is recorded in the public records, and shall
be automatically extended for successive periods of one (l) year, unless modified, amended,
terminated or released prior to the expiration of such period or if within a one-year renewal
term, the City may terminate this Agreement at any time upon at least thirty (30) days advance
written notice. Provided, however, upon termination of this Agreement the City shall grant the
Developer an easement for any encroachment of balconies as described in Paragraph 4(d) above.
285976/4rfAMPA
664
Default.
(a) If Developer breaches its obligations as specified herein (and same are not
waived in writing by the City), then the City shall give Developer written notice specifying the
nature of the default and Developer shall have thirty (30) days after receipt of such notice within
which to cure the specified default; provided, however, if the nature of such default is such that
the same cannot reasonably be cured within such thirty (30) day period, Developer shall not be
deemed to be in default if Developer shall, within such period, commence such cure and
thereafter diligently prosecute the same to completion; provided further, however, that the
maximum cure period for any default hereunder shall not exceed ninety (90) days from the date
of the initial written notice of default from the City to Developer. If the default is not cured
within the applicable cure period, or if Developer becomes the subject of any bankruptcy or
insolvency proceeding, then the City may, on written notice to Developer, terminate this
Agreement.
(b) If the City breaches its obligations as specified herein (and same are not
waived in writing by Developer), then Developer shall give the City written notice specifying
the nature of the default and the City shall have ten (10) days after receipt of such notice, in the
case of a monetary default, or thirty (30) days after receipt of such notice, in the case of a non-
monetary default, within which to cure the specified default; provided, however, if the nature of
such default is such that the same cannot reasonably be cured within such thirty (30) day period,
the City shall not be deemed to be in default if the City shall, within such period, commence
such cure and thereafter diligently prosecute the same to completion; provided further, however,
that the maximum cure period for any default hereunder shall not exceed ninety (90) days from
the date of the initial written notice of default from Developer to the City. If the default is not
cured within the applicable cure period, then Developer may, on written notice to the City,
terminate this Agreement.
10. Representations and Warranties by the Citl/. The City represents and warrants to
Developer that (a) the City has all necessary 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
violation of any law, rules or regulations or any other agreement to which the City is a party or
is otherwise bound.
1 1. Representations and Warranties by Developer. Developer represents and warrants
to the City that (a) Developer is a limited liability company 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 of Florida 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 all requisite action on the part of Developer and is a valid and legally binding
obligation of Developer enforceable in accordance with the terms, and (c) neither the execution
and delivery of this Agreement by Developer nor the performance of its obligations hereunder
will result in the violation of any provision of its articles of incorporation or any other
organizatronal or governing document as amended to date, or will conflict with (i) any law or
9.
285976/4/TAMPA
665
any order or decree of any court or governmental instrumentality having jurisdiction or (ii) any
other agreement to which Developer is a party or is otherwise bound.
12. Assignment. This Agreement and all rights hereunder, shall not be assignable by
either Developer or the City without prior written consent of the other, except that Developer
shall be permitted to assign this Agreement to an entity controlling, controlled by or under
common control with Developer, a successor in interest to the Developer's Property, or a
homeowners' or condominium association created to maintain common areas on the
Developer's Property.
13. Successors and Assiqns. This Agreement shall inure to the benefit of, and be
binding upon, the parties hereto and their respective successors and assigns.
14. Notice. All notices, demands, requests, consents and approvals which may, or are
required to, be given by any party to any other party thereunder shall be in writing and either (a)
personally delivered, (b) transmitted by fax, (c) sent by United States mail, registered or
certified, postage prepaid, return receipt requested, or (d) sent by a nationally recognized
overnight delivery service, freight prepaid, return receipt requested, and addressed as follows,
and shall be deemed given upon receipt if delivered personally, upon the sending machine
printing a confirmation of transmission, if transmitted by fax, or upon the date of delivery (or
refusal to accept delivery) on a business day (or the next succeeding business day, if not
delivered on a business day), as evidenced by the return receipt ifsent pursuant to subsection (c)
or (d) above, at the address specified below, or to such other addresses as either party may from
time to time designate in writing and delivery in a like manner. Notice given by an attorney for
either party shall be deemed as effective notice given by such party.
The 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
and
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
Squire Patton Boggs (US) LLP
201 North Franklin Street, Suite 2100
Tampa, Florida 33602
285976/4/TAMPA
and
666
Developer:
Attn: Stacy Krumin, Esq.
Fax: (813) 202-1313
8701 Collins Development, LLC
clo Tena Group
2675 S. Bayshore Drive
Miami, FL 33133
Attn: David Martin
With a copy to: Jeffrey Bercow, Esq.
Bercow Radell & Fernandez,P.A.
200 S. Biscayne Blvd.
Suite 850
Miami, Florida 33131
15. Insurance:Bondins.
(a) Citlz Election to Self-Insure. The City has elected to self-insure the City
Property against physical damage and against liability for loss, damage or injury to property or
persons that might occur on the City Property or to the improvements located on the City
Property.
(b) Developer's Insurance. Developer shall obtain and maintain a liability
insurance policy in the covered amount of at least $1,000,000 per incident, $2,000,000 in the
aggregate, to provide compensation for personal injuries or related claims stemming from any
error, omission, negligence, or misconduct on the part of the Developer, or any of its respective
officers, agents, servants, employees, contractors in the installation or maintenance of the
improvements on the City Property.
(c) Developer shall furnish, or shall cause its contractor to furnish, prior to
commencement of any of the work contemplated by this Agreement, a payment and
performance bond of the form and containing all the provisions set forth in this Section.
Payment and performance bonds shall be in the form of dual obligee bonds from the Developer
andlor contractor (if Developer is not self-performing) in the full amount of the cost of the 87th
Street Improvements, naming the City and Developer (if applicable) as dual obliges and shall
guarantee to the City the completion and performance of the 87th Street Improvements as well
as full payment of all suppliers, material persons, laborers, or subcontractors employed therefor.
Such bond(s) shall continue in effect for one year after completion and acceptance of the 87th
Street Improvements. The surety company shall have at least the following minimum ratings in
the latest revision of Best's Insurance Report
Amount of Bond
500,001 to 1,020,000
1,020,001 to 2,000,000
2,000,001 to 5,000,000
Ratings Category
Class I
Class II
Class III
B+
B+
A
285976/4/TAMPA
667
16. Indemnification by Developer. Developer shall indemnify, hold and save the
City, and its officers, agents, contractors, and employees, whole and harmless and, at City's
option, defend same (using legal counsel reasonably acceptable to City), from and against all
claims, demands, actions, damages, loss, cost, liabilities, expenses, and judgments of any nature
recovered from or asserted against City on account of injury or damage to person(s) or property,
to the extent that any such damage or injury may be incident to, arise out of, or be caused, either
proximately or remotely, wholly or in part, by any act, error, omission, negligence, or
misconduct on the part of Developer, or any of their respective officers, agents, servants,
employees, contractors in the installation or maintenance of the improvements or any other use
of the City Property by Developer. Developer shall and will pay all costs and expenses,
including reasonable attorney's fees and court costs, incurred by or imposed upon the City by
virtue of any litigation brought by third parties against the City, including appeals, alleging
injury or damage to person(s) or property due to the installation or maintenance of the
improvements or any other use of the City Property by Developer.
17. Partial Invalidity. In the event that any one or more of the phrases, sentences,
clauses, or paragraphs contained in this Agreement shall be declared invalid by final and
unappealable order, decree, or judgment of any court, this Agreement shall be construed as if
such phrases, sentences, clauses, or paragraphs had not been inserted in this Agreement, it being
intended by the parties that the remaining provisions of this Agreement shall remain in full force
and effect notwithstanding such invalidation.
18. No Joint Venture. It is not intended by this Agreement to, and nothing contained
in this Agreement shall, create any partnership, joint venture, limited liability company or other
anangement between the City and Developer other than that of owner and independent
contractor. No term or provision of this Agreement is intended to be, or shall be, for the benefit
of any person not a party hereto, and no such other person shall have any right or cause of
action thereunder.
19. Goveming Law. This Agreement and the rights of the parties hereto shall be
govemed and construed in accordance with the laws of the State of Florida and all claims related
to this Agreement shall be brought and prosecuted in Miami-Dade County, Florida, which shall
be the exclusive venue for all such matters. Before resorting to litigation, the parties agree to use
commercially reasonable, good faith efforts to resolve disputes without litigation as hereinafter
provided. In 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.
20. Enforcement. In the event of any dispute under this Agreement concerning 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
285976/4/TAMPA
668
enforcing or establishing its rights thereunder, including, without limitation, court costs and
reasonable attorney's fees before and at trial and through all appellate levels.
21. Entire Agreement. This Agreement constitutes the entire agreement between the
City and Developer with respect to the subject matter hereof, and supersedes and replaces all
prior or contemporaneous discussions, negotiations, letters, memoranda or other
communications, 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 Developer.
22. Amendments. No change, amendment or modification of this Agreement shall be
valid or binding upon the parties hereto unless such change, amendment, or modification shall
be in writing and duly executed by all parties hereto.
23. No Waiver. Any waiver by any party of a breach of any provision of this
Agreement shall not operate as, or be construed to be, a waiver of any other breach of such
provision or of any breach of any other provision of this Agreement. The failure of a party to
insist upon strict adherence to any term of this Agreement on one or more occasions shall
neither be considered a waiver nor deprive that party of any right thereafter to insist upon strict
adherence to that term or any other term of this Agreement. Any waiver must be in writing and
signed by the party to be charged therewith.
24. Waiver of Jurv Trial. The parties to this Agreement hereby agree not to elect a
trial by jury of any issue triable of right by jury, and waive any right to trial by jury fully to the
extent that any such right shall now or hereafter exist with regard to this Agreement or any
action or proceeding in which more than one of such parties may be involved. This waiver of
right to trial by jury is given knowingly and voluntarily by the parties hereto, and is intended to
encompass individually each instance and each issue as to which the right to trial by jury would
otherwise accrue. The parties hereto are each hereby authorized to file a copy of this paragraph
in any proceeding as conclusive evidence of this waiver.
25. CorLorate Oblieations. It is expressly understood that this Agreement and the
obligations issued hereunder are solely corporate obligations, and that no personal liability will
attach to, or is or shall be incurred by, the incorporators, stockholders, officers, directors, elected
or appointed officials (including, without limitation, the Mayor and City Commissioner of the
City) or employees, as such of Developer, any of any successor corporation or any of them,
under or by reason of the obligations, covenants or agreements contained in this Agreement or
implied therefrom; and that any and all such personal liability, either at common law or in equity
or by constitution or statute, of, and any of all such rights and claims against, every such
incorporator, stockholder, officer, director, elected or appointed official (including, without
limitation, the Mayor and City Commissioner of the City) or employee, as such, or under or by
reason of the obligations, covenants or agreements contained in this Agreement or implied
therefrom are expressly waived and released as a condition of, and as consideration for, the
execution of this Agreement.
26. Countemarts: Facsimile. This Agreement may be executed in counterparts, each
of which shall be deemed an original and all of which together shall constitute one and the same
instrument. A facsimile signature shall be deemed for all purposes to be an original.
285976/4/TAMPA
669
lN WITNESS WHEREOF, tlie undersigned has caused this Agreernent to be executed
as of the date set forth above.
Witnesses:THE OWNER
8701 COLLINS DEVELOPMENT, LLC
a Florida limited liability comparly
Sign Name:
Print Narne:By:
David Martin, Manager
Sign Name:
Print Name:
STATE OF FLORIDA )
) SS:
cor-rNTY oF MrAMr-DADE )
The foregoing instrument was acknowledged before me this day of _,2014
by David Martin, as manager of 8701 COLLINS DEVELOPMENT, LLC a Florida limited
liability company, on behalf of the company. He is personally known to me or has produced
as identification.
NOTARY PUBLIC
Typed or Printed Name of Notary
My Commission Expires:
Serial No., if any:
285976/4/TAMPA
670
Witr-resses:CITY OF MIAMI BEACH, FLORIDA,
a muricipal corporation
Sign Name:
Mayor
Print Narne:
Sign Name:
Print Narne:
ATTEST:
City Clerk
STATE OF FLORIDA )
) SS:
couNTY oF MrAMr-DADE )
The foregoing instrument was acknowledged before me this day of _,2014
by Philip Levine, as mayor of the City of Miami Beach, Florida, a Florida municipal corporation,
on behalf of the City. He is personally known to me or has produced
identification.
NOTARY PUBLIC
Typed or Printed Name of Notary
My Commission Expires:
Serial No., if any:
APPROVED AS TO
FORM & LANGUAGE
By:
/.--\ & IQR EXECUTIONffi,'M''285976/4/TAMPA
671
Prepared by and Return to:
Jeffrey Bercow, Esq-
Bercow Radell & Fernandez, P.A.
200 S. Biscayne Blvd., Suite 850
Miami, FL 33131
GRANT OF PERPETUAL EASEMENT (87tn tenneCel
THIS GRANT OF PERPETUAL EASEMENT (this "Easement") is made this day of
by 8701 COLLINS DEVELOPMENT, LLC, a Florida limited liability
company (the "Owner") having its principal place of business at 2665 S. Bayshore Drive, Miami,
Florida 33133 in favorof the CITY OF MIAMI BEACH, a Florida municipal corporation (the "City"),
having its principal place of business at 1700 Convention Center Drive, Miami Beach, Florida
33139.
WHEREAS, the Owner owns that certain property situated, lying and being in Miami-
Dade County, Florida, located at 8701 Collins Avenue, Miami Beach, Florida, and as more
particularly described in Exhibit "A" attached hereto (the "Property");
WHEREAS, the City and the Owner entered into that certain Development Agreement
datedaSof--'2ot4,recordedinofficialRecordsBook,atPage
of the Public Records of Miami-Dade County (the "Development Agreement"), which
constitutes a development agreement pursuant to the Florida Local Government
Development Act, Section 163.3220, et. seQ., Florida Statutes (the "Act") and which
contemplates the renovation and/or redevelopment of the Property (the "Project");
WHEREAS, pursuant to the Development Agreement, the Owner has agreed to grant to
the City a ten (L0) foot wide perpetual easement for the purpose of providing public pedestrian
access through and over a portion of the former, recently vacated, road right-of-way for 87th
Terrace lying East of the Eastern right-of-way line of Collins Avenue and which is more
particularly described in Exhibit "8" attached hereto (the "Easement Parcel");
WHEREAS, granting the easement is a condition of the effectiveness of the vacation of
the road right-of-way for 87th Terrace and the issuance of development permits and approvals
in order to develop the Project;
WHEREAS, pursuant to the Development Agreement, the Owner has agreed to construct
certain improvements (the "87th Terrace lmprovements") to be made to 87th Terrace Property
(as defined in the Development Agreement) as depicted in the 87th Street and Terrace Plans (as
defined in the Development Agreement) in and on the Easement Parcel in order to provide
28597514l1AMPA
672
enhanced and upgraded public access to the beach and the Atlantic Ocean and the Owner has
agreed to construct the 87th Terrace lmprovements.
NOW THEREFORE, in consideration of Ten and No/100 Dollars (SfO.OOl and other good
and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the
Owner by these presents hereby grants, and conveys to the City, its successors and assigns, a
perpetual easement on, in, and over the Easement Parcel for the purpose of providing public
pedestrian access through and over the Easement Parcel.
The Owner and the City further agree to the following:
L. The Owner hereby grants to the City its employees, contractors, or
representatives, the permanent right and license for purposes of ingress and egress to and
from the Easement Parcel for the purposes of inspecting, maintaining, repairing, and
replacing the public sidewalks and all related public pedestrian improvements to be
constructed on the Easement Parcel. The Owner hereby also grants the City the right to use
and occupy the subsurface of the Easement Parcel for any utility or drainage or other use or
purpose, including, without limitation, the right to construct, install, maintain and operate
therein electrical, telephone, telegraph, telecommunication, gas, gasoline, sewer, water, and
drainage fixtures and the Owner grants to the City the right to grant easements to third parties
to do the same. The City and third parties to whom the City grants easements over the
Easement Parcel shall bear the cost for repairing any damage that they cause to the Easement
Parcel while acting in such party's official capacity and for the purposes stated in this
paragraph or otherwise working at the direction of the City.
2. Following Owner's completion of the 87th Terrace lmprovements, the Owner
shall have the sole responsibility and shall bear the total cost for the repair and maintenance
of same, except for any repairs and maintenance arising from the gross negligence of the City,
its employees, contractors, representatives, any third parties to whom the City has granted
easements over the Easement Parcel, or any successors, while acting in such party's official
capacity or otherwise working at the direction of the City.
3. The Owner shall provide the same level of maintenance on the Easement Parcel
and the improvements thereon as the City currently provides for its public sidewalks. The
Owner shall include the Easement Parcel as part of any security plan for the Property. Such
security program shall require, at minimum, a roving security guard or video monitoring of the
Easement Parcel. As part of the security program, the Owner shall be responsible for enforcing
the hours of access limitations; the Easement Parcel shall generally be open to the public
and/or guests or invitees of the Owner from sunrise to sunset daily.
4. The Owner shall maintain insurance on the Easement Parcel at all times as is
reasonably customary for such property, and in any event with the minimum amounts as
follows:
a. Commercial General Liability: S1,000,000 per occurrence; 52,000,000 in the
285975/4/TAMPA
673
aggregate.
b. Property: Full replacement value for any improvements within the
Easement Area.
Such insurance policies shall name the City as an additional insured and loss payee
(with respect to property coverage) thereunder; shall be written by insurance companies
licensed to do business in Florida and with general policyholder rating of no less than A- and a
financial rating of at least Vll; and shall contain a requirement that the insurer provide 30-days
written notice to the City of any cancellation of coverage to the attention of Risk Manager,
1700 Convention Center Drive, Miami Beach, Florida 33L39. The Owner shall provide the City
with a certificate of insurance evidencing said coverages.
5. The Owner reserves unto itself, its successors and assigns, the perpetual right
and privilege of:
a. Right of ingress and egress to and from the Easement Parcel for construction
access to the Property, and Owner shall bear the cost for repairing any
damage to the Easement Parcet, resulting from such construction;
b. Unrestricted vehicular and pedestrian access to, over, across and in the
Easement Parcel, provided that such use does not materially interfere with
the continued use of the Easement Parcel as permitted herein by the City
and the public; and
c. Using and occupying, and granting to any parties providing utility service,
telephone service and to other similar parties, the right to use and occupy
the subsurface of the Easement Parcel for any utility or drainage or other
use or purpose which does not materially interfere with the non-exclusive
rights herein granted to the City, and its authorized invitees, agents,
employees, guests lessees and licensees, including, without limitation, the
right to construct, install, maintain and operate therein electrical, telephone,
telegraph, telecommunication, gas, gasoline, sewer, water, and drainage
fixtures.
6. The parties agree that in connection with each of their respective rights to
install and maintain utilities in the subsurface of the Easement Parcel pursuant to this grant of
easement, each party (i) shall notify the other of its intention to install, repair or otherwise
maintain such utilities, (ii) shall cooperate fully with the other party and take such steps as
may be necessary to insure that any such installation, maintenance or repair of said utilities
will not interfere with the use or functioning of existing utilities, (iii) shall, to the extent
feasible, integrate any proposed installation, maintenance or repair with any proposed work of
a similar nature by the other party, and (iv) shall not unreasonably interfere with the use of
the Easement Parcel by the other party as permitted under this grant of easement.
285975t4t1AMPA
674
7. City shall not construct or permit to be constructed any structure or obstruction
on or over or interfering with the construction or any other aspect of the 87th Terrace
lmprovements located upon the Easement Parcel.
8. Owner covenants, warrants and represents that it is the fee simple owner of
the Easement Parcel and has the right, title, and capacity to grant the perpetual easement
granted herein.
9. This grant of perpetual easement shall inure to the benefit of and be binding
upon the heirs, legal representatives, successors and assigns of the parties hereto, as
applicable.
10. Any notices required or permitted to be given under this Easement shall be in
writing and shall be deemed to have been given if delivered by hand, sent by recognized
overnight courier (such as Federal Express) or mailed by certified or registered mail, return
receipt requested, in a postage prepaid envelope, and addressed as follows:
lf to the City at: City of Miami Beach, City Hall
1700 Convention Center Drive
Miami Beach, Florida 3313
Attn: City Manager, City Attorney
With a copy to: Squire Patton Boggs (US) LLP
201 North Franklin Street, Suite 2100
Tampa, Florida 33602
Attn: Stacy Krumin. Esq.
lf to Owner at: 8701 Collins Development, LLC
c/o Terra Group
2675 S. Bayshore Drive
Miami, FL 33133
Attn: David Martin
With a copy to: Jeffrey Bercow, Esq.
Bercow Radell & Fernandez, P.A.
200 5. Biscayne Blvd.
Suite 850
Miami, Florida 33131
Notices personally delivered or sent by overnight courier shall be deemed given on the
date of delivery and notices mailed in accordance with the foregoing shall be deemed given
three (3) days after deposit in the U.S. mails. The terms of this Section shall survive the
termination of this Easement.
285975/4/TAMPA
675
11.Construction.
a. This Easement shall be construed and governed in accordance with the laws
of the State of Florida. All of the parties to this Agreement have participated
fully in the negotiation and preparation hereof; and, accordingly, this
Easement shall not be more strictly construed against any one of the parties
hereto.
b. ln construing this Easement, the use of any gender shall include every other
and all genders, and captions and section and paragraph headings shall be
disregarded.
c. All of the exhibits attached to this Easement are incorporated in, and made a
part of, this Agreement
L2. Severabilitv. ln the event anyterm or provision of this Easement be determined
by appropriate judicial authority to be illegal or otherwise invalid, such provision shall be given
its nearest legal meaning or construed as deleted As such authority determines, and the
remainder of this Easement shall be construed to be in fullforce and effect.
L3. Litieation. ln the event of any litigation between the parties under this
Easement for a breach hereof, the prevailing party shall be entitled to reasonable attorney's
fees and court costs at all trial and appellate levels. The terms of this Section shall survive the
termination of this Easement.
14. Time of Essence. Time shall be of the essence for each and every provision
hereof.
15. Entire Agreement. This Easement, together with the documents referenced
herein, constitute the entire agreement and understanding among the parties with respect to
the subject matter hereof, and there are no other agreements, representations or warranties
other than as set forth herein. This Easement may not be changed, altered or modified except
by an instrument in writing signed by the party against whom enforcement of such change
would be sought.
16. Force Maieure. Any prevention, delay or stoppage due to strikes, lockouts,
labor disputes, acts of God, inability to obtain labor or materials or reasonable substitutes
therefor, riot, civil commotion, fire or other casualty, and other causes beyond the reasonable
control of the party obligated to perform, excluding the financial inability of such party to
perform shall excuse the performance by such party for a period equal to any such period of
prevention, delay or stoppage.
28597514lTAMPA
[Signature pages to follow]
676
lN WITNESS WHEREOF, the undersigned has caused this grant of perpetual easement
to be executed by execution of this instrument as of this _day of
201.4.
Witnesses:THE OWNER
8701 COLLINS DEVELOPMENT, LLC
a Florida limited liability company
Sign Name:
Print Name:
Print name:
Sign Name:
Print Name:
STATE OF FLORIDA
COUNTY OF MIAMI.DADE
The foregoing instrument was acknowledged before me this day of ,2OL4
by David Martin, as manager of 87OL COLLINS DEVELOPMENT, LLC a Florida limited liability
company, on behalf of the company. He is personally known to me or has produced
as identification.
NOTARY PUBLIC
Typed or Printed Name of Notary
My Commission Expires:
Serial No., if any:
By:
SS:
28597514rfAMPA
677
ACKNOWLEDGED AND ACCEPTED this
Witnesses:
day of 2Ot4by:
CITY OF MIAMI BEACH, FLORIDA,
a municipal corporation
Sign Name:
Mayor
Print Name:
Sign Name:
Print Name:
ATTEST:
City Clerk
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
The foregoing instrument was acknowledged before me this day of _,2Ot4
by Philip Levine, as mayorof the Cityof Miami Beach, Florida, a Florida municipal corporation,
on behalf of the City. He is personally known to me or has produced
identification.
NOTARY PUBLIC
Typed or Printed Name of Notary
My Commission Expires:
Serial No., if any:
APPROVED AS TO
FORM & LANGUAGE
By:
SS:
285975/4/TAMPA
678
CONSENT AND SUBORDINATION
The undersigned lien or, owner and holder of that certain [Mortgage] recorded in Official
Records Book _, at Page of the Public Records of Miami-Dade County, hereby
consents to the grant of easement rights as provided herein and subordinates the lien and
effect of its security interest to this Easement.
Sign Name:
Print Name:Name:
Title:
Sign Name:
Print Name:
STATE OF
COUNTY OF
The foregoing instrument was acknowledged before me this day of , 2014
- on behalf of the . He/she is personally known to me or
has produced as identification.
NOTARY PUBLIC
Typed or Printed Name of Notary
My Commission Expires:
Serial No., if any:
By:
SS:
ofby
285975l4tTAMPA
679
l{Hl{ }EnAlD I !{iamiHenki.sn
r*".-.nIr-
Effi irr! r lrl::
,*,.111"1,, mrJ4{'/13
CilTY OF
NOT}TE OF
MIAMI .BEAGH
PUETIC HEAHING
iSTEE l3 IIEREEY givfn th6l a $eoonS HeadingtFuhlic *ls{rln$ nl[:l b,s hosrd hy thc
Mayor and Cisy Somml**ioe ol tt!* eky rf hllsmJ 8esdt, Florlda, h llte Comrnis*t$n
Chnmbsr*, Third Floqr, Giiy Ftsl!. 1?0* EsrlventJqn fenter Erive, Hismi Fendr. Fh*tds,
oE liliMnandry,l\aoieafirbff IS, ZS'l{ rt tI:?S r.m.. or aE soBn ther8aft€r aB th€ mat}Br can
bs hsard, to considsr:
A H+xqli*rsn fif Th* Mnlror,&rd Eity f*rnmi**isn Of The firy Of Miami Ee*ch,Is
Con*id*r Ap$rorr*:I" fulls{vitrtg $econd fteadiogtRrhlic }lsering Of .A De$elqpment
AgrEGmEnl As Authorired Unde{ Sectiqn 118-4 Of The City Eode, And $ectisna
1HL3t?U * 1trL3243, Floiida 8t*tutss, BshE66r! Ths ery And S?91 Cdllinr
Dev*X*pmer& IIC t.8]sl"l, Sfrleh o**eloprn*nt A*rBBm*n* {11 Memorisllre*Ihe
Condtrirm* Fsr\fucelln$Ths girty? fii*ht Of'WayAt STeTerrace {ast O{ Cdlim lnnen*:e
i"City PEsrd"l; t2) GrantrToTheCiryA Farpetual Fedesl*tnA-Eceaa EasemagtADrEEc
A Portiun 0f The \hcated City Parcol; {3J Ensurus Tt}B Paymsnt Tsrms For tri0'lt
Pryment Oi A \hh:ntary Monetary Cgnliitgtion. l* Tha ,Arnpunt Ol S1S,5 Millinti
Fsller*"Tc Be Use{t ByThr ftly Fff Fut}ie Frrpose*l {41 Oe,lirecte*Th* eo$dition*
FqrTrls C.$firinrcti{r1 StThe Ft$iiect LaeHtEd At 8y0* Sof:lins AveftueAE & llstrl An#
Os Eeside.,mial f,andsminium Site; Ard t6l SubieEETB And Conliirqsn{ Uipon 870I's
*ltislnfiion OfTho $onditioos Sdt Fofih [n Th* Developrnant AgresmsnL Jnquir*oc
fir$r ss di erf*d ld rhf 0ilr {rf$rfls.}i* #ffiss. st s05,6't , /470.
PFOfERIt E?01 eo:llircLrenue, Mi*rni Bea*t, F{ori{*a tFslist{*. B?'3!0?-SBS.S01SL
and 8?thTrrraca aaat of Coltins Av€nr.la"
FEhhllTfE$ USES: Fi'tay induds Eondsrfliniurns; ap€rln*nts: apartment-homls;
hstct{; t}sfi6si}}st*l untrt; and il$eq$*sry uses i![eh s* fqcilities fur ooff',ention*,
hFnque.ts Hnd osher lunctipn$ *pa,l besdlkont reeilestisnFl tacilit[e{ rwi*urafil*:
Barhirq teeilitie$ admifii5t-ariva qffiaE epece: end afly qth€r hFrE] o{ iasgrt rdst8d
ureru inclrxiing rcEfiEEory urtr *tmnrorrfy .$ffiilciatsd f*[th h6t6k, is pt.rnlasd
q,rd*r th* firy'r Land Oermlopm*nt fru$rdadenr"
TIL* rrlerirflirm rtsidential danBity is 100 di,lrdling units per Bare.The rnaxinrum
huilffng intenaity is a floer arBe ratio of ?,0, The rnaxirnum buildir*g keigtc is
200 fee|-The ac*la oi the hoasl use ia liminBd by sa&adr. hsight ffoor area ratio,
mlnimurn roorm $lx* find *ilwr sruvlsion* of tbr tsnd SEeelo$meft fegvt*tlo*s,
The teight qf any ftehitsbtebuilding on the Pro.p*rtv *hall not exceed t*0 tax uafte
top oI the rool, snd *rrfiitBctural proiBEtionE u/ill comply wiah the terrns of th* City'a
t *nd Devslagrnent 86guls tit:ns.
A copy sf t ra prsFpsed tlerefupr$efltS{rrcernent is avarlable frr inrpee+nrn cfld ra€y
obl*i,}edbyinqsiixrhgatfh8ftfy,{8toIfisybOffissff&67e7CJ0, ?I00Cw.},Brrt.BIl
Srivs" da Ffoor, *liamiEeacfi, Flonda 3,?X$$,
INTESE*TED PAEIIES nre In*{tqd to spp*fir dt thr* .rrs*tin6, *. ta r0n*ts*rrt6d t'} orl
*{*nl. &r ts*xpr**$ thslf yee$is {E Brflting sd'Jre***d:ro $e chr e ommi**i*tr. rse the etty
flerk, !?SQ fruneemlw Centef Orive, !" Flpor, qtv H*I|, il{aBmi Eee$, Fhrlda 38139-This
itsrfl is *vailable lor public in<pertion during nprnwl buainass ftours in tfte City ffierkb
Office, I78$ fonl*n{isn Cer*or firi*o, 1s Flsor" City Hall, Miilrra Bcsch, Fidride *ll33,
This mecring, flr iny it*r$ h*niin, may b$ mntlnrre{t, sild undsr su*h ekeurilstBfice$,
*dditiarcsf k{al nprioe need nst be prqvided"
FursuanttoS€Dtion?SE.fi05. F*a,5tB1.,the City hqr*fuaduiseethe:public*ratiif a percan
dmide* ts epf eal trty dccklor m*d* hrt th* (hy eomml*sion u*lrh recpefr t6 flfiy mefiBr
*en*ldersd &l ll* rns*llfi$ s{ Irs h**t{ng, such n*r*on $rs$t an$urB lhfll $ vertr}atl{fi {essrd
*f ilrB pr$f,**dirrps i* m*d*, wfiq;h recocd irtrd|^"lrte* the ts*timeny H$d csx{$erHs {rpo$
$rhirh tha appeal is ta be bassd. Ttris nolice does not EonEtitutE c$nsBrrt by the Ci'ty fo!
tta introducti*n w admrisaiqn o{slfisrwirE insdrfikslbls or irraieysnt e?idanffi.. nor doa€
fu eidhstiei$ d"{alletgas er a6peal$ ilo,t Btlltrur,is{t dlloriletil b}. ts$r"
Tm r*ryuwtthi* nuleri+l iB sge€ssi*e forrnet, rign lcngurge interprstgre, imfsffmgiiqn sfi
;ccesa fur percuna with dEEbilitiee *nd'or afll trcomrnndatiqn lo ,Euisrri any dprs.tment
or Fsnlaipet& in *.ny Ciry.rpnntdrEd: FrirEHBdlfiS, Flsnis csnte{:t us firE dti}s in advanct
&t 3$5,fl3.74lth.sie*) df TIY r.eers ffiay olso r$ll the FlorH* f,*lay $sflkq at 711"
Baf$*l E, Sr*nasJo, tttr fEr*
Eity of Mi*mi Beadrfln
i1a THUtSOAY,NOtiE!'lBER6,l0l4 I frHE
680
i iEE EEgEEEfE E E Ei EfliEE E E EE EE g$E IiA E g*
E iai EIEEaEEE E E ;;I Er€EE s t EE e5 iig PgB E EF
Ci egE [gEsEEE€ f E iiE aE{EE E E :Es ri ffE aEl E *
si iai
=EEEiEFg
* I tlt g€;Et I i e{EiE gtE ;ii g=
ii iiE iEEiiiii i i Eii iiEii i i iEiii iii Ei; ii
ii lIE EIEEiEEi t i ilE iigEEg E i iEigigiit ii: Ei
c! E;i sE*;E!ie i * EF{ sfE:it iE g EEiEiE EEE Eii si
iE
giEgs
liiiEiii
g g
;Egg
ggEiii gi g
:igiiEgiii
gi*ii
o(9,
occ
r! llJloE
=9g6
Sf
hutr, oi*6Eoz
iil
rlt
ili
!
ll,l ;Ziai
-i
6
ct
4l
d:i
o1
?l
:I
I
IUiZ)
:
E:o:9:-:E:
E:
E:aiEi
ot
e
E
=<l
=
681
THIS PAGE INTENTIONALLY LEFT BLANK
682