Development Agreement between the CMB and 1250 West Ave Owners, LLC and West Hospitality Owner, LLC z"° �s � �3�a
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Prepared and Return to:
Bercow Radell Fernandez Larkin & Tapanes
Attn: Michael Larkin
200 South Biscayne Boulevard, Suite 300
Miami, Florida 33131
(Space Reserved for Clerk)
DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT (this "Agreement") is made and entered into as
of the day of 2025, by and among the CITY OF MIAMI BEACH, a Fiorida
municipal corporation (the "C�"), and jointly and severally, 1250 WEST AVE OWNER LLC,
a Delaware limited liability company (the "Private Project Developer") and WEST
HOSPITALITY OWNER LLC, a Delaware limited liability company (the "Public Pro�ect
Developer," and collectively with Private Project Developer, the "Develoaer").
Introduction
A. The properties that are the subject of this Agreement lie in Miami Beach,
Miami-Dade County, Florida. This Agreement, among other things, is intended to and
shall constitute a development agreement between the parties pursuant to Sections
163.3220-163.3243, Florida Statutes, the "Florida Local Government Development
Agreement Act (the "Act"), and Chapter 2, Article XI of the City's Land Development
Regulations.
B. The City is a Florida municipal corporation with powers and authority
conferred under the Florida Constitution, the Municipal Home Rule Powers Act, Florida
Statutes, the Miami Beach City Charter and the Miami Beach City Code of Ordinances (the
"Code"). The City has all governmental, corporate, and proprietary powers to enable it to
conduct municipal government, perform municipal and governmental functions, and
render municipal services, including the authority to adopt, implement and enforce
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(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.
C. Private Project Developer controls the Bay Garden Manor Condominium
located at 1250 West Avenue and intends to own 100% of the units in such Condomini�m,
which Condominium is more specifically described in Exhibit "A" attached hereto and
incorporated herein by this reference (the "Devel�ment Pro e ").
D. Private Project Developer seeks to redevelop the Development Property
with the "Private Project" (as such term is defined in this Agreement).
E. Public Project Developer intends to acquire fee simple title to the property
located at 1247-1255 West Avenue and 1234 13th Street, which is more specifically
described in Exhibit "B" attached hereto and incorporated herein by this reference (the
"Hostel Site").
F. Developer intends to provide certain public benefits to the City as follows:
(i) demolish the existing improvements on the Hostel Site and thereafter improve the site
as a public park to be conveyed to the City in fee simple (the "Park Project"); and (ii)
construct missing segments of the City of Miami Beach Baywalk (the "Baywalk") adjacent
to the properties located at 800 West Avenue, 1228 West Avenue and 1450 Lincoln Road
or, alternatively provide the City with a financial contribution for future Baywalk
improvements (the "Baywalk_Project").
G. The development of the segments of the Baywalk adjacent to 800 West
Avenue, 1228 West Avenue and 1450 Lincoln Road (the "Ba_ywalk Segments") as part of
the Baywalk Project, will require Baywalk Easements (as defined below) from upland
property owners. In the event the owners (or authorized representative of the owners such
as a condominium association) of the properties located at 1228 West Avenue, 1450
Lincoln Road, or 800 West Avenue decline to provide the necessary Baywalk Easements,
Developer will provide the City with a financial contribution (the "B�alk P�ment") (as
such term is defined in this Agreement) with respect to the 800 West Avenue, 1228 West
Avenue, and 1450 Lincoln Road Baywalk Segments.
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H. The Park Project and Baywalk Project are each a "Public Project" and
collectively are the "Public Pro�ects."
I. Having fully considered this Agreement at two (2) duly noticed public
hearings in compliance with Section 163.3225 of the Florida Statutes and having
determined that the Private Project, the Public Projects, and this Agreement are in
compliance with the City's Comprehensive Plan and Land Development Regulations (as
may be amended by the "Legislative Approvals" more specifically defined below) as of the
Effective Date; and, having further determined that it is in the City's best interest to
address the issues covered by this Agreement in a comprehensive manner; the City has
agreed to enter into this Agreement with Developer.
1. The City has determined that the Private Project and the benefits to be
provided to the City by the Public Projects will benefit the City and the public through,
without limitation, the redevelopment of the Development Property with a modern low-
impact residential use, the demolition of the existing improvements on the Hostel Site,
the construction of a public park on the Hostel Site, and completion of the Baywalk Project
or financial contribution toward the same.
K. All capitalized terms used in this Introduction are defined in Section 3 of this
Agreement or elsewhere in this Agreement.
NOW, THEREFORE, in consideration of the foregoing, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties
hereby agree as follows:
1 Recitations. The foregoing recitations are true and correct and are
incorporated herein by this reference.
2 Authoritv. This Agreement is entered into pursuant to the authority and
procedures provided by the Act and Section 2.11.1 of the City`s Land Development
Regulations (the "LDRs")..
3 Definitions. All capitalized terms used in this Agreement shall have the
definitions set forth in this Section 3 unless such terms are defined elsewhere in the body
of this Agreement.
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3.1 "Act" shall mean the "Florida Local Government Development
Agreement AcY' (Sections 163.3220 - 163.3243, Florida Statutes (2024)7.
3.2 "C�_of Miami Beach Baywalk" shall mean the public pedestrian
pathways along the Biscayne Bay shoreline beginning at 540 West Avenue and ending at
145Q Lincoln Road, including gaps which the City seeks to have completed.
3.3 "BaXwalk Easements" shall mean such easements or riparia� rights
from the fee owner{s) of the Baywalk Segments, with joinders by al! applicab4e
mortgagees and other third parties, all in form and substance reasonably acceptable to
Developer, as required to acquire a title-insurable interest for the benefit of Deveioper
and the City, under, over and on the Baywalk Segments, as necessary or desirable to (a)
design, permit, and construct the Baywalk Project and (b) use, maintain and operate the
Baywalk Segments and Baywalk Improvements. The Baywalk Easements shall provide that
Developer shall not be required to maintain, repair, restore, operate or insure the Baywalk
Segments. Instead, ongoing maintenance and repair obligations for the Baywalk
Segments, once constructed, shall be the responsibility of the City.
3.4 "Baywalk Im�rovements" shall mean the specific improvements to
the Bay+nralk Segments as contemplated by the Appraved Baywalk Concept Plan.
3.5 "B�alk Proiect" is defined in the recitals.
3.6 "B_aywalk Segments" is defined in the recitals.
3.7 "Buildin�Permit" shall mean any permit issued by the City of Miami
Beach Building Department or Building Official, including any foundation, building or
phase permits.
3.8 "Business Dav" shall mean any day other than a Saturday, Sunday,
any federal or state holiday and the followinq lewish holidays: Passover (the first two (2)
days and last two (2) days only), Shavuot (two (2) days), Rosh Hashanah (two (2) days),
Yom Kippur (one (1) day), and SUkkot (the first two {2) days and last two (2} days on4y). If
any period expires on a day which is not a Business Day or any event or condition is
required by the terms of this Agreement to occur or be fulfilled on a day which is not a
Business Day, such period shall expire or such event or condition shalf oc�ur or be fulfilled,
as the case may be, on the next succeeding Business Day.
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3.9 "C�" shali mean the City of Miami Beach, a Florida municipal
corporation, having its principal offices at 1700 Convention Center Drive, Miami Beach,
Florida 33139. In the event the City exercises its regulatory authority as a governmental
body, the exercise of such regulatory authority and the enforcement of any laws, rules,
regulations, ordinances, and plans (including through the exercise of the City's building,
fire, code enforcement, police department or otherwise) shall be deemed to have
occurred pursuant to the City's regulatory authority as a governmental body and shall not
be attributable in any manner to the City as a party to this Agreement or in any way
deemed in conflict with, or a default under, the City's obligations hereunder.
3.10 "Com�rehensive Plan" shall mean the comprehensive plan which
the City has adopted and implemented for the redevelopment and continuing
development of the City pursuant to Chapter 163 Part II, of the Florida Statutes.
3.11 "Developer" shall mean the entities defined in the preamble to this
Agreement, and any permitted successors, assigns, or heirs thereof.
3.12 "Develo�ment Order" shall mean any order granting, denying, or
granting with conditions, an application for a Development Permit.
3.13 "Develoument P�opert�/" shall mean the property more specifically
described in Exhibit "A" attached hereto and incorporated herein by this reference.
3.14 "Development Permit" shall have the meaning set forth in Section
163.3221(5), Florida Statutes (2024).
3.1 S "Effective Date" shall mean the date when the City records the
executed Agreement in the Public Records of Miami-Dade County, as provided in Section
163.3239, Florida Statutes (2024).
3.16 "Estimated Hostel Site Sale Price" shall mean $20,000,000.00.
3.17 Execution Date" shall mean the date on which the last of the
required parties executes this Agreement.
3.18 "Land Developm_e_nt_Regulations L_( DRs�" shall have the meaning
set forth in Section 163.3221(8), Florida Statutes (2024) and shall also include, without
limitation, the definition of "land development regulations" in Section 1.2.1 of the City's
Resiliency Code.
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3.19 "Laws" shall mean all laws, rules, regulations, ordinances, plans,
resolutions, comprehensive plans and land development regulations, specifically
including the City's Comprehensive Plan and the LDRs.
3.Z0 "Park Project" is defined in the recitals.
3.21 "Park Improvements" shall mean the specific improvements to the
Hostel Site as contemplated by the Approved Park Concept Plan.
3.22 "Private Pro�ect" shall mean the demolition of the existing
improvements on the Development Property and construction on the Development
Property of a new high-rise residential building containing a maximum height of 330 feet
a maximum square footage of 481,316 square feet of floor area, maximum number of
residential condominium units of 125 units, and a maximum of 4,000 square feet of
commercial unit(s), a tower front setback no less than 150 feet, and a tower rear setback
of no less than 63 feet, and subterranean parking, except for loading spaces, valet
circulation, and a maximum of ten (10) visitor parking spaces (collectively, the "Restricted
Private Proiect_Elements"), it being understood that Private Project Developer may in its
sole discretion seek approvals for development parameters more restrictive than the
Maximum Private Project Elements), however the Developer may not seek variances from
these Restricted Private Project Elements. The limitations specified as Restricted Private
Project Elements are subject to City Commission approval of LDR amendments requested
by the Developer. The following uses shall not be allowed in the Private Project: (1)
entertainment establishments (indoor/outdoor), (�) adult entertainments or bookstores,
(3) tobacco/vape/medical marijuana or paraphernalia stores, (4) accessory outdoor bar
counters, (5) hostels, hotels, and apartment hotels, (6) neighborhood impact
establishments, (7) bars, (8) establishments providing exterior alcohol service or interior
alcohol service after 12 a.m., (9) liquor stores, (10) dance halls, (11) any use selling gasoline,
(12) storage and/or parking of commercial vehicles, (13) pawnshops, (14), secondhand
dea►ers of precious metals, (15) check-cashing stores, (16) convenience stores or grocery
stores, (17) occult science establishments, (18) souvenir/t-shirt shops, (19) tattoo studios,
fortune tellers, psychics, palm readers, and body piercing shops, (20) sale of insurance
salvage stock, fire sale stock, merchandise damaged by or held out to be damaged by
fire; (21) bankruptcy/going-out-of-business/liquidation or any similar sale, (22) coin box
entertainment, (23) casino gambling or games of chance establishments, (24) medical
facilities (including veterinary medicine), (25) the sale of firearms, (26) places of worship
or related stores, (z7) political offices, (28) consular, legation or any other offices of foreign
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governments, (29) tire sales, (30) pet shops, (31) major appliance sales stores, and (33)
pharmacies.
3.23 "Private Rroiect BaXwalk" shall mean that portion of the City of
Miami Beach Baywalk that is within the Developer's Property and which shall be
constructed by the Private Project Developer having a minimum width of fifteen (15) feet.
3.24 "Private Project Developer" shall mean the entity defined in the
preamble to this Agreement, and any permitted successors, assigns, or heirs thereof.
3.25 "Public Proiects" are defined in the recitals.
3.26 "Public__Praject_Developer" shall mean the entity defined in the
preamble to this Agreement, and any pe�mitted successors, assigns, or heirs thereof.
3.27 "Restricted Private_Project Elements" has the meaning assigned
such term in the definition of Private Project.
3.28 "TemporarX_._Sal.e_s.__ Center Amendments" shall mean the
amendments to the City's Comprehensive Plan and Land Development regulations
necessary to authorize use of the Hostel Site as a temporary sales center.
4 Approvals Required for Pr_o1ect_s,
a) Developer and the City acknowledge and agree that development of the Private
Project will require the following approvals (collectively, the "Private Project
Approvals"):
i. Amendments to the City's Comprehensive Plan and to the City's
Resiliency Code as contemplated by the City's Planning Board
("PB") File Nos. are P624-0698 and PB24-0703 (collectively the
"Legislative A�provals");
ii. the City's Design Review Board ("DRB") approval;
iii. Miami-Dade County Shoreline Review approval, as necessary;
and
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iv. Confirmation from the Miami-Dade Aviation Department and
the Federal Aviation Administration that there are no aviation-
related issues.
b) Developer and the City acknowledge and agree that the Baywalk Project may
require independent review and approval by and permits from the United
States Army Corps of Engineers ("ACOE"), and/or the Florida Department of
Environmental Protection ("FDEP"), and/or the Miami-Dade County Regulatory
and Economic Resources Department Division of Environmental Resource
Management ("DERM") (collectively, the "B�alk Project_A rovals").
Developer shall be responsible for obtaining the Baywalk Project Approvals
from the ACOE, FDEP, and/or DERM, as applicable, at its sole cost and expense,
with respect to the Baywalk Segments, as defined this Agreement. The City shall
execute all documents necessary for such permitting, provide technical
assistance, and generally cooperate with respect to such permitting, including
by considering in good faith and approving modifications to the Concept Plan
that are necessary to obtain the Baywalk Project Approvals from the ACOE,
FDEP, and/or DERM
c) Developer and the City acknowledge and agree that the Park Project will require
DRB approval for the design of the improvements.
d) Developer acknowledges that nothing contained in this Agreement will
obligate the City to cause the approvals by the DRB or limit the DRB`s quasi-
judicial authority to impose conditions or take any action on such applications,
except as otherwise provided by the City Code. Without limiting the generality
of the foregoing, all considerations of and actions by the City shall be
undertaken in accordance with established requirements of state statutes, if
applicable, and the City Code, in the exercise of the City's jurisdiction under its
police power. The City hereby reserves all of its rights to exercise its police
powers with respect to the aforementioned actions, and nothing in this
Agreement shall be construed to prohibit the City from duly acting under its
police power to approve, approve with conditions, or reject any public hearing
application dealing with the Hostel Site, the Baywalk Segments, or the
Development Property.
5 Hostel Site Demolition____Following Legislative Approvals. If (i) Developer
obtains the Legislative Approvals, and the time period(s) for all appeals with respect to
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the Legislative Approvals has expired with no appeals or other third-party challenge
having been fi�ed (or, in the event an appeal or third-party challenge is filed, the same has
been resolved by judgment, settlement or otherwise in a final non-appealable manner or
does not impede Developer's abi4ity to complete any work or take any action, including
closing on financing for the Project) on terms and conditions acceptable to Developer in
its sole discretion} (collectively, the "Legisiative A�proval Conditions"), (ii) Developer
waives the Legislative Approval Conditions in its sole discretion, (iii) Developer has a firm
commitment from a lender for financing of the Project, or (iv) Developer closes on
financing for the Project, then Developer will comply with the following:
a) Within ninety (90) days of the adoption of the Legislative Approvals by the City
Commission, but no later than September 19, 2025, the Developer shall close
on the acquisition of the Hostel Site and at the time of closing shafl execute
and record a Declaration of Restrictive Covenants, substantially in the form of
Exhibit "C" attached hereto, against title to the Hostel Site, providing that, for
a term of thirty (30) years following the recording of the Declaration of
Restrictive Covenants, and renewing automatica{ly for ten (10) year extensions,
unless the City agrees to release the Restrictive Covenant, (i) prohibiting
transient uses of any kind, (ii) prohibiting any alcoholic beverage
establishments, and (iii) providing that no residential units shall be leased or
rented for a period of less than six (6) months and one (1) day. Notwithstanding
the foregoing, the closing deadline herein shall be extended by fifteen (1 S) days
in the event that the seller of the Hostel Site exercises the right to extend closing
by providing written notice to Developer no later than 10:00 a.m. on the
scheduled closing date and Developer promptly provides such written notice
from the seller to the City.
b) Within fourteen (14) days of the Developer Gosing on the Hostel Site, the
Developer shall certify in writing to the City that a{I individuals residing at the
Hostel Site have been relocated, including relocation of any unhoused
individuals that may be residing at the Hostel Site. Any unhoused individuais
residing at the Hostel Site at the time of the closing shall be compassionateiy
relocated by the Developer or the Developer's designee to a facility authorized
by applicable law to provide temporary housing and services to such individuals
located outside of the City.
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c) Within thirty (30) days of the Developer closing on the Hostel Site, the
Developer shall file a demolition permit application with the City to demolish
all existing buildings and improvements at the Hostel Site.
d) Within thirty (30) days from the issuance of a demolition permit for the Hostel
Site, the developer shall commence demolition of all existing buildings and
improvements at the Hostel Site.
e) Within thirty (30) days of the completion of the demolition, the Developer shall
bring the Hostel Site into compliance with ail applicable provisions of the Miami
Beach Resiliency Code and the Code governing the maintenance of vacant lots
after demolition, inciuding without limitation Section 7.5.1,6 of the Resiliency
Code and Section 14-501 of the Code.
fl If the recorded sale of the Hostel Site reflects a sale price of less than the
Estimated Hostel Site Sale Price, then the Developer shall contribute the
difference between the recorded sale price and the Estimated Hostel Site Sale
Price to the City within sixty (60) days of the date the deed for the Hostel Site
is recorded in the public records. Developer shall record the deed reflecting the
Developer as the owner of the Hostel Site within five (S) Business Days of the
closing date.
If the Developer cannot successfully consummate closing on Hostel Site for any reason,
prior to terminating the purchase and sa4e agreement with the seller of the Hostel Site,
the Developer shall make a good faith effort to secure the right from the seller of the
Hostel Site to assign the purchase and sale agreement to the City at the same purchase
price offered to the Developer, less any deposits forfeited or paid by the Developer to
the seller. For the avoidance of doubt, the Developer's right to purchase the Hostel Site
is unassignable and only the seller of the Hostel Site, at its sole discretion, may allow
assignment of the purchase right. If the Developer does not successfully consummate
the closing of the acquisition of the Hostel Site in breach of its obligations under this
Agreement, then this Agreement shall terminate.
6 Public Prolects Conditioned on P_rivate Project �provals � Termination, If
Developer: (a) obtains all Private Project Approvals for not less than the Restricted Private
Project Elements without the imposition of terms, conditions or obligations that could
have a material adverse effect on the Private Project (as defined below), and the time
period for all appea! periods with respect to each Private Praject Approval has expired
with no appeals having been filed (or, in the event an appeal is filed, the same has been
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resolved (by judgment, settlement or otherwise in a final non-appealable manner) on
terms and conditions acceptable to Developer in its sole discretion) (collectively, the
"Private Proiect Conditions"); or (b) waives the Private Project Conditions in its sole
discretion, then Public Project Developer will proceed with each Public Project subject to
the terms of this Agreement. If any of the Private Project Conditions are not satisfied (or
not waived by Developer in its sole discretion), then this Agreement shall terminate.
For avoidance of doubt if Developer is unable to obtain the Private Project
Approvals, is able to obtain the Private Project Approvals but the Private Project Approvals
contain terms, conditions or obligations that could have a material adverse effect on the
Private Project (as defined below) or that could materially increase Developer's budgeted
costs for the development and construction of the Private Project, then Developer may,
in its sole discretion, elect to (i) diligently prepare a revised application for the Private
Project, so long as same still conforms to the terms of this Agreement; (ii) exercise any
rights of appeal; (iii) revise the scope of the Private Project to conform to the conditions
or comments imposed or sought to be imposed by the DRB; or (iv) abandon its
applications for the Private Project and terminate this Agreement.
7 Material Adverse__Effect_on Proiect Explained. Developer agrees that the
DRB's imposition of conditions requiring architectural changes to the Private Project
would not alone constitute a "material adverse effect on the Private Project". Terms,
conditions, or obligations imposed by the DRB that would have a "material adverse effect
on the Private Project" shall be limited to those mandating or resulting in any reduction
in height, any more than de minimis reduction in floor area or more than de minimis
increase in setbacks.
8 Florida Live Local _Act and Preemqtions. Upon the Effective Date of this
Agreement, the Developer voluntarily covenants and agrees that Developer shall not avail
itself of the Florida Live Local Act ("Live Local Act"), codified under Section 166.04151, Fla.
Stat (2025), any amendment thereto, or any other state statute that preempts local land
development regulations concerning maximum permitted height, maximum permitted
ffoor area ratio, or maximum permitted density.
9 Public__Pro�ect Rec�uirements. Each Public Project shall be undertaken as
follows:
a) Developer shall select and engage one or more Florida licensed design
professionals, as necessary, and general contractor(s) (each, a "Pu_b_Iic Project
Contractor") and enter into appropriate contract(s) for the Public Projects
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(each, a "Public Pro�ect Construction Contract"). Except as expressly set forth
in this Agreement, Developer shall be solely responsible for the design,
permitting and construction of each Public Project, at Developer's sole cost and
expense. Each Public Project Construction Contract shall, among other things:
(i) require that the City be named as an additional or named insured on all
insurance coverages required by such Public Project Construction Contract and
under which Developer is an additional or named insured with coverage
amounts acceptable to the City; (ii) require that the City be named a co-obligee
under any payment and performance bonds (if any) required by such Public
Project Construction Contract; and (iii) subject to rights of lenders, be
assignable to the City, at the City`s option, in the event of a default by Developer
under such Public Project Construction Contract or this Agreement that remains
uncured after the expiration of all applicable cure and grace periods.
b) For the avoidance of doubt, Developer acknowledges and understands that the
City may not waive land use board application fees and costs related to the
development of the Public Projects, applicable Building Department fees,
Mobility Fees, or Art in Public Places fees.
c) Developer and the City shall mutually agree to project oversight and
administration responsibilities for the Public Projects, it being understood and
agreed that Developer (or a consultant engaged by Developer) will have
primary responsibility for the oversight and administration of the Public
Projects, and the City may, at its option in its sole discretion, assign staff
members (or a consultant engaged by the City) to participate in the oversight
and administration of the Public Projects.
10 I_mplementation of Baywalk_Pro�ject•
a) ConceptP/anApproval. Within sixty (60) days after the Private Project Approval
has become final and the appeals period has run (subject to Developer's
acceptance or waiver of the Private Project Conditions in Developer's sole
discretion), Developer shall submit to the City a concept plan for the Baywalk
Project for the City to approve (the "Concept Plan"). The Concept Plan shall
include, at a minimum, the materials and specifications set fo�th in Exhibit "D"
and shall be in substantial conformance with the concept drawings included in
such Exhibit. In its proprietary capacity, the City shall review and either confirm,
approve, or disapprove the Concept Plan within forty-five (45) days after receipt
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of the same. If the City fails to confirm, approve, or disapprove such concept
plan within such forty-five (45) day period, then such concept plan shail be
deemed confirmed/approved by the City. However, if the City timely
disapproves such concept plan, it shall give the specific and detailed reasons
for such rejection, in which event, Developer shall within sixty (60) days after
such disapproval, submit proposed modifications to such concept plan, and
then re-submit the concept plan to the City pursuant to the foregoing process
until such concept plan has been or is deemed to have been
confirmed/approved by the City (once confirmed/approved or deemed
confirmed/approved by the City, such concept plan, the "A��roved Baywalk
Concept Plan").
b) FinalConstructionDocumentsandP�oprietaryReview. Within three (3) months
of approval of the Baywalk Concept Plan Developer shall prepare construction
documents, including the preparation of design and permit plans, and the
preparation of materials necessary for any development permits required by
the City, County, and State, it being understood and agreed that Developer's
design professionals shall be responsible for preparing the construction
documents in consultation with the City. Developer shall submit such
construction documents to the City for the City to confirm, in its proprietary
capacity, that such construction documents conform in all material respects
with the Approved Baywalk Concept Plan. The City shall review and either
confirm/approve or disapprove such final construction documents within forty-
five(45) days after receipt of the same, but for avoidance of doubt, the City may
disapprove the final construction documents only if they do not conform in all
material respects to the Approved Baywalk Concept Plan or applicable law. If
the City fails to confirm/approve or disapprove such final construction
documents within such forty-five (45) day period, then such final construction
documents shall be deemed confirmed/approved by the City. However, if the
City timely disapproves such final construction documents, it shall give the
specific and detailed reasons for such rejection, in which event, Developer shall,
within sixty (60) days after such disapproval, submit proposed modifications to
such final construction documents so that they conform in all material respects
to the Approved Baywalk Concept Plan and then re-submit them to the City
pursuant to the foregoing process until such construction documents have
been or are deemed to have been confirmed/approved by the City, and such
construction documents, once confirmed/approved or deemed approved by
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the City, shall be the deemed the final construction documents and be
submitted for permitting of the Baywalk Improvements.
c) Permitting of Baywa/k Project. The Developer shall be solely responsible for
obtaining all necessary permits for the Baywalk Project based on the Approved
Baywalk Concept Plan (the "Baywalk Permits") and shali make commercially
reasonable best efforts to obtain such permits wfthin eighteen (18) months
from the date the construction documents are approved (or deemed approved)
by the City The Deveioper shall be responsible, at its sole cost and expense, for
obtaining for the benefit of the City, all necessary easements, joinders, and
consents (in such form(s) as is/are approved by the City), from the owners of
800 West Avenue, 1228 West Avenue, and 1450 Lincoln Road within twelve (12)
months from the Effective Date of this Agreement, provided however, to the
extent any such owner of any such upland parcel is the Developer, then the
Developer shall deliver such joinders or consents to the City upon request for
same. 7he Developer shall be responsible for all permit fees associated with the
Baywalk Project. The City shall reasonably cooperate with the Developer in the
process of obtaining the necessary joinders and consents from the affected
property owners, incfuding, subject to the City's reasonable discretion,
executing documents or instruments in a form acceptable to the City Attorney
that, to the maximum extent permitted by law, allow Developer to enforce
existing easements, agreements, joinders, consents, or other documents to
which the City and upland property owners are parties thereto. The City shall
not be required to make any payments or incur any expenditures of any kind
or nature i� connection with such cooperation, and the Developer shall be
solely responsible for all costs and expenses arising from same.
d) Construction of Baywa/k P�oject. After the Developer obtains a Baywalk Permit
in respect of each Baywalk Segment, the Developer shall then be responsible,
at Developer's sole cost and expense, to complete or cause to be completed
the construction of such Baywa{k Segment, it being understood and agreed
that the Developer shall proceed with al1 deViberate speed with respect to each
Baywalk Segment as soon as the Baywalk Easement and Baywalk Permit in
respect of such Baywalk Segment have been abtained.. The Developer shall
complete or cause to be completed the construction of each Baywalk Segment
within eighteen (18) months after the Developer obtains the Baywalk Permit in
respect of each such Baywalk Segment, in compliance with all applicable laws,
including the City's Art in Public Places requirements. Upon written request by
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the Developer, the City Manager may, at its sole discretion, issue extensions of
the deadline to construct each Baywalk Segment in six (6) month increments
provided that Deve4oper is diligently pursuing construction of each permitted
Baywafk Segment and there are circumstances outside of Developer's control
impacting construction of the Baywalk Segments. Within sixty (60) days from
the date of substantiai completion of each Baywalk Segment, the Deveioper
shall transfer any and all rights the Developer holds with respect to the
improvements in an instrument reasonably acceptable to the City, constituting
each such Baywalk Segment to the City and shall deliver all of the items
specified in Exhibit "E".
e) Payment in Lieu of Missing Baywa/k Segment. Developer shali secure the
Baywalk Easements and Baywalk Permits, within the time periods described
herein. If Developer is unable to obtain a Baywalk Easement for any of the
Baywalk Project Praperties within twelve (12) months of the Effective Date (the
"Baywalk Easement Deadline") or the Deve4oper is unab{e to obtain the
Baywalk Permits within thirty(30) months from the Effective Date (the"Baywalk
Permit Deadline"), then the Devefoper shall either: (i) pay the City on the earlier
of the Baywalk Easement Deadline or the Baywalk Permit Deadline, as
applicable, the Baywalk Payment in the amounts set forth below in respect of
any Baywalk Segment for which a Baywalk Easement or a Baywalk Permit is not
obtained by the Baywalk Easement Deadline or the Baywalk Permit or (ii) at
Develaper's option, but only if(A) Developer has secured all Baywalk Easements
but has been unable to obtain Baywalk Permits for any Baywalk Segment by
the Baywalk Permit Deadline notwithstanding its diligent, good faith efforts and
(B) Developer has entered into all necessary contracts including reasonable
estimated contingency for the design and construction of a SaywaVk Segment
for which Developer has been unable to obtain a Baywalk Permit with design
professionals and contractors reasonably acceptable to the City in its sole
discretion, and such contracts are in a form reasonably acceptable to the City,
then in lieu of the payments described in subparagraph (i), the Developer may
assign to the City such contract(s) only for the Baywalk Segment(s) for which
Developer has been unable to obtain a Baywalk Permit by the Baywalk Permit
deadline notwithstanding its diligent good faith efforts and pay the City the
funds to necessary cover all amounts remaining to be paid (including for permit
fees and costs relating to those agreements), plus a 1 S percent (15°!0)
contingency payment (with such assignment and payment to the City to be
made within thirty (30) days from the Baywaik Permit Deadline, as applicable).
15
The amounts due under subparagraph (i) are:(x) $18,000,000 in respect of the
800 West Avenue Baywalk Segment, (y) $5,000,000 in respect of the 1228 West
Avenue Baywalk Segment and/or (z) $2,000,000 in respect of the 1450 Lincoln
Raad Baywalk Segment to fund the f�ture improvement of that Baywalk
Segment and any Segment in respect of which a payment is made shal{ be
removed from the 8aywalk Project scope. The Developer shafi thereafter have
no further responsibifity for that segment(s) of the Baywalk Project. Upon
written request by the Develaper, the City Manager may, at its sole discretion,
extend the Baywalk Permit Deadline in six (6) month increments provided that
Developer has submitted applications for the Baywalk Permits and diligently
pursued approval of the Baywalk Permits
11 Implementation of Park Project/Transfer of Hostel Site to City.
a) Envi�onmenta/ Assessment of Park. Developer shall procure a Level II
Environmental Assessment within thirty (30) days of the Effective Date and shall
provide said Assessment to the City within ten (10) days of receiving it.
Developer shall be responsible for the cost of the Assessment. The Developer
shall also be solely responsible for the cast of any remediation required for the
development of the Hostel Site as a park. For the avoidance of doubt, this
requirement shall apply whether or not the City has decided to proceed with
the development of a park by the Developer.
b) Deve%pment of Pa�k. The City shall decide, by written notice delivered to
Developer within twenty-four (24) months of the Effective Date, whether the
City would like the Developer to build a park or to make a payment in lieu
thereof as set forth in Section 11(g) (with failure to timely provide such written
notice being deemed an election by the City to accept the Park Project). If the
City elects not to proceed with the development of a park by the Developer,
then Develope�shall t�ansfer the Hostel Site to the City following the expiration
of such twenty-four (24) month period in accordance with 5ection 11(j)(i) (i), ln
addition, if the City elects not to proceed with the park, Develaper shal! record
or cause to be recorded a Declaration of Use setting forth the permitted uses
for the Hostel Site, substantially in the form attached hereto as Exfiibit "F",
prior to conveying the Hostel Site to the City and the City shall take title to the
Hostel Site subject to said Declaration of Use. If the City elects to proceed with
the park, Developer shall design and construct a park on the Hostel Site at
16
Developer's sole cost and expense at a cost not to exceed $2,000,000.00. The
Park Project shall be governed as follows.
c) Concept Plan App�oval. If the City elects to proceed with the Park, within one
hundred twenty (120) days from the date the City so elects, but not sooner than
the date upon which the Private Project Approval has become final and the
appeals period has run (subject to Developer`s acceptance or waiver of the
Private Project Conditions in Developer's sole discretion), Developer shall
present a concept plan to the City Manager or designee for the creation of the
park (the "Park Concept Plan") for the City`s review. The City Manager shall
review and either confirm, approve or disapprove the Park Concept Plan within
forty-five (45) days after receipt of the same. If the City Manager fails to confirm,
approve or disapprove the Park Concept Plan within such forty-five (45) day
period, the plan shall be deemed confirmed/approved by the City. However, if
the City Manager timely disapproves of the Park Concept Plan, he/she shall give
the specific and detailed reasons for such rejection, in which event, Developer
shall, within sixty (60) days after such disapproval, submit proposed
modifications to such concept plan, and then re-submit the concept plan to the
City pursuant to the foregoing process until such concept plan has been or is
deemed to have been confirmed/approved by the City (once
confirmed/approved or deemed confirmed/approved by the City, such concept
plan, the "A roved Park Conce t Plan").
d) Schematic P/ans/Hearing Approval. Developer, at Developer's sole cost and
expense shall be responsible for preparation and processing of all necessary
materials for the City's DRB review and approval of schematic design plans
implementing the Park Concept Plan. Developer shall prepare and submit the
DRB application within one hundred twenty (120) days of the City's approval of
the Park Concept Plan. The City shall timely execute all necessary application
materials upon the written request by Developer. In the event the DRB requires
changes to the proposed design, Developer will be responsible for preparing
all necessary modifications.
e) Final Const�uction Documents and Prop�ietary Review. Within six (6) months of
the DRB approval of schematic design plans, Developer shall prepare and
submit to the City Manager the final construction documents, including the
preparation of design and permit plans, and the preparation of materials
necessary for any development permits required by the City, County, and State,
17
it being understood and agreed that Developer's design professionals shall be
responsible for preparing the construction documents in consultation with the
City. Developer shall submit such final construction documents to the City
Manager for the sole and limited purpose of verifying that the final construction
documents conform in all material respects with the applicable approved Park
Plans.The City shall review and either confirm/approve or disapprove such final
construction documents within forty-five (45) days after receipt of the same,
but for avoidance of doubt, the City may disapprove the final construction
documents only if they do not conform in all material respects to the applicable
approved schematic design plans. If the City fails to confirm/approve or
disapprove such final construction documents within such forty-five (45) day
period, then such final construction documents shall be deemed
confirmed/approved by the City. However, if the City timely disapproves such
final construction documents, it shall give the specific and detailed reasons for
such rejection, in which event, Developer shall, within sixty (60) days after such
disapproval, submit proposed modifications to such final construction
documents so that they conform in all material respects to the Approved Park
Concept Plan and DRB approval and then re-submit them to the City pursuant
to the foregoing process until such final construction documents have been or
are deemed to have been confirmed/approved by the City, and such final
construction documents, once confirmed/approved or deemed approved by
the City, shall be the documents submitted for building permit for the Park
Project.
fl Processing of Const�uction Pe�mit and Fina/ Const�uction. Within thirty (30)
days of the City's proprietary approval of the final construction documents for
the Park, Developer shall, at its sole cost and expense, submit the building
permit plans to the City. Developer shall diligently pursue the issuance of a
building permit for the improvements, and shall secure a building permit within
twelve (12) months of submission of the building permit application. Developer
shall complete the Park Project within twelve (12) months from the Temporary
Sales Center Use End Date (as defined below in Section 11(j))._If the City chooses
for the Developer to proceed with the Park Project, the Developer shall make
commercially reasonable best efforts to complete the Park Project, within the
time periods described herein.
g) Paymentin Lieu ofPark Project. If the City or the DRB requires modifications to
the Concept Plan or imposes conditions that require modifications to the
18
Concept Plan that will cause the estimated cost of the Park Project, as
reasonably determined by the Developer, to exceed $2,000,000.00, the
Developer may elect to forego completion of the Park Improvements a�d
convey the Hostel Site to the City in accordance with Section 11(j)(i} and the
Developer shall pay the City $2,000,000.00 to fund the Park Project, less any
reasonable costs expended by the Developer in furtherance of the Park Project,
up to a maximum of$300,000.00. If the City elects not to proceed with the Park
Project following the twenty-four (24) month period in subsection (b), the
Developer shall pay the City $2,000,000.00 within thirty (30) days of conveyance
of the Hostel Site to the City in accordance with Section 11(j)(i). In either case,
after the Hostel Site is conveyed to the City and the payment is made, the
Developer shall have no further responsibility for the Park Project.
h) Temporary Sa/es Center. Within ninety (90) days of the Effective Date, the
Developer shall initiate, prepare, and submit the Temporary Sales Center
Amendments to authorize temporary use of the Hostel Site as a sales center for
the Private Project during the time period between acquisition of the Hostel
until Developer transfers the Hostel Site to the City. However, nothing herein
guarantees that the proposed amendments will be authorized by the City
Commission, acting in its legislative capacity. All improvements made to the
Hostel Site by the Developer in connection with development of the temporary
sales center shall be excluded fram the cost estimates for development of the
Park Project and shall be conveyed to the City upon transfer of the Hostel Site
to the City. The City may, at its sole discretion, request that the Developer
remove all or part of the improvements made to the Hostel Site in connection
with the temporary sales center following the Temporary Sales Center Use End
Date (as defined be{ow in Section 11(j)). Upon sueh a request, Developer sha{{
remove the improvements made to the Hostel Site in connection with
temporary sales center within ninety (90) days. To the extent reasonabiy
practicable, the City shall expedite processing of the Temporary Sales Center
Amendments, development approvals for the temporary sales center, and
temporary sales center permits.
i) Public Access to Hoste/ Site and Temporary Sa/es Center. During the time
period that the Hostel Site is used as a temporary sales center, the Developer
shall allow reasonable access to the Hostel Site to the general public for passive
enjoyment between the hours of 11:00 AM and sunset. The Developer may
restrict this public access for maintena�ce, or improvements, or repairs to the
19
temporary sales center or the Hostel Site, or for private events. In addition, the
Developer shall permit reasonable use of the temporary sales center structure
for up to four (4) hours once per month by a registered neighborhood
association comprised of inembers living in the West Aver►ue neighbarhaod,
provided that an authorized representative of the neighborhood association
makes a written request for such use at least two (2) weeks prior to the
proposed meeting date, and the proposed meeting date does not conflict with
the Qeveloper's planned period of restricted access.
j) Transfe�of Hoste/Site.�
i. If the City elects not to proceed with the park, foilowing the twenty-
four (24) month decision period in Section 11(b), or the Developer
elects Payment in Lieu of the Park Project as provided in Section
11(g), the Developer may remain in possession of the Hostel Site
for up to (30) months following expiration of the twenty-four (24)
month to allow for development and temporary use of the Hostel
Site as a sales center fo� the Private Project for up to fifty-four (54)
months from the Effective Date, subject to the approval of the
Temporary Sales Center Amendments. Not {ater than the earlier of
(A) the date of expiration of the thirty (30) month period or (b)
ninety {90) days after the Temporary Sales Center is no longer
operating as such (the earlier of such dates, the "Temporary Sales
Center Use End Date"), the Developer shall convey the Hostel Site
to the City within sixty(60) days in accordance with subsection (j)(iii)
below. During the sixty (60) day period following the Temporary
5ales Center Use End Date, the Developer shall wind down
operations of the temporary sales center and remove any
improvements, if requested, as required by subsection (h).
ii. !f the City elects to proceed wfth the park, the Developer shall
commence constructian of the Park lmprovements within one-
hundred twenty (120) days of the Temporary Sales Center Use End
Date, and shalf complete the Park Project within twelve (12) months
firom the Temporary Saies Center Use End Date. Upon completion
of the Park Improvements, Developer shall provide notice of such
completion (the "Park Completion Notice") to the City. The parties
will thereafter set a mutually agreed upon date for the closing of
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the conveyance of the Hostel Site to the City (the closing of the
conveyance of the Hostel Site to the City, whether or not the City
elects to proceed with the Park, the "Closin "), but no earlier than
sixty (60) days following the date of the Park Completion Notice.
The City shall have the right to inspect the Park Improvements for
compliance with the Approved Park Concept Plan.
iii. At the Closing, Public Project Developer shall deliver to the City the
following: (i) a Special Warranty Deed (the "Deed") conveying to
the City fee title to the Hostel Site free and clear of all liens and
encumbrances other those reasonably acceptable to the City at the
City's sole discretion; (ii) customary title affidavit reasonably
required by the title company; (iii) a "marked-up" title commitment
issued by the title insurer specified by the City committing to issue
an owner's policy to the City with an effective date as of the date
and time of recording the Deed in the Public Records of Miami-
Dade County, Florida, with an insured amount equal to the
estimated market value of the Hostel Site as of the Closing; and (iv)
such other instruments as may be necessary to complete the
conveyance of the Hostel Site together with any improvements
thereon. At Closing, the Public Project Developer shall also deliver
to the City all of the items specified in Exhibit "G".
iv. The City shall be responsible at its sole cost and expense for the
operations, maintenance, repair, replacement, restoration of the
Hostel Site from and after the Closing, and all obligations and
liabilities of Developer with respect to the Hostel Site as of the
Closing date shall terminate at the Closing except for (A) the
warranties in the Deed, (6) any environmental conditions existing
at the Hostel Site, and (C) Developer's indemnification obligations
pursuant to this Agreement.
12 Conditions Precedent to Issuance of Certificate of Occu�anc�or_Temporary
Ce�tificate of Occu�ancy for the Private Project. The Developer acknowledges that
construction of the Baywalk Project or payment in lieu of said Project, conveyance of the
Hostel Site, and completion of Park Improvements or payment in lieu of said
Improvements, are additional and essential considerations of the City's processing of the
approvals required for the Private Project. Except as otherwise provided in this Agreement,
21
the Developer shall not apply for, and the City shall not issue, any temporary certificate of
occupancy, final certificate of occupancy, and/or certificate of completion for the Project
(in whole or in part) until the following has occurred:
(a) Unless a bond or letter of credit is provided as set forth below in this
clause (a), Developer shall have completed construction of the Baywalk Project,
substantially in accordance with the Approved Baywalk Concept Plan and Baywalk
Permits (as evidenced by the issuance of one or more temporary certificates of
occupancy, final certificates of occupancy, or certificates of completion that individually
or collectively encompass the Baywalk Project). Alternatively, Developer shall have made
the payment(s) in lieu as set forth in subparagraph (i) in section 10(e) or assigned the
design professional and construction contracts and made the necessary payments in
accordance with the provisions set forth in subparagraph (ii) in Section 10(e). If the
Baywalk Segments are not substantially completed at the time of application for TCO
for the Private Project, the City Manager shall authorize issuance of a TCO for the Private
Project (but not a final certificate of occupancy) under this Agreement if, and only if, (v)
there exists no uncured Event of Default, (w) the Developer has obtained the Baywalk
Easements and the Baywalk Permits (x) the Developer has commenced construction and
achieved twenty-five percent (25%) completion of the construction of the Baywalk
Segments, defined as payment of twenty-five percent (25%) of the contracted
construction cost of each Baywalk Segment (y) the Developer is diligently pursuing
construction of the Baywalk Segments, and (z) all other requirements of this Section
have been satisfied, provided that the Developer posts a letter of credit or bond in an
amount equal to the Baywalk Segment Construction Cost (as hereinafter defined) for
the Baywalk Segment(s) remaining to be completed, which letter of credit or bond: (A)
is unconditional, irrevocable, and payable to the City on site at an office of the issuing
financial institution in a single draw equal to the then remaining Baywalk Segment
construction Cost, (6) is in form and content reasonably acceptable to the Developer
and the City,and (C) shall contain an "evergreen" provision which provides that the letter
of credit or bond is automatically renewed on an annual basis (unless the issuer delivers
sixty (60) days prior written notice of cancellation to the City) until the outstanding
Baywalk Segment(s) shall have been completed (as evidenced by the iss�ance of one or
more temporary certificates of occupancy, final certificates of occupancy, or certificates
of completion) and accepted by the City, and which City shall have the right to present
for payment in accordance with its terms in the event of Baywalk Segment Construction
Default (as hereinafter defined). For the purpose of this subsection, Baywalk Segment
Construction Cost shall mean an amount equal to one hundred percent (100%) of the
sum of (A) the then remaining cost to complete the construction of the applicable
22
Baywalk Segment then remaining to be completed based on the applicable Baywalk
Segment Construction Contract, defined as the cost to construct the remaining Baywalk
Segment(s) as initially set forth in the construction contract, less any amounts paid
towards construction of the applicable Baywalk Segment plus the amount of any change
orders submitted by the contractor, whether or not yet approved and (B) the then
remaining amount of payments due to any design professional for construction
administration. Baywalk Segment Construction Default shall mean any of (I) the failure
of the Developer to complete construction of any Baywalk Segment in accordance with
this Agreement, which default remains unc�red after the expiration of all applicable
grace, notice and cure periods and/or (II) if the City Manager authorizes the issuance of
a TCO pursuant to the provisions of this Section 12 prior to completion of the Baywalk
Project, the failure of Developer to obtain a certificate of completion of any Baywalk
Segment within twelve (12) months from the date the City Manager authorized issuance
of the TCO without notice or cure period, except that the City Manager may authorize
six (6) month extensions if the Developer is making commercially reasonable efforts to
progress the Baywalk Project and/or (III) institution of any foreclosure proceedings by
any lender (including without limitation any mezzanine lender) of Developer or any of
its members with respect to the Baywalk Project.
The Developer shall have the right to reduce the amount of the letter of credit or bond
to reflect the then remaining cost to substantially complete the applicable Baywalk
Segments(s) on a quarter calendar basis by delivering to the City Manager
documentation supporting such a reduction (including at a minimum a completion
certificate by the applicable Public Project Contractor, certifying the percentage
completion of the Baywalk Segment(s) based on the schedule of values within the
applicable Baywalk Segment contract(s). The City shall cooperate with Developer in
reducing the amount of the letter of credit or bond (including, without limitation,
promptly providing an original instruction letter, duly signed by the City Manager or
designee, authorizing the applicable financial institution to reduce the amount of the
letter of credit or bond and otherwise complying with any requirements of the iss�er of
the letter of credit or bond in order to reduce the amount of same. The City shall return
the letter of credit or bond together with an original instruction lender duly signed by
the City Manager or designee, authorizing the applicable financial institution to cancel
the letter of credit and otherwise comply with the requirements of the issuer of the letter
of credit or bond to cancel same.
Following any Baywalk Segment Construction Default by the Developer under this
Agreement that is not cured by the Devetoper or any lender within any applicable notice
23
and cure period, the City shall have the right, but not the obiigation, to draw all funds
under the letter of credit or bond. The right to draw funds under the letter of credit
shall be the City's sole and exclusive remedy with respect to a Baywalk Segment
Construction default by the Developer that is not cured by the Developer or any lender
within any applicable notice and cure period under this Agreement, if applicable. Upon
drawing of funds by the City under the letter of credit or bond, then all conditions
precedent to the issuance of a TCO, CO, or Certificate of Completion for the Private
Project (whether in whole or in part} whether or not construction of the applicable
Baywalk Segment(s)has been completed or accepted by the City, in which case the City`s
issuance of a TCO, CO, or Certificate of Completion for the Private Project shall only be
subject to the regulatory authority that may be required by any agencies having
jurisdiction over the Private Project (or such part thereof for which a TCO, CO, or
Certificate of Completion is sought). If the City draws funds under the letter of credit
and there are any excess funds remaining after the City completes construction of the
outstanding Baywalk Segment(s), the City shall return any such excess funds to the
Developer promptly after the City completes such construction of the Baywalk
Segment(s).
(b) The Developer shall have conveyed the Hostel Site to the City as set
forth in section 11(j)(i).
(c) The Developer shall have completed construction of the Park
Improvements, substantially in accordance with the Approved Park Concept Plan (as
evidenced by the issuance of one or more temporary certificates of occupancy, final
certificates of occupancy, or certificates of completion that individually or collectively
encompass the Park Improvements). Alternatively, Developer shall have made the
payment(s) in lieu as set forth in section 11(g).
(d) Upon final non-appealable approval of a Design Review Board
approval for the Private Project, the Developer shall cause a Declaration of Restrictive
Covenant encumbering the Development Property for a term of thirty (30) years
following the recording of the Declaration of Restrictive Covenants, and renewing
automatically for ten (10) year extensions, unless the City agrees to release the
Restrictive Covenant, in a form acceptable to the City Attorney, to be recorded in the
public records providing that the Developer shall not avail itself of the "Live Local Act,"
codified under Section 166.04151, Fla. Stat(2025), any amendment thereto, or any other
state statute that would preempt local land development regulations concerning
maximum permitted height, maximum permitted floor area ratio, or maximum
24
permitted density, and further prohibiting residential units within the Private Project to
be rented or leased for a period of less than six (6) months and one (1) day.
13 Rental Assistance for Lessees of Development Pro�ertk Developer shall
provide financial assistance to Bona Fide Lessees (as defined below) whose leases are
terminated by the Developer without commercially reasonable cause (such as violation of
the terms of the lease)or who reside in the existing building at the Development Property
sixty (60) days prior to the termination of the existing building's condominium, to assist
those Lessees in securing new residential leases as follows: (i) $5,500 for studio apartment,
(iij $7,500 for one-bedroom units or (ii) $10,000 for two-bedroom units. For Bona Fide
Lessees that provide proof of relocation within the City reasonably acceptable to the
Developer, the Developer shall provide financial assistance as follows: (i) $12,500 for
studio apartment, (ii) $17,500 for one-bedroom units, and (iii) $21,000 for two-bedroom
units instead of $5,500 for studio apartment, $7,500 for one-bedroom units or $10,000
for two-bedroom units.
a) "Bona Fide Lessees" shall mean leaseholders meeting the following
requirements as of June Z7, 2025:
i. Resides full time in the unit.
ii. Is a lessee that had, at the commencement of the lease entered into
between the Bona Fide Lessee and the relevant unit owner (which
may include Developer), a written lease with a minimum initial term
of six (6) months, and such lease was entered into on or before June
27, 2025.
iii. Is not as of the date of the claim for rental assistance subject to
eviction proceedings pursuant to Chapter 83 of the Flarida Statutes.
b) Developer represents that no purchase and sale agreement entered into
with respect to existing condominium units within the Development
Property required, or requires, termination of existing leaseholds. Developer
shall not require any unit owner to deliver any existing unit vacant or
otherwise terminate any existing tenant's lease except for commercially
reasonable cause. Upon acquisition of existing apartment units within the
Development Property, the Developer shall not terminate any lease for a
tenant that had an initial term of at least six (6) months at the
commencement of the lease and was entered into on or before June 27,
25
2025 except for commercially reasonable cause. Further, Developer shall
offer any Bona Fide Lessee who requests to remain at the Development
Property beyond the expiration of such tenant's lease the opportunity to
remain at the Development Property on a month-to-month basis, or enter
into a new lease with Developer, until such time as Developer terminates all
leases at the Development Property, subject to Developer's right to decline
such tenancy to such Bona Fide Lessee for commercially reasonable cause,
as determined by Developer in Developer's sole discretion. Developer shall
not exercise its discretion in a pretextual manner to avoid the payments
required under this section to Bona Fide Lessees, and Developer's decision
to decline month-to-month tenancy, or new leases, to ali Bona Fide Lessees,
shall serve as prima facie evidence of the Developer's intent to avoid
payment in violation of this Section. If Developer enters into any new leases
for units at the Development Property, Developer shall disclose to any
prospective tenant its intent to redevelop the Development Property.
c) Within thirty (30) days of execution of this Agreement, the Developer shall
make commercially reasonable efforts to: (i) obtain information from all unit
owners regarding lessees at the Development Property as of June 27, 2025
who qualify as Bona Fide Lessees and (ii) provide written notice, with such
notice to be approved by the City Manager or designee, to all unit owners
and Bona Fide Lessees of the building advising them of the rental assistance
required to be provided by Developer pursuant to this Section and
instructions for making a claim for rental assistance ("Rental Assistance
Notice"). Copies of the Rental Assistance Notice shall also be posted at
prominent Iocations within common areas of the Development Property.
Within ninety (90) days of the execution of this Agreement, Developer shall
provide a schedule reflecting the names of all Bona Fide Lessees, the unit
type each such Bona Fide Lessee occupies at the Development Property,
and contact information for each such Bona Fide Lessee.
d) Developer shall provide written notice to Bona Fide Lessees prior to the
termination of any leases (including month-to-month tenancies) in
accordance with all applicable laws. Payments to Bona Fide Lessees shall be
made within thirty (30) days of termination of the lease agreement by the
Developer. Notwithstanding the foregoing, a tenant identified as a Bona
Fide Lessee in accordance with the provisions of Section 13(c) that becomes
the subject of eviction proceedings pursuant to the terms of such tenant's
26
lease or Chapter 83 of the Florida Statutes shali not be entitled to rental
assistance.
e) Prior to submission of an application for a demolition permit of the existing
improvements at the Development Property, the Developer shall submit
documentation reasonably acceptable to the City that demonstrates its
compliance with the notice and rental assistance requirements specified in
this Section 13. A Bona Fide Lessee that does not claim the rental assistance
offered in this Section by the date that is twelve (1z) months from the date
of the termination of the condominium (the "Rental Assistance Claim
Deadline") shall have been deemed to forfeit the rental assistance. Within
thirty (30) days from the Rental Assistance Claim Deadline, Developer shall
(i) calculate the rental assistance that would have otherwise been paid to
the Bona Fide Lessees that were entitled to rental assistance but did not
claim such rental assistance, assuming such Bona Fide Lessee did not intend
to continue residing in the City and (ii) submit an itemized copy of such
calculation together with payment of the amount so calculated to the City.
Developer shall provide an affidavit to the City affirming compliance with
this Section, in form and substance acceptable to the City Manager and City
Attorney in their sole discretion, before a demolition permit may issue for
the existing building on the Development Property.
14 Purchase of Remaining Units at Development Proqert�. For any unit that the
Developer does not own or has not contracted to purchase on the Effective Date of the
Agreement, the Developer shall compensate such unit owners at a value no less than
twenty percent (20%) above the fair market value. The fair market value shall be
determined in accordance with Section 718.117(3)(c)(3), Florida Statutes, as same may be
amended from time to time. The Developer shall provide the City with an affidavit
attesting to the values paid for the remaining units at the Development Property not
owned or under contract for purchase by the Developer on the Effective Date of this
Agreement prior to obtaining a demolition permit for the existing improvements at the
Development Property.
15 A�plications for Private Project_Approvals and the Baywalk Project
Approvals. This Agreement contemplates that Developer will expeditiously file
applications for the Private Project Approvals and the Public Project Approvals. In
exchange for the public benefits provided by Developer, the City shall schedule all
required public hearings as soon as reasonably practicable. The City shall designate a
27
point of contact within the City Administration to facilitate processing of all Private Project
and Public Project Approvals. Notwithstanding the foregoing, Qeveloper shall be solely
responsible for obtaining all final, non-appealable Private Project Approvals and the
Pubiic Projects Approvals for the Private Project and the Public Projects. No extension of
any time period herein shall be deemed to be an extension of any time periods contained
within the Private Project Approvals or the Public Projects Approvals. The expiration of
Private Project Approvals and the Public Projects Approvals shall be subject to Section
2.11.2 of the Resiliency Code.
16 Laws Governinq this Agreement. For the entire Term of this Agreement, the
City hereby agrees that the City's Resiliency Code (as may be amended by the Legislative
Approvals) governing the development of the Development Property, as they exist as of
the Execution Date of this Agreement, shall govern the development of the Property
(including the Private Project and the Public Projectsa during the entire Term of this
Agreement. Notwithstanding the foregoing, the City may apply subsequently adopted
laws or policies of general applicability to the Property (including the P�ivate Project and
the Public Projects) (particularly as they may relate to quality of life issues such as, but not
limited to noise, litter, and hours af operation) as permitted or required by the Act,
including, without limitation, Section 163.3233(2), Florida Statutes, as same may be
amended from time to time; provided, however, that in no event shall the City apply any
subsequently adopted law or policies in a manner that requires any alterations or
modifications to the Private Project and the Public Projects or any amendments or
modifications to the Private Project Approvals or the Public Projects Approvals.
17 Compliance with Local Re�ulations Regarding Development Permits. This
Agreement is not and shall not be construed as a Development Permit, Development
Urder, approval or authorization to commence any development, fill, or other land
modification. DeveloRer and the City agree that the failure of this Agreement to address
a particular permit, approval, procedure, condition, fee, term or restriction in effect on the
Effective Date shall not relieve Developer of the necessity of complying with any such
permit, approval, procedure, condition, fee, term or restriction, subject however to the
terms and provisions of this Agreement.
18 Reservation of Rights. This Agreement shall not affect any rights that may
have accrued to any party to this Agreement under any applicable law, rule or regulation
and each party hereto reserves any and all of such rights.
28
19 Consistenc.y with the City's Comprehensive Plan. The �ity has adopted and
implemented the Comprehensive Plan. The City hereby finds and declares that the
provisions of this Agreement dealing with the Property (including the Private Project and
the Public Projects) are consistent with the City's Comprehensive Plan and Resiliency Code
(as may be amended by the Legislative Approvals), subject to all applicable requirements,
permits and approvals.
20 Concurrencv. Developer shall be solely respansibie for obtaining, at its sole
cost and expense, all land use permits for the Public Projects and Private Project, including,
but not limited to, all permits and approvals required pursuant to Section 163.3180,
Florida Statutes (2024), with respect to concurrency requirements for roads, sanitary
sewer, solid waste, drainage, potable water, parks and recreation, and schools (the
"Concurrency Requirements"). Prior to applying for the Initial Building Permit for the
Private Project, Developer shall apply to the appropriate governmental authorities and
obtain letters or other evidence that Developer has satisfied all applicable Concurrency
Requirements with respect to the Private Project, and shall diligently and in good faith
obtain such letters or other evidence that the Private Project meets all applicable
Concurrency Requirements, and shall pay such impact fees or mobility fees as may then
be due or applicable to meet Concurrency Requirements.
21 Effective Date; Duration; and Term.
a) Within fourteen (14) days following approval of this Agreement at two
(2) public hearings and the execution of this Agreement by all parties,
the City shall record this Agreement in the Public Records of Miami-Dade
County. This Agreement shall become effective only after it has been
recorded in the Public Records of Miami-Dade County, Florida.
Developer agrees that it shall be responsible for all recording fees
related to the recording of this Agreement.
b) The initial Term of this Agreement shall be a total of ten (10) years from
the Effective Date. The Term of this Agreement shall be automatically
extended by five (5) years provided (i) the Park Project is completed or
the applicable payment is made, (ii) the Closing occurs, and (iii) either
the Baywalk Project is completed or the applicable Baywalk Payment is
made, all within the time frames set forth in this Agreement. The Term
of this Agreement shall be subject to the force majeure provisions of
Section 38. Any further extension of the Term of this Agreement will only
29
be by the mutual consent of the City and Developer subject to a public
hearing pursuant to Section 163.3225, Florida Statutes. No notice of
termination shall be required by either party upon the expiration of this
Agreement, and after the expiration of this Agreement the parties shall
have no further obligations under this Agreement, except for those
obligations that expressly survive the expiration of this Agreement.
c) The City shall review this Agreement at least once every twenty (20)
months, to determine if there has been demonstrated good faith
compliance with the terms of the development agreement pursuant to
Section 163.3235, Florida Statutes. Any action to modify or revoke this
Agreement pursuant to this Section must be undertaken following the
public hearing process required by Section 163.3225, Florida Statutes,
and based on substantial competent evidence that Developer is not in
compliance with its obligations and responsibilities under the
Agreement.
22 Permitted Development.
a) Pe�mitted Deve%pment and Uses. The Development Property is
designated as "High Density Multi Family Residential" (RM-3) according
to the City's adopted Comprehensive Plan Future Land Use Map. The
"Residential multifamily, high intensity" (RM-3) zoning district permits
multi-family residential buildings, hotels, and related accessory uses. The
Development Property may be used for the purposes permitted and
regulated in these land use designations and zoning districts, as further
limited by the by the City's Resiliency Code and Comprehensive Plan, as
amended by the Comprehensive Plan Amendment and the Legislative
Approvals.
b) Density, Building Heights, Setbacks and /ntensities The maximum
density, heights, setbacks and intensities for any development on the
Development Property shall be regulated by the City's Resiliency Code,
Comprehensive Plan (as amended by the Legislative Approvals) and any
applicable Federal, State or County laws, rules and regulations. Subject
to the restrictions set forth in the Residential Multifamily Medium
Density land use designation, following the adoption of the Legislative
30
Approvals, the maximum residential density for the Development
Property shall be seventy-five (75) dwelling units per acre.
23 Public Facilities to Serve the Development Propert�y. A description of the
public facilities that will service the Development Property, including who shall provide
such facilities, the date any new facilities, if needed, will be constructed, and a schedule
to assure public facilities are available concurrent with the impacts of the development of
the Development Property, is set forth in Exhibit "H" attached hereto and incorporated
herein by this reference.
24 Public Reservations and/or Dedications. A description of the rese►vations
and/or dedications of land for public purposes that are proposed under the terms of this
Agreement is set forth in Exhibit "I" attaehed hereto and incorporated herein by this
reference.
25 Required Development Permits. A listing and description of all local
development permits approved or needed to be approved for the development of the
Private Project and the Public Projects is set forth in Exhibit_"J" attached hereto and
incorporated herein by this reference.
26 Developer's Ripht to Terminate. Developer shall have the option to
terminate this Agreement in its sole and absolute discretion in the following events:
a) If the Private Project Conditions (including, without limitation, the Legislative
Approval Conditions) are not satisfied;
b) If the Public Project City Approvals are not obtained; or
c) Public Project Developer does not successfully consummate the closing of the
acquisition of fee simple title to the Hostel Site free and clear of liens and
encumbrances (other than liens o�encumbrances that can be released through
the payment of moneys not to exceed $500,000).
27 Default. Each of the following shall be an "Event of Default" by Developer
hereunder:
a} If Developer shall fail to acquire title to the Hostel Site as required under
Section 5 (the "Hostel Acquisition Failure") by or before September 19,
2025 (or October 4, 2025 if the seller exercises the one-time right to an
extension and Developer provides notice to the City as specific in Section
31
S(a)). In the event of Hostel Acquisition Failure, the Developer shall have
ten (10) days commencing on September 20, 2025 (or the postponed
closing date, not later than October 5, 2025, if the seller exercises the
one-time right to an extension and Developer provides notice to the City
as specific in Section 5(a)), to cure this Event of Default. The City shall
not be required to provide a Default Notice to trigger the cure period
herein.
b) If Developer shall fail to observe or perform any other term, covenant or
condition of this Agreement on Developer's part to be observed or
performed and Developer shall fail to cure or remedy the same within (i)
thirty(30) days of Developer's receipt of written notice from the City with
respect to monetary defaults, or (ii) sixty (60) days of Developer's receipt
of written notice from the City with respect to non-monetary defaults
(each, a "Default Notice"). If such non-monetary default is susceptible
to cure but cannot reasonably be cured within such sixty (60) day period,
then Developer shall have such additional time, not exceeding 180 days
from the date of the Default Notice, to cure such failure and no Event of
Default shall be deemed to exist hereunder so long as Developer
commences such cure within such initial sixty (60) day period and
diligently and in good faith pursues such cure to completion, and such
Event of Default is cured within 180 days from the date of the Default
Notice. The City Manager may extend the period permitted to cure the
Event of Default in thirty (30) day increments if Developer is diligently
and in good faith pursuing such cure.This notice and cure provision shall
not apply to obligations set forth in Section 5.
c) If Developer shall make an assignment for the benefit of creditors; or
shall admit in writing its inability to pay its debts generally as they
become due; or shall consent in writing to the appointment of a receiver
or trustee or liquidator of all or substantially all of its property; or if all
or substantially all of the assets of Developer are attached, seized,
subjected to a writ or distress warrant, or are levied upon, and the same
is not dismissed, discharged or satisfied within one hundred fifty (150)
days after such attachment, seizure, subjection or levy occurs.
d) If Developer shall commence a voluntary case under the Title 11 of the
United States Code (the "Bankruptcy Code"); or an involuntary
32
proceeding is commenced against Developer under the Bankruptcy
Code and the same is not dismissed or stayed within one hundred fifty
(150) days after the commencement of the case; or a custodian (as
defined in the Bankruptcy Code) is appointed for or takes charge of all
or substantially all of the property of Developer in any proceeding under
the Bankruptcy Code and such custodian is not discharged or dismissed
within one hundred fifty(150) days after such appointment;or Developer
consents in writing or joins in an appfication for the appointment of a
custodian in any proceeding under the Bankruptcy Code; or Developer
commences any other proceedings under any reorganization,
arrangement, readjustment of debt, relief of debtors, dissolution,
insolvency or liquidation or similar law of any jurisdiction whether now
or hereafter in effect (an "Other Insolvency Proceeding") relating to
Developer; or there is commenced against Developer any such Other
Insolvency Proceeding and the same is not dismissed or stayed within
one hundred fifty (1 SO) days; or a custodian, trustee or person of similar
capacity is appointed for or takes charge of all or substantially all of the
property of Developer in any such Other Insolvency Proceeding and such
custodian, trustee or person of similar capacity is not discharged or
dismissed within one hundred fifty (150) days after such appointment;
or Developer consents in writing or joins in an application for the
appointment of a custodian, trustee or person of similar capacity in any
such Other Insolvency Proceeding.
In the event the City shall claim any Event of Default shall have occurred under this
Agreement, the City's Default Notice shall state with specificity the provisions of this
Agreement under which the Event of Default is claimed, the nature and character of such
Event of Defautt, the date by which such Event of Default must be cured pursuant to this
Agreement (if applicable), and, if elected by the City, that the failure of Develope� to cure
such Event of Default by the date set forth in such Default Notice will result in the City
having the right to terminate this Agreement.
28 Enforcement of Performance; Damaaes: and Termination. If an Event of
Default occurs under this Agreement, and such Event of Default has not been cured within
any applicable notice and cure period, the City may elect (subject to the terms, conditions
and limitations set forth in this Agreement} any one or more of the following remedies:
33
a) Enforce strict performance by Developer, provided, if Developer is legally
unable to acquire title to the Hostel, then strict performance shall not be
available as a remedy in respect of a Hostel Acquisition Failure;
b) Terminate this Agreement;, provided that the City shall have delivered a
copy of the City's Default Notice to any lender providing financing with
respect to the Project that has provided the City written notice of its
name and address, and the City shall not terminate this Agreement if
such lender is diligently prosecuting cure of any curable Event of Defauit,
or with respect to Events of Default that are not susceptible to cure by
such lender (e.g., bankruptcy with respect to the Developer) or that are
not susceptible to cure without possession of or title to the applicable
property, or ownership of Developer (directly or indirectly), such lender
is diligently prosecuting enforcement proceedings to obtain possession
or title, and after obtaining possession and title diligently proceeds to
prosecute cure of those Events of Default that are susceptible to cure; or
c) Pursue any other remedy available to the City at law or in equity, subject
to the limitation on specific performance in respect of a Hostel
Acquisition Failure as described in subparagraph (a), above.
The City's election of a remedy under this Agreement 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 under this Agreement with respect to any other Event of
Default.
In the event the City elects to terminate this Agreement after the occurrence of an
Event of Default that was not cured within any applicable notice and cure period, and such
termination is stayed by order of any court having jurisdiction of any matter relating to
this Agreement, or by any federal or state statute, then following the expiration of any
such stay, the City shall have the right, at its election, to terminate this Agreement with
five (5) Business Days' written notice to Developer, Developer as debtor in possession, or
if a trustee has been appointed, to such trustee.
Notwithstanding anything to the contrary contained in this Agreement, in no event
whatsoever shall Developer be liable to the City or any other person for any indirect,
special, incidental, consequential, punitive, economic damages (including, without
limitation, diminution of property value) lost profits or similar damages, whether or not
34
foreseeable or advised of the possibility of the same, in connection with, arising from or
as a result of any Event of Default by Developer under this Agreement.
Notwithstanding anything to the contrary contained in this Agreement, in no event
shall the City have the right to terminate this Agreement after Developer has conveyed
the Hostel Site to the City in accordance with the terms of this Agreement, unless the
Event of Default is a "Material Event of Default" (as more specifically defined below). The
term "Material Event of Default" means (i) Developer's breach of any term or provision
contained in Seetion 35 (Transfer and Assignment) of this Agreement and such breach is
not cured within the notice and cure period set forth in subsection [22(a)] of this
Agreement; and (ii) failure to comply with the indemnification obligations pursuant to
Sections 37 and 38 of this Agreement and such failure is not cured within the notice and
cure period set forth in subsection [22(a)] of this Agreement.
The City hereby acknowledges and agrees that, from and after the date upon which
the Developer has conveyed the Hostel Site to the City in accordance with the terms of
this Agreement, the City's sole and exclusive remedy for any Event of Default by
Developer under this Agreement that is not a Material Event of Default shall be limited to
an action for damages and/or specific performance to the extent such remedies are
available and permitted to the City under this Agreement and applicable law.
29 Termination Outside of Default. In the event either party chooses to exercise
its right to terminate this Agreement under any of Sections [INSERT] this Agreement
(apart from the City's right to terminate under Section 25 [?] of this Agreement as a result
of an Event of Default by Developer), each party shall bear its own fees, costs and expenses
incurred in connection with this Agreement, the Private Project and the Public Projects,
and neither party shall have or owe any further obligation or liability to the other party.
30 Strict Performance;Waiver. No failure by the City or Developer to insist upon
strict performance of any covenant, agreement, term or condition of this Agreement or
to exercise any right or remedy available to such party by reason of the other party's
default hereunder shall constitute a waiver of any such default or of such other covenant,
agreement, term or condition hereunder.
31 Notices. All notices required or permitted to be given under this Agreement
shall be in writing and shall be deemed to have been given if delivered by hand, sent by
recognized overnight courier (such as Federal Express) or mailed by certified or registered
mail, return receipt requested, in a postage prepaid envelope, and addressed as follows:
35
If to the City at: City af Miami Beach, City Hall
1700 Convention Center Drive
Miami Beach, Florida 33139
Attn: City Manager
With a copy to: City af Miami Beach, City Hall
1700 Convention Center Drive
Miami Beach, Florida 33139
Attn: City Attorney
If to Developer at: 1250 WEST AVE OWNER LLC
c/o JDS Development, LLC
120 NE 27 Street, Suite 200
Miami, FL 33137
Attn. Michael Stern and Serena Rakhlin
With a copy to: Bercow Radell Fernandez & larkin
200 S. Biscayne Boulevard
Miami, Florida 33131
Attn: Michael W. Larkin and Melissa Tapanes
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 expiration or earlier termination of this Agreement.
[INTENTIONALLY OMITTED WITHOUT IMPLICATION.�
32 Governing Laws, Construction and Liti ation. This Agreement shall be
governed a�d construed in accordance with the laws of the State of Florida, both
substantive and remedial, without regard to principles of conflict of laws. Developer and
the City agree that Miami-Dade County, Florida is the appropriate and exclusive state
court venue,and that the U.S. District Court, Southern Division of Florida is the appropriate
and exclusive federal court venue, in connection with any litigation between the parties
with respect to this Agreement. All of the parties to this Agreement have participated fully
in the negotiation and preparation hereof; and accordingly, this Agreement shall not be
more strictly construed against any of the parties hereto. In construing this Agreement,
captions, and section and paragraph headings shall be disregarded and the use of any
gender shall include every other and all genders. All of the exhibits referenced in this
36
Agreement are incorporated in, and made a part of, this Agreement. In the event of any
litigation between the parties under this Agreement for a breach thereof, the prevailing
party shall be entitled to reasonable attorney's fees and court costs at all trial and
appeilate levels. BY ENTERING INTO THIS AGREEMENT, THE CITY AND DEVELOPER
EXPRESSLY WAIVE ANY RIGHTS EITHER MAY HAVE TO A TRIAL BY 1URY WITH RESPECT
TO ANY CIVIL LITIGATION RELATED TO, OR ARISING OUT OF, THIS AGREEMENT. The
terms of this Section shall survive the expiration or earlier termination of this Agreement.
33 Severabilitv. In the event any term or provision of this Agreement be
determined by appropriate judicial authority to be illegal or otherwise invalid, such
provision shall be given its nearest legal meaning or construed as deleted as such
authority determines, and the remainder of this Agreement shall be construed to be in
full force and effect.
34 Time of Essence. Time shall be of the essence for each and every provision
hereof.
35 Entire Aareement. 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.
36 Other Agreements. This Agreement has no effect on any other agreement,
the City's development orders, or declaration of restrietions 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.
37 Binding Effect. The obligations imposed pursuant to this Agreement upon
Developer and upon the Property shall run with and bind the Property as covenants
running with the Property, and this Agreement shall be binding upon and enforceable by
and against the parties hereto and their respective successors, assigns and heirs.
38 Transfer and Assignment. Developer shall not be entitled to assign or
transfer this Agreement or any of the rights and obligations hereunder prior to the later
of a) the date of Closing; b) completion of the Baywalk Improvements; or c) making of the
37
Baywalk Payment, if applicable, without the prior written consent of the City (which
consent may be withheld, conditioned or delayed in the sole and absolute discretion of
the City), except as hereinafter provided. Developer shall have the right at any time and
from time to time to sell, transfer and convey all or any portion of the Development
Property to any person or entity (a "Subsequent Owner") and assign and transfer this
Agreement and the rights and obligations hereunder in whole or in part to any
Subsequent Owner in connection with such sale, transfer or conveyance of the Property
or any portion thereof without the prior consent or approval of the City, provided that a
"Stern Entity" (as more specifically defined below) shall at all times (a) hold, directly or
indirectly, not less than a 10% ownership interest in the Development Property, (b) serve,
directly or indirectly, as a manager of the entity/entities that is/are developing the Private
Project and the Public Projects, and (c) exercise, directly or indirectly, day-to-day
operational control of the entity as the manager of the entity/entities that is/are
developing the Private Project and the Public Projects; provided, further, that this
Agreement and the rights and obligations hereunder can be assigned and transferred at
any time and from time to time to any lender, lender designee or non-lender affiliated
purchaser (any of the foregoing being referred to herein as a "Foreclosure Purchaser")
who acquires the Development Property or any portion thereof through a foreclosure sale
or deed-in-lieu of foreclosure without the prior consent or approval of the City. Direct and
indirect owners of Developer shall also be entitled at any time and from time to time to
pledge their direct and indirect ownership interests in Developer to one or more lenders,
and any such lender, its designee and a non-lender affiliated purchaser (any of the
foregoing being referred to herein as a "Meuanine Forec_I_osure Purchase�") shall be
permitted to acquire all or any portion of the direct and/or indirect ownership interests in
Developer through foreclosure of any such pledge or acceptance of an assignment-in-
lieu of foreclosure, and/or to exercise control over Developer (directly or indirectly),
without the prior consent or approval of the City.
This Section 38 and the restrictions, limitations and prohibitions contained herein shall
automatically terminate, extinguish and be of no further force or effect immediately upon
the earlier of the following events to oecur (x) the later of the date of Closing or
completion of the Baywalk Improvements or making of the Baywalk Payment, if
applicable, (y) the acquisition of the Development Property or any portion thereof by any
Foreclosure Purchaser through a foreclosure sale or deed-in-lieu of foreclosure or (z) the
acquisition of all or any portion of the direct and/or indirect ownership interests in
Developer by any Mezzanine Foreclosure Purchaser through foreclosure of any such
pledge or acceptance of an assignment-in-lieu of foreclosure; whereupon, Developer, any
Subsequent Owner and/or any Foreclosure Purchaser and/or any Mezzanine Foreclosure
38
Purchaser shall have the absolute and unconditional right to sell, transfer and convey all
or any portion of the Development Property to any person or entity and to assign and
transfer this Agreement and the rights and obligations hereunder in whole or in part to
any person or entity in connection with such sale, transfer or conveyance of the Property
or any portion thereof without the prior consent or approval of the City whether or not a
Stern Entity (aa) holds, directly or indirectly, any ownership interest in the Development
Property, (bb) serves, directly or indirectly, as a manager of the entity/entities that is/are
developing the Project and the Hostel Project, or (c) exercises, directly or indirectly, day-
to-day operational control of the entity as the manager of the entity/entities that is/are
developing the Project or the Hostel Project. Any assignee or transferee (including, any
Subsequent Owner or Foreclosure Purchaser) shall assume all remaining obligations of
Developer under this Agreement at the time of such assignment or transfer of this
Agreement. For purposes of this Section 38, the term "Stern Enti " shall mean: (ww)
Michael Stern; (xx) any spouse, child, grandchild, brother, sister, niece, nephew or first
cousin of Michael Stern, or of any combination of the foregoing; (yy) any trust established
for the benefit of Michael Stern, or any spouse, child, grandchild, brother, sister, niece,
nephew or first cousin of Michael Stern, or of any combination of the foregoing; and/or
(zz� any entity owned, directly or indirectly, one hundred percent (100%j by Michael Stern,
or any spouse, child, grandchild, brother, sister, niece, nephew or first cousin of Michael
Stern, or any trust established for the benefit of Michael Stern, or any spouse, child,
grandchild, brother, sister, niece, nephew or first cousin of Michael Stern, or of any
combination of the foregoing.
39 Force Majeure and Third-Party Challenges. All time periods and deadlines
set forth in this Agreement and in any approval or permit issued in connection with the
Project will be tolled due to force majeure events (including, without limitation, strikes,
lockouts, acts of God, pandemics, hurricanes and severe weather, and other causes
beyond the control of either party), and due to delays in obtaining permits and approvals
from governmental agencies, during the pendency of any "Lawsuit" (as hereinafter
defined) and any unexpired appeal period thereof. For the avoidance of doubt, (a) any
tolling of time periods pursuant to Section 252.363, Florida Statutes, shall apply only to
the expiration date of this Agreement, but not to any other time periods set forth herein,
except for any period during which Developer is unable to complete any work or take any
action due to the force majeure or other event triggering the declaration of a state of
emergency and (b) with respect to any other force majeure event or Lawsuit, time periods
and deadlines in this Agreement shall similarly be tolled only during such period as
Developer is unable to complete any work or take any action due to such other force
majeure event or Lawsuit. In the event that a third party unrelated to or unaffiliated with
39
the City or Developer institutes any action, suit or proceeding against the City relating to
the Private Project or any Public Project, including, without limitation, any action, suit or
proceeding challenging the validity or issuance of this Agreement, Private Project
Approvals (including, without limitation, the Legislative Approvals), or any permit issued
by the City or other agency (in each instance, including any related appeals, a "Lawsuit"),
then Developer shall defend the City in any such Lawsuit at its sole cost and expense using
legal counsel reasonably acceptable to the City. Developer shall further indemnify and
hold the City harmless from and against all actual damages, losses, liabilities, fees, cost
and expense (including attorneys' fees, costs and expenses) of any and every kind arising
out of or relating to any such Lawsuit. This Section shall survive the expiration or any
earlier termination of this Agreement.
40 Indemnification of City.
a) To the fullest extent permitted by law, and without limiting any other
indemnity obligations of Developer set forth elsewhere in this
Agreement, Developer hereby agrees to defend, indemnify and hold
harmless the City and its former, current and future elected officials,
directors, attorneys, appointed officials, administrators, consultants,
agents, and employees (collectively, "City Indemnified Parties") from
and against all claims, damages, losses, and expenses, direct or indirect,
(including but not limited to fees and charges of attorneys and other
professionals and court and mediation costs) arising out of or resulting
from (i) the City's adoption of any resolution or ordinance or the taking
of any other action relating to this Agreement, the Private Project or the
Public Projects, (ii) the City's granting of permission for any activity
performed under the terms of this Agreement and (iii) the construction
and/or maintenance of the Private Project or the Public Projects
(including all easements) and caused, in whole or in part, by any willful,
reckless, or negligent act and/or omission of Developer or any person,
employee, agent, or third party acting on Developer's behalf (incl�ding
any contractor, subcontractor, or any person or organization directly or
indirectly employed by any of them or anyone for whose acts any of
them may be liable) (collectively "Losses"). The foregoing indemnity
provision includes, subject to the sovereign immunity monetary
limitation described below, if applicable, Developer's agreement to fully
indemnify the City Indemnified Parties from any �osses alleged to have
been caused, in whole or in part, by the negligent acts or omissions of
40
the City or any person, employee, agent, or third party acting on City's
behalf (including any contractor, subcontractor, or any person or
organization directly or indirectly employed by any of them or anyone
for whose acts any of them may be liable) (collectively "City_Agents"),
other than any willful, reckless, or grossly negligent act or omission of
City or any other City Agent ("_Excluded Act"). In the event that any City
Agent is determined to be solely responsible for causing damage, loss
or injury to a third party for any Excluded Act, Developer shall not be
obligated to defend, indemnify or hold any City Indemnified Parties
harmless. If both Developer and any City Agent are determined to be
jointly liable for Losses for such a willful, reckless or grossly negligent act
or omission, Developer shall pay its share of the Losses, and, in addition,
shall indemnify the City Indemnified Parties to the maximum amount to
which the City Indemnified Parties are liable after application of the
"sovereign immunity" limitation on damages provided by Section
768.28, Florida Statutes.
b) In any and all claims against the City or any of its consultants, agents, or
employees by any employee of Developer or any employee of any
person, employee, agent, or third party acting on Developer's behalf
(including contractors, subcontractors, or any person or organization
directly or indirectly employed by any of them or anyone for whose acts
any of them may be liable), the indemnification obligation of this section
shall not be limited in any way by any limitation on the amount or type
of damages, compensation, or benefits payable by or for Developer or
by or for any person, employee, agent, or third party acting on
Developer's behalf (including contractors, subcontractors, or other
persons or organizations directly or indirectly employed by any of them
or anyone for whose acts any of them may be liable) under workers' or
workman's compensation acts, disability benefit acts, other employee
benefit acts or any other service of law.
This indemnification provision shall survive the termination of any City permit and
this Agreement, however terminated.
41 Cor�orate Oblig,ations. 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,
41
directors, managers, members, partners, trustees, beneficiaries, elected or appointed
officials (including, without limitation, the Mayor and City Commissioner of the City) or
employees , as such, of Developer, the City, or any successor or assign of any of them,
under or by reason of the obligations, covenants or agreements contained in this
Agreement or implied therefrom; and that any and ali such personal liability, either at
common law or in equity or by constitution or statute, of, and any of all such rights and
claims against, every such incorporators, stockholders, officers, directors, managers,
members, partners, trustees, beneficiaries, elected or appointed officials (including,
without limitation, the Mayor and City Commissioner of the City) or employees, as such,
or under or by reason of the obligations, covenants or agreements contained in this
Agreement or implied therefrom are expressly waived and released as a condition of, and
as cansideration for, the execution of this Agreement.
42 No Conflict of Interest. Developer represents and warrants that no member,
official or employee of the City has any direct or indirect financial interest in this
Agreement nor has partic+pated in any decision relating to this Agreement that is
prohibited by law. Developer represents and warrants that no officer, agent, employee, or
representative of the City has received any payment or other consideration for the making
of this Agreernent, directly or indirectfy, from Developer.
43 No Third Party Beneficiaries. This Agreement is not intended to, and shall
not be construed to give, any third party (including, without limitation, any homeowners'
association, condominium association, or neighborhood association in the surrounding
area, or any individual members thereofl any rights or interests whatsoever, nor is it
intended that any third party shall be a third party beneficiary of any provisions hereof.
44 Limitations_of Liability and Waiver of Consec�uential_DamaQes.
a) Any tort liability to which the City is exposed under this Agreement shall
be limited to the extent permitted by applicable law and subject to the
provisions and monetary limitations of Section 768.28, Florida Statutes,
as may be amended, which statutory limitations shall be applied as if the
parties had not entered into this Agreement, and City expressly daes not
waive any of its rights and immunities thereunder.
b) The City will not in any event whatsoever be liable for any injury or
damage to Developer (unless caused by the gross negligence or willful
misconduct of the City, its agents, contractors or employees), nor for any
injury or damage to the Development Property (unless caused by the
42
gross negligence or wilifui misconduct of the City, its agents, contractors
or employees).
c) The City will not be liable to Developer for any injury or damage to the
Development Property caused by or resulting from gasoline, oil, steam,
gas, electricity, or hurricane, tornado, flood, wind or similar storms or
disturbances, or water, rain or snow which may leak or flow from any
part of the Development Property, or leakage of gasoline or oil from
pipes, appliances, sewer or plumbing works therein (unless caused by
the gross negligence or willful misconduct of the City, its agents,
contractors or employees).
d) Except as may be otherwise expressly provided herein, no approval to
be made by the City in its proprietary capacity under this Agreement or
any inspection of the Project or Park Project by the City under this
Agreement, shall render the City liable for its failure to discover any
defects or nonconformance with any governmental requirement.
e) No member, official, elected representative or employee of the �ity shall
be personally liable to Developer or any successor, assign or heir thereof
in the event of any default or breach of this Agreement by the City or for
any amount which may become due to Developer or successor, assign
or heir thereof under this Agreement.
45 Police Power.
a) The parties recognize and agree that certain provisions of this
Agreement require the City and its boards, departments or
agencies, acting in their governmental capacity, to consider
governmental actions. All such considerations and actions shall
be undertaken in accordance with established requirements of
state statutes and municipal ordinances in the exercise of the
City's jurisdiction under the police power. Nothing contained in
this Agreement shall entitle Developer to compel the City to take
any such actions, save and except for the execution of consents
(if applicable) to the filing of applications for the Private Project
Approvals, the Baywalk Project Approvals, Development Permits
and/or Development Orders as more fully set forth herein and to
timely process such applications.
43
b) The parties further recognize and agree that these proceedings
shall be conducted openly, fully, freely and fairiy in full
accordance with law and with both procedural and substantive
due process to be accorded the applicant and any member of the
public. Nothing in this Agreement shall be construed to prohibit
the City from duly acting under its police power to approve,
approve with conditions, or reject any public hearing application
dealing with the Development Property, the Hostel Site or the
Baywalk Segments
[SIGNATURE PAGES FOLLOWJ
44
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 �'���,8.�:;�;., CITY OF MIAMI BEACH, _
:���� ti�-;
in the presence of: a Florida m nicipal corpo a�ion
�� �
sIM�OA!�OAAfED� �
�'•�, 3� ,Q'--' gy: ('L'�_
.,rr�"'2h"1_=
(� Name:Steven Meiner, Mayor
By: �; �,.^l T-t i<��-
► ^ _ ,n.,,.
Print Name:�a vu�ra � "�`; '� � �' �
�;.r e�Z- Attest: _____
Rafael Granado, City Clerk
Address:
f �c��c:���t��ckD: ��"f���, .�.
� fx`
� Fz �� >>
By:
�
APPROVED AS TO
Prin Name: v�U/U r d , FORM & LANGUAGE
&FOR EXECUTION
Address: 3/',,1�'�� �5���, �� �� � 20?S
�c�ty Attomey �or
STATE OF FLORIDA )
)SS
COUNTY OF MIAMI-DADE ) �
The foregoing instrument was acknowledged before me by means of Cf physical
presence or O online notarization, this �� day of �y,�(',��;�T
2025 by Steven Meiner, as Mayor of the City of Miami Beach, a municipal corporation,
on behalf of the Corporation. He is personally known to me or has produced
as identification and who did (did not� take an oath.
%y��UU�t�T��
;�^�;�,.
� NOTARY PUBUC
;;�f•'"'••.F-. STEYEN N.ROTHSTEIN � � " �j
'r A1Y COFAMISS{ON t HM S1'1018 �.����„�V R ����
'�7��' EXPIRES�August 2/.21g — —
Typed or Pr�nted Name of Notary
My Commission expires:
Serial No., if any:
45
West Hospitality Owner LLC, a
Delaware Limited Liability Company
Signed, sealed, delivered
in the presence of:
By: _
By: -__ _
Print Name: Michael Stern
Authorized Si�natory
Print Name:
Address: Address^__ __J
By:
Print Name:
Address:
STATE OF FLORIDA )
) SS:
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me by means of ❑ physical
presence or ❑ online notarization, this _ day of , 2025 Michael 5tern, as a
ManaQer of West Hos�itality Owner LLC, a �lorida limited liability company, on behalf of
the company. He is personally known to me or has produced
as identification and who did/did not take an oath.
NOTARY PUBIIC
Typed or printed Name of Notary
My Commission expires:
Serial No., if any
46
1250 West Ave Owner LLC, a Delaware
Limited Liability Company
Signed, sealed, delivered
in the presence of:
By:
gy: __ Print Name: Michael Stern __
Authorized Signat�_,
Print Name: — Address:
Address:
Sy: - -
Print Name:
Address:
STATE OF FLORIDA )
) SS:
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me by means of❑ physical presence
or O online notarization, this ^day of , 2025 by Michael Stern, as a Mana er of
1250 West_Ave_Owner_ LLC, a Florida limfted liability company, on behalf of the company. He fs
personally known to me or has produced as identification and
who did/did not take an oath.
NOTARY PUBLIC
Typed or printed Name of Notary
My Commission expires:
Serial No., if any
47
TABLE OF EXHIBIT5
EXHIBIT "A" - LEGAL DESCRIPTION OF DEVELOPMENT PROPERTY
EXHIBIT "B" - LEGAL DESCRIPTION OF HOSTEL SITE
EXHIBIT "C" - FORM OF RESTRICTIVE COVENANT
EXHIBIT "D" - BAYWALK MATERIALS AND SPECIFICATIONS- MINIMUM REQUIREMENTS
EXHIBIT "E" - BAYWALK CONVEYANCE DEL{VERABLES
EXHIBIT "F" - DECLARATiON OF USE FOR HOSTEL SiTE
EXHIBIT "G" - PARK CLOSING DELIVERABLES
EXHIBIT "H" - DESCRIPTION QF PUBLIC FACILITIES
EXHIBIT "I"- DESCRIPTION OF PUBLIC RESERVATIONS
EXHIBIT "J" - DESCRIPTION OF REQUIRED DEVELOPMENT PERMITS FOR PROJECT
48
EXHIBIT "A" - LEGAL DESCRIPTION OF DEVELOPMENT PROPERTY
Lot 3, Block 80 of the Subdivision of Block Eighty, a part of the Alton Beach Bay Front
Subdivision, recorded in Plat Book 6, Page 12 of the Public Records of Miami-Dade
County.
EXHIBIT "6" - LEGAL DESCRIPTION OF HOSTEL PROPERTY
1247 Nest A�e.1liami Beach, N'lorida 33134(F'olio: 02-3233-01fi-0110):
Lot 9,in Bluck 82,ot BAY V1�W SItBDIVISION,accordisx to the Plat t6erec►f recordcd in
Plst Book 9,Pa�e I 10.of t6e Public Records of Miami-Dade('ountv,F lorida.
FolioN:02-3233-015-0110
1255 �t'est Ave,:�liami Beach, Florida 33[39(Fulio: 02-3233-1)18-11090):
LOT 8, LESS THE EAST 62.5 FEET, BLOCK 82, BAY VIEW SUBDIVISION. ACCORDING TO
THE PLAT THEREOF, AS RECORDEO IN PLAT BOOK 9, PAGE 110, OF THE PUBLIC
RECORDS OF MIAMI-DADE COUNTY, FLORIDA, a/k/a 1255 West Avenue. Miami Beach.
Fbrida 33139.
123�t 13'"St., �tiami Beach, Florida 33139(Folio: 02-3233-018-0]00):
The East 62.5 feet of Lot 8, Block 82, BAY VIEW SUBDIVISION, according to the Plat
thereof, as recorded in Plat Book 9, Page 110, of the Public Records of MiamHDade CouMy,
Fbrida, a/k/a 1234 13 Street, Miami Beach, Florida 33139.
EXHIBIT "C" - FORM OF RESTRICTIVE COVENANT
Exhibit C
This instrument prepared by,and after recording return to:
tiame: �lichael Larkin, Esq.
Bercow Radell Femandez Larkin&Tapanes, PLLC`
Address:200 S. Biscayne Bivd.,Suite 300
�liami,FL 33131
Folio tiumbers:02-3233-018-0110,
02-3233-018-OIOO,Q2-3233-018-0090
(Space reserved for Clerk of Court}
DECLARATIOti OF RESTRICTIVE CO�'ENANT
THIS DECLARATION OF l;se ("Declaration"), is made this day of
, 202_ by West Avenue Hosvitalitv Owner LLC, a Detaw�are Limited
Liability Company, in favor of the City of Miami Beach ("City").
WITNESSETH:
WHEREAS, West Avenue Hospitality Owner LLC (the"Developer") holds fee simple title
to the Property located at 1247 — 1 Z55 West Avenue and 1234 13 Street in '.Vliami Beach, Florida;
legally described in Exhibit A,attached hereto and incorporated herein(the"Property�');and
WHEREAS, the Developer has entered into a Development Agreement with the City of
Miami Beach, Florida (the "City"'), under which the Developer has agreed to voluntarily prohibit
the following uses on the Property: (i) transient uses of any kind, (ii) any alcoholic beverage
establishments, and (iii) the lease or rental of any residential unit for periods of less than six (6)
months and one(1)day.
NOW, THEREFORE, the Developer voluntarily covenants and agrees that the Property
shall be subject to the following resMctions that are intended and shail be deemed to be covenants
running with the land and binding upon the Developer of the Property, and its successors in interest
and assigns, as follows:
1.The recitals and findings set forth in the preamble of this Dec;laratian are hereby
adopted by reference thereto and incorporated herein as if fully set forth in this Sectian.
2. The Property shall not be developed or used as (i) a transient use of any kind
including, without limitation, a hotel, hostel, bed and breakfast inn, apartment hotel, suite
hotel, or sooming house, or (ii) any type oE alcohotic beverage establishment. In addition,
Dec;laration of Restrictive Covenants
1247-12�5 West Avenue and 1234 13 Street
Miami Beach, Florida
Page 2 of 6
(iii) no residential unit located on the Property shalI be leased or rented for a period of less
than six(6) months and one(I)day.
3. This voluntary Declaration shall remain in full force and effect and shall be
binding upon the Develaper of the Property,and its successors in interest and assigns for an
initial periad of thirty (30} years from [he date this instrument is recorded in the public
records, and shall be automatically extended for successive periods of ten (10) years each,
unless modified, amended ar released pnor ta the expiration thereof.
4.This Declaratian may be modified, amended or released as to any portion of the
Property by a written instrument executed by the Developer or the then-owner(s) of the fee
simple title to the (and to be affected by such modification, amendment or release praviding
that same has been approved by the City Commission, at a public hearing, which public
hearing shall be applied for by and at the expense of the Developer or the owner(s). An
affirmative vote of six-sevenths of all members of the City Commission shall be required in
order to release this Declaration or to modify the Declaration in such a manner as to impose
a less stringent restrictian. Should this instrument be so modified, amended or released, the
City Manager,the City Manager's successor,or other administrative officer with jurisdiction
over the matter, shall execute a written instrument in recordable form effectuating and
acknowledging such modification,amendment ar release.
S.It is possible that the Developer may, in the future, convert the Property to a
condominium form af ownership. If sa, the condominium association(s) formed may
execute any instrument of amendment, madification, termination, consent or change to this
Declaration that requires the written agreement of the parties hereta. Such instn.iment shall
not require the signature or joinder of any individual condominium unit owners or their
mortgagees.
6.Invalidation of any provision of this Declaration by judgment of Court shall not
affect any of the other provisions of this Declaration, which shall remain in full force and
effect.
7.This Declaration shall be recacded in the Public Records of Miami-Dade County,
Florida,at the cost of the Developer.
8.It is understoad and agreed that any official of the City of Miami Beach has the
nght at any time dunng normal business hours of entering and investigating the use of the
Declaration of Restrictive Covenants
1247-1255 V4`est Avenue and 1234 13 Street
Miami Beach, Florida
Page 3 of 6
Property, to determine whether the conditions of this Declaration and the requirements of
the City's building,zoning and land dev�lopment regulatians are being complied with.
9.An action to enforce the terms and conditions of this Declaration may be brought
by the City and may be, at law or in equity, against any party or person violating or
attempting to violate any provision of this Dectaration or provisions of the building, zoning
or land development regulations, either to restrain violations or to recover damages. The
prevailing party in the action shall be entitled to recover costs and reasonable attomeys'
fees, at all levels of trial and appeal. This enforcement provision shall be in addition to any
other remedies available under the law.
[REMAINDER OF PAGE LEFT tNTENTIONALLY BLANK—
SiGNATURE PAGES TO FOLLOW]
Declaration of Restrictive Covenants
1247-1255 West Avenue and 1234 13 Street
Miami Beach, Ftorida
Page 4 of 6
lN WITNESS WHfREOF, West Hospitality Owner LLC, a Delaware limited liability company,
has caused these presents to be signed in its name by its proper officials.
West Avenue Hospitaiity Owner LLC
a Deiaware Limited Liability Company
By:
WITNESSES:
Signature: _____ Print tiame:
Signature: Print tiame:
Address: Address:
STATE OF
COLTITY OF
The foregoing instrument was acknowledged before me by , on behalf of
West Hosp.itality Owner LLC, by means [ ]�hysical presence or_[ ] online notarization, sworn to
(or affirmed) and subscribed before me, this day of ,2025
Witness my signature and official seal this day of � , 2025, in
the County and State aforesaid.
Notary
[NOTARIAL SEAL] Print Name:
Notary Public, State of
My commission expires:
Declaration of Restrictive Covenants
1247-1255 West Avenue and 1234 13 Street
Miami Beach, Florida
Page 5 of 6
Approved:
Thomas Mooney, Planning Director Date
APPROVED AS TO FQRM
AND LANGUAGE FOR EXECUTI�N
Nick Kallergis, Chief Deputy City Attorney Date:
Exhibit C
Exhibit".4"
1247 Nest.��e.Nismi Besch, Florida 33t39(F'olio: 02•3233-018-0110):
l,nt 9,in Bk>ck 82,of BAY V(EW S[tgplViSlON,accordinR to the Plst tbera►f r+ecorded ia
Plst f3�wk 9,Pa�c 110,of the Pubiic Records af Mia�oi-Drde('ounry,E'brida.
FoliaN:02-32.i.t-01 tW 110
]255��'est A�e.:�iiami Beuch,E'lurida 33139(Folio:02-3233-0t�i-0090):
LC3T 8, LESS TNE EAST 62_5 FEET, 6LOCK 82, BAY VIEW SUBQN{SIUN, ACCORDING TO
TFiE PLAT THEREOF, AS REGORDEO IN PLAT BC?OK 9, PAGE 110, OF THE PUBIIC
RECOROS OF MIAMI-DADE COUNTY, FLQRlDA, a/Wa 1255 West Avenue. Miami Beach.
Fbrida 33139.
1234 13id St..�iiami Beach, F'lorida 33119(H'olio: 02-3233-018-010t}};
_ _ _ _ __
The East 62.5 feet of Lot 8, Block 82, BAY YiEW SUBDIYISiON, according to the Plat
tl►ereof, as recorded in Plat @ook 9, Page 110, nf the Public Records of Miami-Dade CouMy,
Fbrida, a/k/a 1234 13 Street, Miami Beach, Flarida 33139.
EXHIBIT "D"— BAYWALK MATERIAIS AND SPECIFICATIONS— MINIMUM
REQUIREMENTS
The Developer shall obtain all necessary permits, design and construct 15 foot-wide
over water Baywaik structures west of 800 and 1228 West Avenue and 1450 Lincoln
Road. The conceptual drawings depict an approximate layout and typical section of the
over water Baywalk segments. The conceptual typical section is similar to the 12.5' wide
concrete/wood deck typical section of the South Pointe Park Pier Project, and the
Baywalk segment currently under construction west of Mondrian Hotel/Mirador
Condominiums (1000-1200 West Avenue}, with the exception that the width of the
proposed decks shail be 15' instead of 12.5' or 10.0' respectivefy, A1so, the elevation of
the over water Baywalk deck shall be a minimum of 5.7' NAVD, matching minimum
seawall height requirements, but in no case less than 5.1' NAVD (subject to the City
Manager's approval). The elevation of the new Baywalk segment behind the
Mondrian/Mirador property is below the top elevation of the minimum seawall
elevation, and is constructed at 5.5' NAVD. New segments of the Baywalk shall be
designed and constructed to provide proper transition at all public connection points, in
compliance with ADA requirements, as needed.
Baywa{k segments shafl include upland improvements at street end connections to
provide ADA compliant access to/from the street end, where applicable, including but
not limited to ramps, walkways, railings and fighting.
Pedestrian lighting shall be provided for the limits of this project. The illumination
design parameters will be in accordance with IENSA-RP-8-14 with a minimum of 0.6
foot-candles and a uniformity ratio (avg/min) of 4:1 foot-candles Each circuit shall have
a minimum of 2" PVC conduit for the electric wires required to power the proposed
lighting, and each fixture shall include individual, in-line fuses. All
connections/connectors/terminations shall comply with City of Miami Beach Publit
Works lighting standards.
To maximize walking space within the Baywalk, the Developer shali instail the pedestrian
lighting as close as possible to the edge of the deck for the Baywalk deck, in line with or
as part of the proposed guardrails.
The proposed Baywalk segments shall be designed and constructed to allow for
repair/replacement of adjacent seawall/cap structures, including, where necessary, the
provision of removable Baywalk structures.
The City has standardized the design components of the proposed Baywalk segments,
to include, at a minimum, the follawing components:
1. 15' wide.
2. Concrete walkways with 5' minimum width of grating along the centerline, to
provide sunlight transmittance in furtherance of seagrass growth.
3. Top of walkway at 5.7' NAVD, but no less than 5.1' NAVD (min.).
4. Guardrails/Handrails along all open sides.
5. Lighting to be installed along length.
6. ADA ramps at all public entry points, as required.
7. Concrete Pylons and Beams for support.
8. Security gates at all public entry points.
9. Secure access to each upland property with associated transitions. Access control
to be interconnected with the property's existing security and access control
system as needed.
More specifically, each proposed segment will comply with access/easement
agreements, QRB orders or Planning Baard Orders, as may have been amended or
adjusted. Each upland property presents unique challenges and will require the
following considerations:
800 West Avenue (South Ba�r Clubl
• Transitions from overwater Baywalk to adjoining, landside Baywalk segments shall
occur within the limits of the South Bay Club property.
• Finger docks (9) and amenities must be relocated/reconstructed west of the
proposed baywalk.
• Secure access from Baywalk to upland property and relocated finger docks must
be provided.
• Aecess control to be tied into building's existing access control system.
• Parking spaces at north end of property, adjacent to proposed Baywalk, must be
preserved.
1228 West Avenue (Bayview Terrace
• Proposed Baywalk shall transition to 10' width and connect to existing over water
Baywalk west of Mondrian/Mirador property.
• Transition of proposed overwater Baywalk to new development at 1250 West
Avenue shall be designed to allow unimpeded access/use, including vertical and
horizontal transitions.
• Dock and amenities shall be relocated/reconstructed to replicate existing number
of boat slips.
• Final configuration of boat slips must match existing/permitted number of slips
• Secure access from Baywalk to upland property and relocated dock must be
provided.
• Access control to be tied into building's existing access control system.
1450 Lincoln Road (Lincoln Bay Towers�
• Comply with terms of existing Access and Easement Agreement.
� Commence north end of Baywalk at the north side of Lincoln Road right-of-way.
� Maintain, to the greatest extent possible, 20' clearance between proposed
Baywalk and the upland property's pool deck.
• South end of proposed Baywalk shall transition to overland Baywalk segment
within the limits of the Lincoln Bay Tower property.
• Provide connection to overland Baywalk segment west of Capri, in compliance
with Access and Easement Agreement.
• Provide transition/connection at south end of property, preserving parking
spaces.
• This property will nat require access from Baywalk to upland property.
• Provide remavable segments of Baywalk to allow for seawall maintenance and/or
replacement.
• Both transitions, at Lincoln Road and the south end of the Lincoln Bay Towers
p�operty, shall be ADA compliant.
• Transition at Lincoln Road will require ADA ramp, railings and walkways from
seawall cap to adjacent cul-de-sac sidewalk.
• Existing easement/access agreement will have to be amended to reflect proposed
layout.
EXHIBIT "E" - BAYWALK CONVEYANCE DELIVERAB�ES
��elooer Deliverables at Substantial Comoletion and Final Com�letion of the
Baywalk Proiects.
I. Deliverables at Substantial Com Ip etion:
(a) A temporary certificate of occupancy ("TCO") or temporary certificate of
completion ("TCC") has been duly issued by the applicable governmental
authority having jurisdiction and a copy thereof delivered to the City;
(b) Developer has applied to FDEP, DERM, USACE and City of Miami Beach
Building Department, or other authority having jurisdiction, for a final
inspection to close out the Permits and Approvals and evidence thereof
delivered to the City, which evidence shall be in form and substance
reasonably acceptable ta the City;
(c) All installation instructions, operations and maintenance manuals or
instructions for equipment furnished by Developer, catalogs, product
data sheets for all materials furnished by Developer and similar
information provided), in compliance with all applicable Requirements,
and without damage to the Work or to the Baywalk Project, as reasonably
determined by the City; and
(d) The most recent updated set of "as-built" drawings reflecting the
progress of the Work through Substantial Completion (in native file
format, such as autoCAD, as same may be modified by shop drawing or
other submittal) have been delivered to the City.
II. Substantial Completion Punch List. When Developer believes it has achieved Substantial
Completion, Developer shall have prepared a preliminary punch list for review and
approval by the City and the Architect/Engineer of Record, request an inspection by the
City and the Architect/Engineer of Record and deliver to the City evidence supporting its
assessment of Substantial Completion, including any specific documents or information
requested by the City in advance to assist in its evaluation thereof. Following the
inspection, Developer shall provide the City with the list of all remaining items of Work to
be completed or corrected for Final Completion, which list incorporates items and
comments identified or provided by the City and Architect/Engineer of Record
("Substantial Completion Punch List"); provided, however, that failure to include any items
on the Substantial Completion Punch List does not alter the responsibility of the Developer
to complete all Work in accordance with the Contract Documents.
III. Final Completion. As conditions of Final Completion, Developer shall deliver or cause to
be delivered to the City, as applicable:
�a) Substantial Completion of the Baywalk Project shall have occurred in
accardance herewith;
(b) Written notice from the Contractor that the Work is ready for final
inspeetion and acceptance;
(cj A final certificate of occupancy ("CO") or final certificate of completion
("CC"), as applicable, for the Work duly issued by the governmental
authority having jurisdiction thereof;
(d) Evidence of the closure of al� Perrnits and Approvals, as reasonably
approved by the City Manager;
(c� The Architect/Engineer of Record shall have delivered a certificate of final
completion (the "Certificate of Final Completion"), in form and substance
reasonably acceptable to the City, stating that on the basis of its
observations and inspections, the referenced Work for the Baywalk
Project has been fully performed, all Substantial Completion Punch List
items have been fully corrected and all such Work has been finally
completed in accordance with the Contract Docume�ts;
(� A final contractor's payment affidavit from the Contractor;
(g) Final lien waivers from all subcontractors in accardance with Chapter 713,
Florida Statutes;
(h) Consent of surety to final payment (if applicable�;
(i) Copies of all agreements, Permits and Approvals, and all insurance
policies or certificates, if any, pertaining to the completed Work, not
previously provided;
(_j) Co�ies of the final "as-built" drawings reflecting final completion of the
Work in accordance with the approved Plans and Specifications (in native
file format, such as autoCAD, as modified by shop drawings or other
submittals); and
(k} All manufacturers,' suppliers' and subcontractors' warranties and
guarantees (collectively, the "Warranties") duly assigned to the City and
all maintenance and operating instructions, if any, pertaining to the
completed Work.
IV. Final Recorded Access and Easement Agreements: Developer shall provide final executed
and recorded copies af all relevant Access, Maintenance and Easement Agreements, with
all relevant exhibits.
EXHIBIT "F" - DECLARATION C>F USE FOR HOSTEL SiTE
Exhibit F
This instrument prepared by,and after recording retum to:
�;ame:Michael l.arkin, Esy.
Bercow Radell Femandez Larkin&Tapanes, PLLC
Address: 200 S. Bixayne Blvd..Suite 300
Miami, FL 33131
Folio tiumbers:02-3233-018-01 I0,
02-3233-018-0100,02-3233-018-0090
(Space reserved for Clcrk of Court)
DECLARATION OF liSE
THIS DECLARATIOti OF USE ("Declaration"), is made this day of
, 2025 by West Hos�itality Owner LLC, a Delaware Limited Liability
Company (the "Owner'") in order to limit future use of the propert�� located at 1247-1255 West
Avenue and 1234 13 Street, legal described in Exhibit"A", attached hereto and incorporated herein
(the"Property").
W[TNESSETH:
WHEREAS, Owner holds fee-simple titic to the Property.
WHEREAS, Owner has entered in[o a Development Agreement with the City of Miami
Beach, Florida(the "City"), under which it must convey the Property to the City; and
Vb'HEREAS, in order to ensure harmony and compatibility of future uses of the Property by
the Ciry,Owner and the City have agreed to limit the future uses of the Property as set forth herein.
NOW, THEREFORE, the Owner voluntarily covenants and agrees that the Property shall
be subject to the following restrictions that are intended and shall be deemed to be covenants
running with the land and binding upon the Owner of the Property, their successors in interest and
assigns, as follows:
1. The recitals and findings set forth in the preamble of this Declaration are hereby
adopted by reference thereto and incorporated herein as if fully set forth in this Section.
2. The Property shall not be developed or used as a waste processing facility, water
ar sewer processing facility, service yard, utility yard, natural gas facility, debris storage
site, storage yard, ar service station.
Declaration of Restrictive Covenants
1247-1255 West Avenue and 1234 13 Street
Miami Beach, Florida
Page 2 of 5
3. This voluntary Declaration shall remain in full force and effect and shall be
binding upon the Owners of the Property, their successors in interest and assigns for an
initial period of thiRy (30) years from the date this insuument is recorded in the public
records, and shall be automatically extended for successive periods of ten(10) years, unless
modiCied,amended or released prior to the expiratian thereof.
4.This Qeclaration may be modified, amended or released as to any partion of the
Property by a written instrument executed by the then Owners af the fee simple title to the
land to be affected by such modification, amendment or release providing that same has
been appraved by West Hospitality Owner LLC or its successars or assigns. Shauld this
instrument be so modified, amended or released, West Hospitality Owner LLC or its
successors or assigns, shall execute a written instrument in recordable form effectuating
such modification,amendment�r release.
S.Invalidation of any provision of this QecIaration by judgment of Court shall not
affect any of the other provisions of this Deelaration, which shall remain in full force and
effect.
6.This Declaration shall be recarded in the Publie Records of Miami-Dade County,
Florida,at the cost af the Owner.
7.An action to enforce the ierms and conditions of this Declaration may be brought
by West Hospitality 4wner LLC or its successors or assigns and may be, at law ac in equity,
against any party or person violating or attempting to violate any provision of this
Declaration or pravisions of the building, zoning or land development regulations, either to
restrain violations or to recover damages. The prevailing party in the action shall be entitled
to recaver costs and reasonable attorneys' fees, at all levels of trial and appeal. This
enforcement provision shall be in additian to any other remedies available under the law.
[REMA[NDER OF PAGE LEFT INTENTIONALLY BLANK—
SIGNATliRE P�GES TO FOLLOW]
Declaration of Restrictive Covenants
1247-1255 West Avenue and 1234 13 Street
Miami Beach, Elorida
Page 3 of 5
lN WITNESS WHEREOF, West Hospitality Owner LLC, a Delaware limited liability company,
has caused these presents to be signed in its name by its proper officials.
West Avenue Hospitality�Owner LLC
a Delaware Limited Liability Company
By:
W(TNESSES:
Signature: Print Name:
Signature: Print Name:
Address: Address:
STATE OF
COUNTY OF
The foregoing instrument was acknowledged before me by , on behalf of West
Elospitality Owner LLC, by means [ ]�hysical presence or_[ J online notarization, sworn to (or affirmed)
and subscribed before me, this day of ,2025
Witness my signature and official seal this day of ,2025,in the
County and State aforesaid.
Notary
[NOTARIAL SEALJ Print Name:
Notary Public, State of
�ly commission expires:
De�laratian of Restrictive Covenants
1247-1255 West Avenue and 1234 13 Street
Miami Beach, Florida
Page 4 of 5
Approved:
Thomas Mooney, Pianning Director Date
APPROVED AS TO FORM
AND LANGUAGE FOR EXECUTION
Nick Kallergis, Chief Deputy City Attorney Date:
Exhibit F
Exhibit"A"
1247 west A��e.:lliami E3each. Florida 33139(F'atio:02-3233-018-01 l0►:
_
__. __ _
l.ot 9,in Blcek 82,of BAY VIEW tit�BDIY1CInN,sccordiaR to the Pht ticret►t recordM in
Plat Brwk 9,Page i 1Q,af tht Pubiic Recard�af Miaoi-Dadc t'ounry,Florida.
!�oliaM:02-323_i-018-0110
t255���est A��e, �liami Beach,�'lorida 33139{Falio:02-3233-1?It3-004t1):
_ _
LOT 8, LESS TFtE EAST 62.5 FEET, 8LC?CK 82, BAY VIEW SUBDNISION, ACCORDING TO
THE PU4T THEREOF, AS RECORDEO IN PLAT BOOK 9, PAGE 110, (�F THE PUBLIG
REGORDS OF MIAMI-DADE COUNTY, FLORtDA, a/k/a 1255 West Avenue. M�ami Beach,
Fbrida 33139.
t23.i 13t°St.. �liami Beach.F'lurida 33139(F'olio:02-3233-018-4100):
_
The East 62.5 feet of Lot 8, Block 82, BAY VIEW SUBDIVISIQN, accarding to the Piat
thereof, as recarded in Plat Book 9, Page 110,of the Rubiic Records oi Miami-Dade Cawmy,
Florida, a/k/a 1234 13 Street, Miami Beach, Florida 33139.
EXHIBIT "G"— PARK CLOSING DELIVERABLES
Develoaer Deliverables at Substanti I Comctletion and Final ComQletion of the Park
Proiect• �
() Deliverables at Substantial Completion:
(a) A temporary certificate of occupancy ("TCO") or temporary certificate of
completion ("TCC") has been duly issued by the applicable governmental
authority having jurisdiction and a copy thereof delivered to the City;
(b) Developer has applied to DERM and City of Miami Beach Building
Department, or other authority having jurisdiction, for a final inspection
to close out the Permits and Approvals and evidence thereof delivered to
the City, which evidence shall be in form and substance reasonably
acceptable to the City;
(c) All installation instructions, operations and maintenance manuals or
instructions for equipment furnished by Developer, catalogs, product
data sheets for all materials furnished by Developer and similar
information provided}, in compliance with all applicable Requirements,
and without damage to the Work or to the Park P�oject, as reasonably
determined by the City; and
(ci) The most recent updated set of "as-built" drawings reflecting the
progress of the Work through Substantial Completion (in native file
format, such as autoCAD, as same may be modified by shop drawing or
other submittal) have been delivered to tne City.
(1 Substantial Completion Punch List When Developer believes it has achieved
Substantial Completion, Developer shall have prepared a preliminary punch list for
review and approval by the City and the Architect/Engineer of Record, request an
inspection by the City and the Architect/Engineer of Record and deliver to the City
evidence supporting its assessment of Substantial Completion, including any specific
documents or information requested by the City in advance to assist in its evaluation
thereof. Following the inspection, Developer shall provide the City with the list of all
remaining items of Wark to be completed or corrected for Final Completion, which list
incorporates items and comments identified or provided by the City and
Architect/Engineer of Record ("Substantial Completion Punch List"}; provided, however,
that failure to include any items on the Substantial Completion Punch List does not
alter the responsibility of the Developer to complete all Work in accordance with the
Contract Documents.
() Final Completion. As conditions of Final Completion, Developer shall deliver or cause
to be delivered ta the City, as applicable:
(a) Substantial Completion of the Park Project shall have occurred in
accordance herewith;
(b) Written notice from the Contractor that the Work is ready for final
inspection and acceptance;
(c) A final certificate of oceupancy ("CO") or final certificate of completion
("CC"), as applicable, for the Work duly issued by the governmental
authority having jurisdietion thereof;
(d) Evidence of the closure of all Permits and Approvals, as reasonably
approved by the City Manager;
(e) The Architect/Engineer of Record shall have delivered a certificate of final
completion (the "Certificate of Final Completion"), in form and substance
reasonably acceptable to the City, stating that on the basis of its
observations and inspections, the referenced Work for the Park Project
has been fully performed, all Substantial Completion Punch List items
have been fully corrected and all such Work has been finally completed
in accordance with the Contract Documents;
(fl A final contractor's payment affidavit from the Contractor;
(g) Final lien waivers from all subcontractors in accordance with Chapter 713,
Florida Statutes;
(h) Consent of surety to final payment (if applicable);
(i) Copies of all agreements, Permits and Approvals, and all insurance
policies or certificates, if any, pertaining to the completed Work, not
previously provided;
(j) Copies of the final "as-built" drawings reflecting final completion of the
Work in accordance with the approved Plans and Specifications (in native
file format, such as autoCAD, as modified by shop drawings or other
submittals); and
(k} All manufacturers,' suppliers' and subcontractors' warranties and
guarantees (collectively, the "Warranties") duly assigned to the City and
all maintenance and operating instructions, if any, pertaining to the
completed Work.
EXHIBIT "H" — DESCRIPTION OF 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,
the City of Miami Beach, and State of Florida. The proposed development shall be
serviced by thase existing educational facilities owned or operated by the Miami-Dade
Public Schools District, if applicable. The proposed development shall be serviced by
those existing parks and recreational facilities owned or operated by the United States
Government within Miami Dade County, by the State of Florida, by Miami-Dade County,
and by the City of Miami Beach. The proposed development shall be serviced by those
existing health systems and facilities operated by the United States Government within
Miami-Dade County, by the State of Florida, by Miami-Dade County, and by the City of
Miami Beach.
The proposed development will aiso be serviced by any and all public facilities, as
such are defined in Section 163.3221(12) of the Act, that are described in the
Comprehensive Plan, specifically including those facilities described in the Infrastructure
Element and the Capital Improvements Element therein, a copy of which is available for
public inspection in the offices of the City Clerk of the City of Miami Beach.
Notwithstanding the foregoing, the Project may be required to provide for some of its
own services, including solid waste removal and stormwater drainage.
EXHl61T "1"- DESCRIPTION QF PUBLlC RESERVATIONS
All easements referenced in the Agreement.
EXHIBIT "J" — DESCRIPTION OF REQUIRED DEVELOPMENT PERMITS FOR PROJECT
The following constitutes a generalized list of local permits anticipated as necessary to be
approved by the terms of this Development Agreement:
1) Design Review Board, Historic Preservation Board, Planning Board, and/or Board
of Adjustment approvals, pursuant to Chapter 2 of the City's Resiliency Code.
2) Miami-Dade Shoreline Review Approval
3) Miami-Dade County DERM Permits
4) United States Army Corps of Engineer Permits
5) Utility Permits
6) Demolition Permits
7) Building Permits
8) Environmental Permits
9) Hazardous Materials Removal Permit, if removal of hazardous materials is found
necessary.
10)Public Works Permit, Paving and Drainage
11)Public Works Permit, Water and Sewer
12)Public Works Revocable Permits
13)Certificates of Use and/or Occupancy
14)Any variances or waivers that may be required pursuant to the City of Miami Beach
Resiliency Code
15)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.