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This instrument was prepared by (record and return to):
Akerman LLP
98 SE 7th Street, Suite 1100
Miami, Florida 33131
Attn: Kristofer D. Machado, Esq.
(Space reserved for Clerk)
DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT (the "Agreement") is made and entered into as of
the 315t day of July 2019, by and among the CITY OF MIAMI BEACH, a Florida municipal
corporation (the "City"), and jointly and severally 7450 OCEAN TERRACE LLC, 7436 OCEAN
TERRACE LLC, 7420 OCEAN TERRACE INVESTMENT, LLC, 7410 OCEAN TERRACE LLC,
7400 OCEAN TERRACE, LLC, 7409 COLLINS AVE INVESTMENT, LLC, 7421 COLLINS AVE
INVESTMENT, LLC, 7433 COLLINS AVE INVESTMENT, LLC, 7439 COLLINS AVE
INVESTMENT LLC, and 7441 COLLINS AVE INVESTMENT, LLC (collectively, the "Developer").
City and Developer are each a "Party" and collectively are the "Parties" to this Agreement.
Introduction
A. The property that is the subject of this Agreement lies in Miami Beach, Miami -Dade
County, Florida. This Agreement, among other things, is intended to and shall constitute a
development agreement between the parties pursuant to Sections 163.3220-163.32.43, Florida
Statutes, the "Florida Local Government Development Agreement Act" (the "Act") and Section
118-4 of the City Code.
B. The Developer owns or has a legal or equitable interest in the property located
east of Collins Avenue between 74th and 75th Streets, Miami Beach, Florida, more specifically
described in Exhibit "A" (the "Developer Property") and intends to redevelop the Developer
Property with a mixed -use residential, hotel, and retail development (as defined in Section 3-43,
the "Project").
C. The Developer holds a reversionary interest in the public reservation area
immediately east of Ocean Terrace between 74th and 75th Streets, more specifically described
in Exhibit "B" (the "Reversionary Interest").
D. The City has a beneficial and legal interest in the property specifically described in
Exhibit "C" (the "75th Street Parcel'), which is currently improved with a portion of 75th Street
between Collins Avenue and Ocean Terrace.
E. The City has a beneficial and legal interest in the property specifically described in
Exhibit "D" (the 74th Street Parcel"), which is currently improved with a portion of 74th Street
between Collins Avenue and Ocean Terrace.
F. The City has a beneficial and legal interest in the property specifically des
Exhibit "E" the "Ocean Terrace Parcel"), which is currently improved with a portion,'.
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Terrace between 74th and 75th Streets (collectively, with the 74th Street Parcel and the 75th
Street Parcel, the "City Parcel").
G. The City wishes to release the City's beneficial and legal interest in the City Parcel
to provide a unified development site with the Developer Property.
H. The Developer Property and the City Parcel combined constitute the "Development
Site," and is legally described in Exhibit "F."
I. The Developer desires to develop, design, permit and install, at Developer's sole
cost and expense, a public park and streetscape project in the vicinity of Ocean Terrace, which
area is described more fully in Exhibit "G" hereto, and will include improvements to (i) Ocean
Terrace, between 73rd Street and 75"' Street; (ii); the public reservation area immediately east of
Ocean Terrace between 73rd Street and 75th Street; and (iii) 731 Street, 741 Street, and 751
Street, from Collins Avenue to Ocean Terrace (as defined in Section 3.37, the "Park/Streetscape
Site"), to be designed by Raymond Jungles (or by a comparable landscape architecture firm
approved in accordance with Section 65 of this Agreement), substantially as shown on the
Park/Streetscape Concept Plan, and to be constructed in phases in accordance with this
Agreement (the "Park/Streetscape Improvements").
J. The City and Developer anticipate that, once completed, the Park/Streetscape
Improvements will have an estimated value of approximately Fourteen Million Eight Hundred
Thousand Dollars ($14,800,000.00).
K. Pursuant to City Resolution No. 2019-30927 (the "Vacation Resolution"),
concurrently with the execution of this Agreement, the City has approved the vacation of the City
Parcel, subject to and conditioned upon the terms and conditions contained in such Vacation
Resolution, including, without limitation, (1) the grant by the Developer to the City of a perpetual,
non -revocable easement against the City Parcel for subsurface utilities and public recreational,
vehicular, and pedestrian use and access (the "City Parcel Easement"); (2) the Developer
conveying the Reversionary Interest to the City; and (3) the Developer's commitment to improve
the City Parcel with the Park/Streetscape Improvements as provided in this Agreement.
L. The City is a Florida municipal corporation with powers and authority conferred
under the Florida Constitution, the Municipal Home Rule Powers Act, Florida Statutes and the
Miami Beach City Charter and City Code. The City has all governmental, corporate and
proprietary powers to enable it to conduct municipal government, perform municipal and
governmental functions, and render municipal services, including the authority to adopt,
implement and enforce (together with any other required governmental approvals)
comprehensive plans, zoning ordinances, redevelopment plans, and other police power and
legislative measures necessary to assure the health, safety and general welfare of the City and
its inhabitants.
M. Having fully considered this Agreement at two duly noticed public hearings in
compliance with Section 163.3225 of the Act; having determined that the Project,
Park/Streetscape Improvements and this Agreement are in compliance with the City's
Comprehensive Plan and Land Development Regulations as of the Effective Date; and having
further determined that it is in the City's best interest to address the issues covered by this
Agreement in a comprehensive manner, in compliance with all applicable laws, ordinances,
plans, rules and regulations of the City, the City has agreed to enter into this Agreement with the
Developer.
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N. In accordance with Section 163.3227(1)(h) of the Florida Statutes, the City has
determined that the Project, the Park/Streetscape Improvements, and the City Parcel Easement
will benefit the City and the public, and that the conditions, terms, restrictions and requirements
herein are necessary for the public health, safety and welfare of its citizens. The Project and
Park/Streetscape Improvements will help revitalize and improve the character and appearance of
the surrounding neighborhood and will have a significant positive fiscal impact for the City. The
Park/Streetscape Improvements will also provide a significant public amenity and increase
recreational open space in the northern portion of the City.
NOW, THEREFORE, in consideration of the foregoing, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby
agree as follows:
1. Recitations. The foregoing recitations are true and correct and are incorporated
herein by this reference.
2. Authority. This Agreement is entered into pursuant to the authority and procedures
provided by the Act and Section 118-4 of the City Code.
3. Definitions. All capitalized terms in this Agreement shall have the definitions set
forth in this Section unless such terms are defined elsewhere in this Agreement.
3.1 "Act" shall mean the Florida Local Government Development Agreement
Act (Sections 163.3220 - 163.3243, Florida Statutes (2018)).
3.2 "Affiliate" shall mean any Person that, directly or indirectly, through one or
more intermediaries, controls, or is controlled by, or is under common control with another Person.
For purposes hereof, the term "control" (including the terms "controlled by" and "under common
control with") shall mean the possession of a Controlling Interest. Unless the context otherwise
requires, any reference to "Affiliate" in this Agreement shall be deemed to refer to an Affiliate of
Developer.
3.3 "Affiliate Mortgagee" shall mean a lender who is an affiliate of the
Developer or of the Developer's principals, including, without limitation, Access Industries, Inc.
and its subsidiaries, and who holds a mortgage, lien, or other security interest on the Development
Site or a portion thereof.
3.4 "Assignment of Construction Agreements" means an assignment by
Developer to the City of all of Developer's right, title and interest in and to the Construction
Agreements, which assignment shall include a duly executed consent by the Contractor and
architect/engineer of record and all other Persons having any interests therein, and shall
otherwise be in form and substance reasonably satisfactory to the Parties, which assignment shall
be executed by Developer solely for the purpose of providing additional security to the City for the
performance and discharge of Developer's obligations in this Agreement with respect to the
Park/Streetscape Improvements, and shall only be exercisable by the City upon the occurrence
of an uncured Event of Default by Developer under this Agreement pertaining to the
Park/Streetscape Improvements.
3.5 "Assignment of Plans, Permits and Approvals" means an assignment by
Developer to the City of all of Developer's right, title and interest in and to the approved Permit
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Plans and Specifications and all Permits and Approvals for the Park/Streetscape Improvements,
which assignment shall include a duly executed consent by the architect/engineer of record and
all other Persons having any interests therein, and shall otherwise be in form and substance
reasonably satisfactory to the Parties, which assignment shall be executed by Developer solely
for the purpose of providing additional security to the City for the performance and discharge of
Developer's obligations in this Agreement with respect to the Park/Streetscape Improvements,
and shall only be exercisable by the City upon the occurrence of an uncured Event of Default by
Developer under this Agreement pertaining to the Park/Streetscape Improvements.
3.6 "Building Permit' shall mean any permit issued by the City of Miami Beach
Building Department or Building Official, including any foundation, building, or phase permits.
3.7 "Business Day" shall mean any day other than a Saturday, Sunday, and
any federal or state holiday. If any period expires on a day that 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 that
is not a Business Day, then such period shall expire, or such event or condition shall occur or be
fulfilled, as the case may be, on the next succeeding Business Day.
3.8 "City" shall mean the City of Miami Beach, a Florida municipal corporation,
having its principal offices at 1700 Convention Center Drive, Miami Beach, Florida 33139. In all
respects hereunder, City's obligations and performance is pursuant to City's position as the owner
of the City Parcel acting in its proprietary capacity. In the event City exercises its regulatory
authority as a governmental body, the exercise of such regulatory authority and the enforcement
of any rules, regulations, laws and ordinances (including through the exercise of the City's
building, fire, code enforcement, police department or otherwise) shall be deemed to have
occurred pursuant to City's regulatory authority as a governmental body and shall not be
attributable in any manner to City as a Party to this Agreement or in any way deemed in conflict
with, or a default under, the City's obligations hereunder.
3.9 "City Code" shall mean the Code of Ordinances of the City.
3.10 "City Parcel" shall mean the area described in Exhibits "C," "D," and "E.
3.11 "City's Consultant" has the meaning provided in Section 18.
3.12 "Closing" shall refer to the formal exchange of documents between the
parties, as further described in Section 5 of this Agreement.
3.13 "Commence Construction," "Commencement of Construction" and terms of
similar import mean, with respect to the Park/Streetscape Improvements, the commencement of
bona -fide site work for the Park/Streetscape Improvements, including, without limitation, clearing,
grubbing, erection of construction fencing, and drainage improvements.
3.14 "Comprehensive Plan" shall mean the comprehensive plan which the City
has adopted and implemented for the redevelopment and continuing development of the City
pursuant to Chapter 163, Part II of the Florida Statutes.
3.15 "Construction Agreements" shall mean those contracts be the
Developer and the Contractor, architects, and engineers with whom Developer is i
of contract for the construction of the Park/Streetscape Improvements. `s
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3.16 "Contractor" shall mean the Developer's general contractor for the
construction of the Park/Streetscape Improvements, to be selected by Developer in compliance
with the requirements of Section 65 of this Agreement.
3.17 "Controlling Interest" means the power to direct the management and
decisions (both major decisions and day-to-day operational decisions) of any Person.
3.18 "Covenant in Lieu of Unity of Title" shall mean the covenant in lieu of unity
of title covering the Development Site, substantially in the form attached as Exhibit "H."
3.19 "Developer" means the persons or entities undertaking the development of
the Development Site and the Park/Streetscape Improvements, as defined in the preamble to this
Agreement, or any permitted successors, assigns, transferees, delegatees, or heirs thereof.
3.20 "Development Default Deadlines" shall mean those default deadlines set
forth in Sections 42(b), (c), (d), and (e) of this Agreement.
3.21 "Development Dispute" shall mean any contention by Developer that City
has unreasonably failed to approve or give its consent to any modifications to any Plans and
Specifications pursuant to Sections 8, 9, and/or 11 of this Agreement, or any contention by City
that Developer has not complied with its obligations or responsibilities set forth in those sections.
3.22 "Development Order" means any order granting, denying, or granting with
conditions an application for a Development Permit.
3.23 "Development Site" shall mean the area described in Exhibit "F," including,
after the Closing, the Developer's right, title, and interest in and to the City Parcel.
3.24 "Development Permit" shall have the meaning set forth in Section
163.3221(5), Florida Statutes (2018).
3.25 "Economic Force Maieure" means economic or political conditions or
events that materially impair access to debt or equity markets by developers for development of
projects similar to the Project or allow a committed debt or equity participant to terminate its debt
or equity commitment, such as a temporary or long-term liquidity crisis or major recession, as well
as disruptions in the normal functioning of the economy and/or related debt and equity capital
markets, including extreme and/or prolonged recessionary conditions, sustained elevated levels
of unemployment, sustained increased interest rates, sustained losses in valuations of equity,
debt, real estate, hospitality and other markets, and severe limitations in the ability to raise liquidity
and/or capital through those markets.
3.26 "Effective Date" is 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
(2018), and Section 36 of this Agreement.
3.27 "Execution Date" is the date the last of the required Parties executes this
Agreement.
3.28 "Final Approval" shall mean, with respect to the Project Zoning Approvals,
the Park/Streetscape Zoning Approval, or any other Permits and Approvals for the_Rr-oje.Et or the
Park/Streetscape Improvements, that such permit or approval has been finally alJproved i�4he
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issuing governmental or regulatory body. With respect to the Project Zoning Approvals and the
Park/Streetscape Zoning Approval, and any other discretionary Permit or Approval requiring a
public hearing, it shall further mean that all appeal and limitations periods have expired, with no
challenges or appeals having been made or with all challenges and appeals having been finally
disposed of (by judgement, settlement or otherwise) to Developer's satisfaction. Notwithstanding
anything to the contrary, Developer will be deemed to have accepted all conditions attaching to a
particular Permit or Approval unless the Developer notifies the City in writing, no later than thirty
(30) days after such Permit or Approval is finally approved, of its objections to any such conditions
and intent to appeal or avail itself of other remedies. Upon delivery of such written notice, the
Permit or Approval at issue shall not be deemed a "Final Approval" unless and until the offending
condition is removed or the Developer waives its objections by written notice to the City.
3.29 "Force Majeure Events" include, without limitation, floods, storms,
hurricanes, and other acts of God (including reasonable preparation therefor); war, terrorism,
riots, civil commotion, fire, and other casualty; epidemics; quarantines; strikes, lockouts, labor
disputes, and any inability to procure, or a general shortage of, labor, equipment, facilities,
materials, or supplies in the open market; breakdown of transmission or other systems or facilities;
the declaration of a state of emergency by the President of the United States or by the Governor
of Florida that, in each case, includes Miami -Dade County, Broward County, and/or Palm Beach
County; moratoria; the pendency of any Lawsuit (as defined below) and any unexpired appeal
periods thereof at all levels of appeal; acts of the other Party; and all other causes and
circumstances similar to the foregoing, but excluding Economic Force Majeure.
3.30 "Hold Harmless" shall mean the Hold Harmless Agreement, substantially
in the form attached in Exhibit.'T"
3.31 "Land Development Regulations" shall have the meaning set forth in
Section 163.3221(8), Florida Statutes (2018) and shall also include, without limitation, the
definition of "land development regulations" in Section 114-1 of the City Code.
3.32 "Laws" means all ordinances, resolutions, regulations, the Comprehensive
Plan, Land Development Regulations, and rules adopted by a local government having jurisdiction
affecting the development of land, specifically including the City's Comprehensive Plan and the
City's Land Development Regulations.
3.33 "Material Modification" and words of similar import shall mean (i) any
modification that reduces the total area of the Park/Streetscape Site from that shown on the
Park/Streetscape Concept Plan or on any subsequently approved Plans and Specifications, as
applicable; (ii) any modification that introduces uses at the Park/Streetscape Site that have not
been previously approved by the City and are substantially incompatible with the
Park/Streetscape Concept Plan or with any subsequently approved Plans and Specifications, as
applicable; or (iii) any modification that substantially diminishes the physical quality of the
landscaping and improvements shown on the Park/Streetscape Concept Plan or on any
subsequently approved Plans and Specifications, as applicable. Any disagreement between the
Parties as to whether a proposed modification is a Material Modification shall be resolved by
expedited arbitration pursuant to Section 34 of this Agreement.
3.34 "Park/Streetscape Concept Plan" shall mean the plans, designs, and
drawings, illustrating the proposed concept for the Park/Streetscape improvements —which
approved plans are attached in Exhibit "J."
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3.35 "Park/Streetscape Construction Commencement Date" shall mean the
date on which Developer Commences Construction of the Park/Streetscape Improvements.
3.36 "Park/Streetscape Improvements" shall mean the improvements to be
made to the Park/Streetscape Site as further described in accordance with this Agreement.
3.37 "Park/Streetscape Site" shall mean the property described in the
Introduction and depicted in the Park/Streetscape Concept Plan, as the same may be modified
by any subsequently approved Plans and Specifications.
3.38 "Permits and Approvals" shall mean the Project Zoning Approvals, the
Park/Streetscape Zoning Approval, all Building Permits (including, without limitation, a "full
building permit," as defined in the Land Development Regulations), and any other Development
Orders, Development Permits, or other local, state, or federal permits or approvals required by
applicable Laws or Requirements, for the Project or the Park/Streetscape Improvements, as
applicable.
3.39 "Permitted Transferee" means any Affiliate of the Developer.
3.40 "Person" means any individual, firm, general or limited partnership,
corporation, limited liability company, association, joint venture, estate, trust, unincorporated
association, or other entity, and any fiduciary acting in such capacity on behalf of any of the
foregoing.
3.41 "Phase" shall mean Phases 1 and 2 of the Park/Streetscape
Improvements, as depicted on the Park/Streetscape Concept Plan or on any subsequently
approved Plans and Specifications, as applicable.
3.42 "Plans and Specifications" shall mean the plans and specifications for the
design, development, and construction of the Park/Streetscape Improvements, including fully
detailed drawings showing the location, character, dimensions, details, and specifications of the
work to be done, and comprising all of the written directions, provisions, and requirements for the
Park/Streetscape Improvements, including detailed technical requirements as to labor, materials,
supplies, equipment, and standards to which such work is to be performed, prepared by duly
qualified, licensed and insured architects and engineers, in each case, consistent with the
approved Park/Streetscape Concept Plan. As used in this Agreement, the "Plans and
Specifications" include, without limitation, the Preliminary Plans and Specifications, the Final
Plans and Specifications, the Permit Plans and Specifications, and any approved modifications
thereto.
3.43 "Proiect" shall mean the development, design and construction of the
Development Site (including, after the Closing, the Developer's right, title, and interest in and to
the City Parcel) consistent with the City's Land Development Regulations for the Ocean Terrace
Overlay District and the underlying CD-2 and MXE zoning districts, as the same may be amended
from time to time, but subject to Section 28 of this Agreement, and provided that the Project must
include at least 75 hotel units and may only include one tower in excess of 125 feet.
3.44 "Recognized Mortgagee" shall mean any Affiliate Mortgagee, bank,
savings and loan association, insurance company, an agency of the United States G"pvernmeht,
the Federal National Mortgage Association, the Federal Home Loan Mortgage Cbrporatign,;q,
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any other lender generally recognized as an institutional lender, holding a mortgage, lien, or other
security interest on the Development Site or a portion thereof, and who has notified the City that
it is a Recognized Mortgagee under this Agreement and has provided an address for notices.
3.45 "Requirements" shall mean any and all laws, constitutions, rules,
regulations, orders, ordinances, charters, statutes, codes, executive orders and requirements of
all governmental authorities having jurisdiction over a person, the Project, and/or the
Park/Streetscape Site or any street, road, avenue or sidewalk comprising a part of, or lying in
front of, the Park/Streetscape Site.
3.46 "Substantial Completion" and words of similar import shall mean, with
respect to the Project or the Park/Streetscape Improvements, that such component has been
completed in accordance with the Permit Plans and Specifications and the requirements of
Section 14.2(a) through (d) have been satisfied, and such component is ready for occupancy,
except for so-called "punch list" items (including, without limitation, adjustments to equipment,
fixtures, landscaping, and similar items of work) that can be completed after occupancy has been
taken without causing substantial interference with the use of such component.
3.47 "Vacation Resolution" means the City's Resolution No. 2019-30927,
approving, with conditions, the vacation of the City Parcel.
VACATION RESOLUTION
4. I_nitial_R_ights and Obligations of City and Developer. The following will constitute
the initial rights and obligations of the Developer and City:
(a) Vacation Resolution for City Parcel. City acknowledges that Developer has
submitted a complete application for the vacation of the City's beneficial and legal interest in the
City Parcel, also known as portions of Ocean Terrace, 74th Street, and 75th Street. The City
agrees to diligently process that application and to promptly schedule same for consideration by
the City Commission and adoption of the Vacation Resolution, which shall be substantially in the
form attached as Exhibit "K." The Parties recognize that this Agreement does not obligate the
City Commission to adopt the Vacation Resolution, and that the City Commission retains the sole
and absolute discretion, subject to applicable Laws and Requirements, whether to adopt, adopt
with changes, or deny the Vacation Resolution.
(b) Failure to Adopt Vacation Resolution. In the event that the City Commission
denies the application for the Vacation Resolution or approves it in a form or with any terms,
conditions, or obligations inconsistent with this Agreement or that are otherwise unacceptable to
Developer in its sole and absolute discretion, then within sixty (60) days of such denial or approval
Developer shall, at its option, either: (i) notify the City of its intent to submit a revised application
for the vacation of the City Parcel; or (ii) terminate this Agreement in accordance with Section 45
hereof.
CLOSING
5. Closing. The Closing shall occur on a date set by Developer, at its election, with
prior written notice to the City, but in no event later than ten (10) Business Days after the date on
which Developer has obtained Final Approval of all Permits and Approvals to rgm�re
Construction of the Park/Streetscape Improvements and Final Approval of the Pr eft -Zoning,.
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Approvals, subject to the termination provisions in Section 45 below. At the Closing, the Developer
and City shall perform the following:
(a) The City, pursuant to and subject to the terms of the Vacation Resolution,
will deliver a quit claim deed to Developer through which the City quit claims, remises, releases
and transfers unto Developer and Developer's successors and assigns forever, all right, title,
interest, claim and demand that City has in and to the City Parcel, subject to Developer's delivery
of the Surety Bond and the City Parcel Easement (the "City Deed").
(b) Developer will, subject to City's delivery of the City Deed, deliver to City a
quit claim deed through which the Developer quit claims, remises, releases and transfers unto
City and City's successors and assigns forever, all right, title, interest, claim and demand that
Developer has in and to the Reversionary Interest, but reserving the Reversionary Interest in the
eastern thirty (30) feet of the Ocean Terrace right-of-way.
(c) Developer will grant to City the City Parcel Easement, in the form attached
as Exhibit "L," and subject to Section 60.5 of this Agreement.
(d) Developer will deliver to City, at Developer's election, either:
i. A written tri-party agreement among Developer, the City and the
lender providing a construction loan for the construction of the Park/Streetscape Improvements
(the "Park Lender"), in form and substance reasonably acceptable to the City (the "Recognition
Agreement"), pursuant to which the Park Lender agrees to (a) fund the then remaining cost to
Substantially Complete the construction of the Park/Streetscape Improvements (the "Park
Construction Amount") directly to the City in the event the Developer fails to Substantially
Complete the Park/Streetscape Improvements in accordance with this Agreement and such
failure continues uncured past applicable notice and cure periods, (b) fund the then remaining
Park Construction Amount by way of monthly draws pursuant to the draw procedure set forth in
the construction loan documents, and (c) fund such then remaining Park Construction Amount
directly to the City pursuant to (a) and (b) above, notwithstanding that the Developer may be in
default of its construction loan with the Park Lender. The right to draw funds under the Recognition
Agreement (or Surety Bond, as applicable) shall be the City's sole and exclusive remedy for the
Developer's failure to Substantially Complete the Park/Streetscape Improvements in accordance
with this Agreement. If the City receives any funds under the Recognition Agreement, then all
conditions precedent to the issuance of all certificates of occupancy and/or certificates of
completion for the Project (whether in whole or in part) shall be deemed satisfied, and the
Developer shall have the right to apply for, and the City shall have an obligation to issue (when
and as required by the City Code), all such approvals, whether or not construction of the
Park/Streetscape Improvements has been completed by the City; or
ii. A surety bond with a penal sum equivalent to the guaranteed
maximum price set forth in the Construction Agreements for the then -remaining design and
construction of the Park/Streetscape Improvements, plus City's estimated oversight/inspection
costs, or, if the Developer has not executed the Construction Agreements as of the Closing, then
with a penal sum equivalent to the City's estimate to complete the then -remaining work for the
design and construction of the Park/Streetscape Improvements, but provided that in no event
shall the penal sum for the surety bond exceed Fourteen Million Eight Hundred Thousand Dollars
($14,800,000.00), and naming the City as obligee, in a form reasonably acceptable tc
by a surety listed in the most recent United States Department of Treasury listing
sureties (the "Surety Bond"). The Surety Bond shall provide that, if Developer fails to
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Complete the Park/Streetscape Improvements in accordance with this Agreement and such
failure continues uncured past applicable notice and cure periods, then, as the City's sole and
exclusive remedy for such default (subject to City's exercise of its rights pursuant to Section
44(b)), the surety shall be liable to City for the City's actual, out-of-pocket expenses incurred in
Substantially Completing the Park/Streetscape Improvements, up to a maximum aggregate
liability of the penal sum. Developer shall have the right to reduce the penal sum of the Surety
Bond on a monthly basis to reflect then -remaining cost of Substantially Completing the
Park/Streetscape Improvements. The Surety Bond shall terminate immediately upon the
Substantial Completion of the Park/Streetscape Improvements in accordance with this
Agreement. If the City receives any funds from the surety pursuant to the Surety Bond, then all
conditions precedent to the issuance of all certificates of occupancy and/or certificates of
completion for the Project shall be deemed satisfied, and the Developer shall have the right to
apply for, and the City shall have an obligation to issue (when and as required by the City Code),
all such approvals, whether or not construction of the Park/Streetscape Improvements has been
completed by the City.
(e) Developer will execute and record the Hold Harmless Agreement.
(f) The City and Developer shall execute the Covenant in Lieu of Unity of Title.
(g) Developer shall submit confirmatory evidence of an agreement between
the Developer and the owner of the property located at 7401 Collins Avenue, with respect to any
acquisition by Developer of any property rights pertaining to 7401 Collins Avenue in connection
with the development of the Project, and any joinder to the Covenant in Lieu of Unity of Title or
other Closing documents, as may be required to include the 4,380 sq. ft. right-of-way area abutting
7401 Collins Avenue as part of the unified development site for the Project. Developer shall, in
accordance with the provisions of Section 56 of this Agreement, indemnify, defend and hold
harmless the City from and against any and all Losses sustained by the City in connection with
Developer's election to include property rights related to 7401 Collins Avenue as part of the
Project.
(h) The City and Developer will execute and record a temporary construction
and access easement agreement, substantially in the form of Exhibit "S" to this Agreement,
through which the City grants Developer the right to access the Park/Streetscape Site for
construction and installation of the Park/Streetscape Improvements and for staging and storage
of construction vehicles, equipment, and materials related to the development and construction
of the Project and the Park/Streetscape Improvements, including, without limitation, the rights
specified in Sections 13.2(a) and 13.2(b) of this Agreement.
(i) Developer will deposit in escrow with Akerman LLP or with such other
escrow agent selected by Developer in its reasonable discretion ("Escrow Agent") the sum of Fifty
Thousand Dollars ($50,000.00) (the "Unwinding Funds"), to be paid to the City in accordance with
Section 45 of this Agreement to cover any City Unwinding Expenses (defined in Section 45 below)
in the event that the Developer terminates this Agreement for convenience following the Closing
but prior to the Commencement of Construction of the Park/Streetscape Improvements (the
"Unwinding Escrow").
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DESIGN AND DISCRETIONARY APPROVALS
6. City Cooperation.
(a) Developer acknowledges that until the Closing, the City will remain the
owner of the City Parcel, and, therefore, applications for design review approval for the
Park/Streetscape Improvements, or any other zoning application for any other development that
includes the City Parcel while the City is the owner, may lawfully be approved only with the City's
joinder. The City, in its proprietary capacity, hereby covenants to cooperate with Developer and
agrees to join and execute all applications and supporting documents as Developer may
reasonably request of the City in connection with Developer's pursuit of any Permits and
Approvals for the Project or the Park/Streetscape Improvements, so long as the same are not
materially inconsistent with this Agreement. Notwithstanding the foregoing, the City may revoke
such proprietary consent if the Developer terminates or is in material default of this Agreement,
and, upon such revocation, the City may, in its governmental capacity, withhold issuance of any
Permits and Approvals for the Project or the Park/Streetscape Improvements that require the
City's proprietary consent for issuance. Furthermore, the Developer shall not commence vertical
construction of the Project prior to the Closing.
7. Project Approvals.
(a) Developer shall be responsible for the development, design, permitting,
and construction of the Project at Developer's sole cost and expense, except as provided in
Section 23 below. Developer acknowledges that development of the Project will require design
review approval by the City's Historic Preservation Board ("HPB") and, if applicable, conditional
use approval by the Planning Board (collectively, the "Project Zoning Approvals").
(b) After the adoption of the Vacation Resolution, the Developer shall, at its
sole cost and expense, diligently prepare applications requesting the Project Zoning Approvals
(the "Project Zoning Applications"). The City shall join in such Project Zoning Applications as the
owner of the City Parcel unless the development requested in such Project Zoning Applications
is materially inconsistent with this Agreement.
(c) Upon the Developer filing the Project Zoning Applications, the City shall
process those applications as expeditiously as possible and in accordance with the requirements
of the City Code. The Developer acknowledges that review of the Project Zoning Applications by
the City and its boards is quasi-judicial and that nothing in this Agreement obligates the City to
approve those applications or limits the quasi-judicial authority of the City and its boards to impose
conditions or take any action on the Project Zoning Applications as provided by the City Code. If
the Project Zoning Application is denied by the City, or if it is approved by the City with any terms,
conditions, or obligations not consistent with this Agreement or that are otherwise unacceptable
to Developer in its sole and absolute discretion, then the Developer may elect to: (i) diligently
prepare revised applications requesting the Project Zoning Approvals for a revised Project; (ii)
exercise any rights of appeal or redress the Developer may have; or (iii) terminate this Agreement
in accordance with Section 45 hereof.
8. Park/Streetscape Approvals.
s ,
(a) Developer shall be responsible for the develops 44i, desi ��tt,ti ermitting,
and construction of the Park/Streetscape Improvements at Developer' .s'ol lco$t a' .expense,
except as provided in Section 23 below. The design of the Park/Streets ape 1'mpio ents shall
11
49127872,13
be substantially in accordance with the design shown in the Park/Streetscape Concept Plan,
except to the extent that changes thereto have been negotiated with, and approved by, City.
Developer acknowledges that development of the Park/Streetscape Improvements, based on the
Park/Streetscape Concept Plan, will require design review approval by the City's HPB (the
"Park/Streetscape Zoning Approval"). Developer shall be solely responsible for obtaining the
approval of the City's HPB, and, subject to applicable Laws and Requirements, the HPB shall
have no duty or obligation to approve any particular design.
(b) After the adoption of the Vacation Resolution, the Developer shall diligently
prepare an application seeking design review approval of the Park/Streetscape Improvements
(the "Park/Streetscape Zoning Application"). Prior to submission of the Park/Streetscape
Improvements design to the HPB, Developer shall submit to City (acting in its proprietary capacity
as' owner of the City Parcel) all of the preliminary Plans and Specifications for the
Park/Streetscape Improvements, which shall include, but not be limited to, a detailed site plan,
elevations, and landscape plan for the Park/Streetscape Improvements (the "Preliminary Plans
and Specifications"), which shall be submitted to the City Manager for approval. At a minimum,
the Preliminary Plans and Specifications shall be developed to ensure pedestrian and vehicle
circulation and access, including, without limitation, the following:
i. The Preliminary Plans and Specifications shall address accessibility needs
for elderly and/or disabled persons, and shall be designed to ensure that
public access to the City's beaches is maintained.
ii. The Preliminary Plans and Specifications shall provide for a "reasonable
flow" for ingress/egress of vehicles on 75th Street, with a proposed solution
that may include either a drop-off loop or other turn -around at the east end
of 75th Street, or any other similar proposed solution as may be approved
by the City Manager at the City Manager's sole discretion, to ensure
vehicular access to the 75th Street parking lot and/or access for drop-offs
to the beach.
iii. The Preliminary Plans and Specifications shall provide for emergency
vehicle access to the Park/Streetscape Site, as well as for buildings located
in the vicinity of the Park/Streetscape Site, including vehicular drop-offs for
elderly visitors to the UNIDAD building at 7251 Collins Avenue, and load-
in/load-out needs for the North Beach Bandshell located at 7275 Collins
Avenue.
iv. The Preliminary Plans and Specifications shall provide for ingress/egress
for pedestrians and vehicles accessing the St. Tropez property located at
7330 Ocean Terrace ("St. Tropez"), and shall incorporate any comments
as may be provided by the City Manager with respect to ingress/egress for
the St. Tropez.
Notwithstanding any other provisions in this Agreement to the contrary, the portions of the Plans
and Specifications for the Park/Streetscape Project relating to Subsections 8(b)(i) through 8(b)(iv)
shall be subject to approval by the City Manager at the City Manager's sole discretion (or by the
City Commission pursuant to Section 63).
(c) The City Manager shall review the Preliminary Plans �r1f] Specifications
solely for general consistency with the Park/Streetscape Concept Plan and the' r�gUjr6rn of
12
49127872;13
this Agreement. The City Manager (or the City Commission pursuant to Section 63) will not
withhold, delay, or condition the City's proprietary approval so long as the proposed
Park/Streetscape Improvements substantially accord with the Park/Streetscape Concept Plan in
all material respects, or contain only those material changes that were previously negotiated with,
and approved by, City in its proprietary capacity. If the City Manager (or the City Commission
pursuant to Section 63) disapproves the Preliminary Plans and Specifications, then Developer
shall, at its election, either (x) submit the City's disapproval to expedited arbitration pursuant to
Section 34 as to the reasonableness of the disapproval, or (y) submit a revised modification to
the Preliminary Plans and Specifications to meet the City's objections, which revised modification
shall be submitted and reviewed as provided in Section 9. The Developer may not file, and the
City may not join, the Park/Streetscape Zoning Application until the City Manager (or the City
Commission pursuant to Section 63) has approved the design of the Park/Streetscape
Improvements in its proprietary capacity.
(d) After the City Manager has approved the design of the Park/Streetscape
Improvements in its proprietary capacity, the Developer shall diligently pursue the approval of the
Park/Streetscape Zoning Application through the issuance of an HPB Order (the
"Park/Streetscape Zoning Approval"). Although the Project Zoning Applications will be separate
applications from the Park/Streetscape Zoning Application, it is the express intent of the Parties
that the Project Zoning Applications and the Park/Streetscape Zoning Application will all be
scheduled before and heard by the HPB on and at the same meeting date. Developer will
endeavor to have the Park/Streetscape Zoning Application and the Project Zoning Applications
heard by HPB within twelve (12) months following the Effective Date of this Agreement, but the
failure to do so will not be deemed an Event of Default.
(e) Developer acknowledges that review of the Park/Streetscape Zoning
Application by the City and its boards is quasi-judicial, and that nothing in this Agreement obligates
the City to approve that application or limits the quasi-judicial authority of the City and its boards
to impose conditions or take any action on the Park/Streetscape Zoning Application as provided
by the City Code. If the Park/Streetscape Zoning Application is denied by the City, or if it is
approved by the City with any terms, conditions, or obligations not consistent with this Agreement
or that are otherwise unacceptable to Developer in its sole and absolute discretion, then the
Developer may elect to: (i) diligently prepare revised applications requesting the Park/Streetscape
Improvements Zoning Approval for revised Park/Streetscape Improvements after proprietary
approval by the City Manager as set forth above; (ii) exercise any rights of appeal or redress the
Developer may have; or (iii) terminate this Agreement in accordance with Section 45.
(f) Upon receipt of the HPB's approval of the Park/Streetscape Improvements,
Developer shall prepare plans and specifications for construction of the Park/Streetscape
Improvements, consistent with the Preliminary Plans and Specifications, as approved by the HPB,
if applicable, for confirmatory review by the City Manager (the "Final Plans and Specifications").
Developer shall pursue approval by the City Manager of the Final Plans and Specifications
diligently and in good faith. The Final Plans and Specifications shall be reviewed by the City
Manager for substantial consistency with the Preliminary Plans and Specifications as the same
have been modified by the HPB, if applicable. If the City Manager (or the City Commission
pursuant to Section 63) disapproves the Final Plans and Specifications, then Developer shall, at
its election, either (x) submit the City Manager's disapproval to expedited arbitration pursuant to
Section 34 as to the reasonableness of the disapproval, or (y) submit a revised modification to
the Final Plans and Specifications to meet the City Manager's objections, which revis-e
modification shall be submitted and reviewed as provided in Section 9. Nothing in this patagr.
shall obligate the City to accept Final Plans and Specifications that are inconsistent ' it i tj
IN
49127872;13
Preliminary Plans and Specifications except for those inconsistencies that are necessitated by
the Park/Streetscape Improvements Zoning Approval or by the Requirements.
Park/Streetscape Plan Material Modifications.
(a) If Developer desires to implement Material Modifications to previously
approved Plans and Specifications, Developer shall submit any such modified Plans and
Specifications to the City Manager for approval in the City's proprietary capacity. Such modified
Plans and Specifications shall clearly indicate, by "ballooning", highlighting, blacklining or
describing in writing in sufficient detail in a memorandum accompanying such modified Plans and
Specifications, all such proposed Material Modifications to the Plans and Specifications. Promptly
after its receipt of the proposed Material Modifications, the City Manager shall notify Developer in
writing, with specificity, of any Material Modifications of which City disapproves, it being agreed,
however, that the City Manager's failure to notify Developer of its disapproval within fifteen (15)
Business Days of its receipt of the proposed Material Modifications shall be deemed to constitute
City's conclusive approval of such modified Plans and Specifications. Notwithstanding anything
to the contrary, City shall not unreasonably withhold, condition, or delay the City's approval of any
modifications to the Plans and Specifications that, regardless of materiality, are necessitated by
Requirements or as a result of a drafting, coordination, mechanical or technical error in the Plans
and Specifications, and all such modifications shall be deemed approved by the City in its
proprietary capacity.
(b) If the City Manager (or the City Commission pursuant to Section 63)
disapproves any proposed Material Modifications to the Plans and Specifications, then Developer
shall submit revised Plans and Specifications or a revised modification to the Plans and
Specifications to meet the City Manager's objections, which revised Plans and Specifications or
revised modification shall be reviewed as provided in Section 9(a), as applicable.
BUILDING PERMITS
10. City Joinder. The Developer acknowledges that until the Closing, no application
for a Building Permit for the Project or the Park/Streetscape Improvements may lawfully be
approved (and no Building Permit may be issued) without the City's joinder to such application
while the City is the owner of the City Parcel. The City agrees, upon Developer's request, to join
any application for a Building Permit for the Project and/or Park/Streetscape Improvements, and
any application for a Covenant in Lieu of Unity of Title, so long as the same are not materially
inconsistent with this Agreement, but a Building Permit for the Park/Streetscape Improvements
shall not issue until the Closing, and a Building Permit for the Project shall not issue until the City
has issued a Building Permit for the Park/Streetscape Improvements. Notwithstanding the
foregoing, the City may revoke such proprietary consent if the Developer terminates or is in
material default of this Agreement, and, upon such revocation, the City may, in its governmental
capacity, withhold issuance of any Building Permits for the Project or the Park/Streetscape
Improvements that require the City's proprietary consent for issuance.
11. Prerequisites to Park/Streetscape Building Permit. Prior to submitting an
application for a Building Permit for the Park/Streetscape Improvements, Developer shall prepare
and submit to City (acting in its proprietary capacity as owner of the City Parcel), for confirmatory
review and approval by the City Manager, the Plans and Specifications intended to be used to
obtain the required Building Permit (the "Permit Plans and Specifications"). If such submitted
Permit Plans and Specifications contain Material Modifications to the Final Plans and
Specifications approved by the City Manager following HPB approval in accordance 'With Section
14 49127872;13
8(f) above (or any more recently modified Plans and Specifications approved in accordance with
Section 9(a) above), then such Permit Plans and Specifications shall clearly indicate, by
"ballooning", highlighting, blacklining or describing in writing in sufficient detail in a memorandum
accompanying such Permit Plans and Specifications, all such Material Modifications. Promptly
after its receipt of such Permit Plans and Specifications, the City Manager shall notify Developer,
in writing, describing, with specificity, the basis for disapproval of any Material Modifications of
which the City Manager disapproves. Further, whenever Developer advises the City Manager in
writing, and the City Manager agrees with Developer in writing, that the Permit Plans and
Specifications, as approved as herein provided above, are complete and sufficient and suitable
to construct, furnish and equip the entire Park/Streetscape Improvements in accordance with the
provisions of this Agreement, such written agreement shall be deemed to constitute City's
conclusive approval of all modifications and inconsistencies, whether or not the modifications are
highlighted, in such Permit Plans and Specifications. Notwithstanding anything to the contrary,
City shall not object to any modifications to any Plans and Specifications (i) that are not Material
Modifications, or (ii) that, regardless of materiality, are necessitated by Requirements or as a
result of a drafting, coordination, mechanical or technical error in the Plans and Specifications,
and all such modifications shall be deemed approved by the City in its proprietary capacity.
CONSTRUCTION OF PARK/STREETSCAPE IMPROVEMENTS
12. Conditions Precedent to Developer's Commencement of Construction of the
Park/Streetscape Improvements.
12.1 Developer shall not Commence Construction of the Park/Streetscape
Improvements or any Phase thereof unless and until:
i. the Closing shall have occurred;
ii. Developer shall have obtained and delivered to City's Consultant copies of
all Permits and Approvals required to Commence Construction of the
Park/Streetscape Improvements;
iii. Developer shall have delivered to City original certificates of the policies of
insurance required to be carried pursuant to the provisions of Exhibit "N" to
this Agreement;
iv. Contractor shall have furnished to City the Payment Bond and Performance
Bond required by Section 12.3;
v. City Manager shall have approved the Permit Plans and Specifications, as
provided in Section 11;
vi. Developer shall have delivered to the City a duly executed original
Assignment of Construction Agreements for the Park/Streetscape
Improvements, and a duly executed original Assignment of Plans, Permits
and Approvals for the Park/Streetscape Improvements; and
vii. Contractor shall have submitted to Developer and City a construction,
schedule as provided in Section 19.2;
15 ,,,+
..
49127872;13
provided, however, if Developer chooses to perform any construction of the Park/Streetscape
Improvements on a "fast track" basis (other than pursuant to the Phases approved herein),
Developer may request the necessary approval of the City Manager in stages and perform that
portion of the construction work which has been approved by the City Manager at the City
Manager's reasonable discretion (provided Developer shall comply with all of the requirements of
Section 12.1 above, and all other applicable requirements with respect to such portion of the
construction work), even if progress plans and specifications for other portions of the construction
work have not yet been prepared.
12.2 In addition to the City's cooperation obligations set forth elsewhere in this
Agreement, the City (solely in its capacity as the owner of the City Parcel and not in its
governmental capacity) hereby covenants to fully cooperate with Developer (at no cost to the City)
in obtaining any and all Permits and Approvals required for the Project and the Park/Streetscape
Improvements, and any necessary utility access agreements, including, without limitation, by
signing all applications reasonably made by Developer that are required to obtain such Permits
and Approvals and utility access agreements. In addition, the City shall provide Developer with
any information and/or documentation not otherwise reasonably available to Developer (if
available to City) which is necessary to procure such Permits and Approvals and utility access
agreements. Any such accommodation by City shall be without prejudice to, and shall not
constitute a waiver of, City's rights to exercise its discretion in connection with its governmental
functions. Developer shall reimburse City, within thirty (30) Business Days after City's written
demand, for all actual, documented out-of-pocket cost and expenses paid by the City to the City's
outside technical consultants (other than City's Consultant and City's employees), such as
architects and engineers, in connection with City's assistance in obtaining any such Permits and
Approvals and utility access agreements; provided, however, that any reimbursable cost or
expense exceeding One Thousand Dollars ($1,000.00) individually, and all reimbursable costs or
expenses exceeding Five Thousand Dollars ($5,000.00) in the aggregate for any discrete task or
component, shall require the Developer's prior written approval. The City's failure to obtain
Developer's prior written approval shall relieve Developer of any obligation to reimburse the City
for such unapproved costs or expenses. In addition, the City hereby agrees to furnish Developer,
on or by the fifth (51) Business Day of each month, with a monthly financial report detailing, with
specificity, expenditures by the City Consultant for the immediately preceding month. Developer
shall have the right to audit all City Consultant expenditures from time to time.
12.3 Prior to Commencement of Construction of the Park/Streetscape
Improvements, Developer shall cause the Contractor to furnish to City a payment bond ("Payment
Bond") and performance bond ("Performance Bond") naming the City and Developer as co -
obligees, substantially in the form attached as Exhibit "M" hereto (with any modifications approved
in advance by the City), issued by a surety satisfying the bonding requirements set forth in Exhibit
"N" attached hereto, guaranteeing the performance of the Contractor under that certain
guaranteed maximum price contract for the construction of the Park/Streetscape Improvements.
If the Contractor fails to complete the construction of the Park/Streetscape Improvements as
required by this Agreement, (i) the City may make demand upon the surety to perform its
obligations under the Payment Bond and Performance Bond, including completion of the work; or
(ii) in the alternative and provided that same does not render the Payment Bond and Performance
Bonds void or otherwise voidable by the surety, the City may take over and complete the work,
or any portion thereof, by its own devices, by entering into a new contract or contracts for the
completion of the work, or using such other methods as in the City's reasonable opinion shall be -
required for the proper completion of the work, including succeeding to the rights of the Devejbper
and/or Contractor. Subject to the terms and conditions of the Payment Bond and the Perfor ance
Bond, as applicable, the City may also charge against the Performance Bond and Paymen ' 06d
f S
16 cc,
_
49127872,13
all fees and expenses for services incidental to ascertaining and collecting losses under the
Performance Bond and Payment Bond including, without limitation, accounting, engineering, and
legal fees, together with any and all costs incurred in connection with renegotiation of the
Agreement. The Contractor shall have the right to reduce the face value of the Payment Bond
and Performance Bond on a calendar quarter basis as construction of the Park/Streetscape
Improvements progresses to reflect then -remaining costs of Substantially Completing the
Park/Streetscape Improvements.
13. Commencement of Construction of the Park/Streetscape Improvements.
13.1 Developer shall at its expense (a) Commence Construction of Phase 1 of
the Park/Streetscape Improvements no later than ninety (90) Business Days after Developer
obtains (i) Final Approval of the Project Zoning Approvals, or (ii) Final Approval of all Permits and
Approvals for the Park/Streetscape Improvements, whichever occurs last, and (b) thereafter
continue to prosecute construction of the Park/Streetscape Improvements with reasonable good
faith diligence and continuity to completion. In the event the 74'h Street design feature depicted in
the Park/Streetscape Concept Plan is approved by the HPB and is approved as part of the Final
Plans and Specifications, such design feature shall be completed as part of Phase 1 of the
Park/Streetscape Improvements.
13.2 During the construction of the Project and the Park/Streetscape
Improvements, the City shall provide the following construction staging, storage, use and
construction parking accommodations to the Developer and the Contractor at no cost or expense
to the Developer or the Contractor:
(a) During construction of the Park/Streetscape Improvements, the
Developer and its contractors will have the right to use the areas within Phases 1 and 2 of the
Park/Streetscape Improvements as staging areas and lay -down yards in connection with the
construction of the Park/Streetscape Improvements.
(b) During construction of the Project, the Developer and its contractors
will have the right to use the area within Phase 2 of the Park/Streetscape Improvements as staging
areas and lay -down yards in connection with the construction of the Project.
(c) The City will budget and appropriate, from the General Fund, the
amounts necessary to pay the Parking Department for up to 100 monthly parking passes at the
then -prevailing standard rates, for use by the Developer and its contractors, during construction
of the Park/Streetscape Improvements and the Project or any phase or portion thereof, up to the
aggregate not -to -exceed amount of Three Hundred Thousand Dollars ($300,000.00) (the "Not -to -
Exceed Amount'). Once the Not -to -Exceed Amount has been expended, Developer shall be
solely responsible for making appropriate parking arrangements for its employees, contractors
and their respective employees. Developer and its contractors may use such monthly parking
passes at the following City -owned parking lots, provided such parking lots are then being
operated as municipal parking lots:
i. Collins Avenue and 75th Street (Lot 106). A maximum of 25
Developer/contractor parking spaces may be utilized at this location
at any time, with the remainder of the lot to be made available for
parking for the general public. No Developer/contractor parkip :_ ay
occur on this lot on weekends or legal holidays.
17
49127872;13 F /
ii. 299 7211 Street (Lot 92). Parking will be made available until such
time as the City commences construction of a City parking garage at
this location. No limitation on the number of Developer/contract
parking spaces that may be used at this lot and no restrictions on
weekend or holiday use; however, the City's parking director retains
discretion to limit Developer/contractor parking on this lot to not less
than 25 parking spaces at any given time if he/she determines, based
on documented parking counts and other objective data, that such
limitation is necessary to satisfy public parking demand on the lot.
iii. 8040 Collins Avenue (Lot 108). No limitation on the number of
Developer/contract parking spaces that may be used at this lot and
no restrictions on weekend or holiday use, except as necessary to
accommodate valet use as provided in Section 13.3 of this
Agreement.
iv. 8300 Collins Avenue (Lot 109). No limitation on the number of
Developer/contract parking spaces that may be used at this lot and
no restrictions on weekend or holiday use.
v. Others. Such additional City lots in the general vicinity of the
Development Site as the City may designate from time to time, with
such limitations and restrictions, if any, as agreed to by the City and
Developer.
13.3 City, through its valet concessionaire, will operate the Collins Avenue and
75th Street parking lot (Lot 106) and the 8040 Collins Avenue parking lot (Lot 108) for valet
purposes on Saturdays, Sundays, and legal holidays or as otherwise agreed to by the Developer
and the City, commencing upon the Commencement of Construction of Phase 1 of the
Park/Streetscape Improvements, and will establish and maintain discounted pricing for City
residents comparable to the differential pricing in favor of City residents at other City -owned
parking lots. Developer agrees to reimburse the City for 75% of the actual, documented, out-of-
pocket losses, if any, sustained by the City for such valet operations at Lots 106 and 108, up to a
maximum of One Hundred Thousand Dollars ($100,000.00) in the aggregate, until the later of (i)
Substantial Completion of Phase 1 of the Park/Streetscape Improvements, or (ii) four (4) years
following the Effective Date of this Agreement.
13.4 In addition, if the City adopts a suitable amendment to the City Code that
permits the construction of a temporary gravel or stone parking lot on one or more of the vacant
North Beach "West Lots," and exempts such temporary parking lot from compliance with the
temporary parking lot standards of Section 130-70 of the City Code, then the Developer will, at its
sole cost and expense, construct such gravel or stone parking lot with chain -link perimeter
construction fencing for use as overflow valet parking and as temporary construction parking for
the Project and the Park/Streetscape Improvements in support of the parking arrangements
contemplated by Sections 13.2(c) and 13.3 of this Agreement.
13.5 During the construction of the Park/Streetscape improvements, Developer
shall sequence its work to ensure that at least one continuous beachwalk path is maintained
running north and south through the Park/Streetscape Site, for the benefit of the general p Wier
Notwithstanding the foregoing, the Developer may (with prior approval from the City or,
close the beachwalk access for periods not to exceed ten (10) consecutive calendar d sYai_any
18 49127872;13
given time, at the City Manager's reasonable discretion, for the purpose of accommodating
unusual construction activities that may require such closure.
14. Substantial Completion of Construction of the Park/Streetscape Improvements.
14.1 Developer shall Substantially Complete the construction of the
Park/Streetscape Improvements in Phases in accordance with the construction schedule set forth
in Section 42 of this Agreement. Substantial Completion of the Park/Streetscape Improvements
shall be accomplished in a diligent manner, and final completion of the Construction of the
Park/Streetscape Improvements, including but not limited to completion of all punch -list items,
shall be accomplished in a diligent manner thereafter, in each case in a good and worker like
manner, in substantial accordance with the Plans and Specifications (with no Material,
Modifications except as expressly permitted herein), in accordance with all applicable
Requirements and, except as provided in Section 23, at Developer's sole cost and expense.
14.2 Upon Substantial Completion of the Park/Streetscape Improvements or
any Phase thereof, Developer shall furnish City with the following:
(a) certification of the architect (certified to City on the standard AIA
certification form) that it has examined the Plans and Specifications and that, in its professional
judgment, after diligent inquiry, the Park/Streetscape Improvements (or the relevant Phase
thereof, as applicable) have been Substantially Completed in accordance with the Plans and
Specifications applicable thereto and, as constructed, the Park/Streetscape Improvements
comply with all applicable construction Requirements;
(b) if Requirements require the same, a copy or copies of the temporary
certificates of occupancy and/or certificates of completion for the Park/Streetscape Improvements
(or the relevant Phase thereof, as applicable) issued by the City of Miami Beach Building
Department;
(c) lien waivers in form and substance reasonably satisfactory to City
from the Contractor and any other contractor, subcontractor, supplier or materialman retained by
Developer in connection with the construction of the Park/Streetscape Improvements, evidencing
that such persons have been paid in full for all work performed or materials supplied in connection
with the construction of the Park/Streetscape Improvements; and
(d) a complete set of "as built" plans and a survey showing the
Park/Streetscape Improvements (or the relevant Phase thereof, as applicable) as Substantial
Completed. City shall have an unrestricted license to use such "as built' plans and survey for any
purpose related to the Park/Streetscape Site without paying any additional cost or compensation
therefor, subject to copyright and similar rights of the architect to prohibit use of designs for
purposes unrelated to the Park/Streetscape Site, as such rights exist in law or may appear in the
architect's contract, and subject to applicable public records laws. The foregoing requirement with
respect to "as built" plans shall be satisfied by Developer furnishing to City, at Developer's
expense, a complete set of Plans and Specifications, with all addenda thereto and change orders
in respect thereof, marked to show all changes, additions, deletions and selections made during
the course of the construction of the Park/Streetscape Improvements up to Substantial
Completion. i—
19
49127872;13
14.3 Upon Developer's delivery to City of items 14.2(a) through (d) above, the
Park/Streetscape Improvements shall be deemed to be Substantially Complete and City shall be
deemed to have accepted the Park/Streetscape Improvements in their then condition.
15. Not Used.
16. Compliance with Requirements; Construction Standards
16.1 Notwithstanding anything to the contrary contained herein, the Plans and
Specifications shall comply with all applicable Requirements. It is Developer's responsibility to
assure such compliance. City's approval in accordance with this Section 16 of any Plans and
Specifications shall be deemed to be a determination by City that the Plans and Specifications so
approved are in substantial conformity with this Agreement, but shall not be, and shall not be
construed as being, or relied upon as, a determination that such Plans and Specifications comply
with other applicable Requirements, including, without limitation, any Requirements providing for
the review and approval of the Plans and Specifications by any governmental authority (in its
governmental capacity as opposed to its proprietary capacity).
16.2 In connection with any work related to the construction of the
Park/Streetscape Improvements, Developer shall comply promptly with all Requirements. No
consent to, approval of or acquiescence in any plans or actions of Developer by City, in its
proprietary capacity, or City's designee shall be relied upon or construed as being a determination
that such are in compliance with the Requirements, or, in the case of construction plans, are
structurally sufficient, prudent or in compliance with the Requirements. Failure of this Agreement
to address a particular governmental or regulatory permit, condition, term or restriction shall not
relieve the Developer of the necessity of complying with the Laws governing said permitting
requirements, conditions, term or restriction.
17. Not Used.
CITY PARTICIPATION
18. City's Right to Use Field Personnel. City reserves the right, at its sole cost and
expense, to maintain on site-representative(s) at the Park/Streetscape Site to observe the
progress of the construction of the Park/Streetscape Improvements (provided, however, that City
shall be entitled to maintain additional on -site representatives from time to time to the extent
reasonably necessary to perform such progress reviews), and Developer agrees to provide
access to the Park/Streetscape Site for such limited purpose, including, without limitation, access
to the preparation work and work in progress wherever located. No such progress review by the
City's on -site representative(s) shall impose upon City responsibility or liability for any failure by
Developer to observe any Requirements or safety practices in connection with such construction
work, or constitute an acceptance of any work which does not comply with the provisions of this
Agreement, and no such progress review shall constitute an assumption by City of any
responsibility or liability for the performance of Developer's obligations hereunder, nor any liability
arising from the improper performance thereof. The City's on -site representative(s) shall not
interfere with any construction work being performed at the Park/Streetscape Site, shall comply
with all safety standards and other job -site rules and regulations of Developer, and shall make
entry upon the Park/Streetscape Site in its "as -is" condition, with all faults, whether latent or
apparent. The City's on -site representative(s) will observe the progress of the construction of the
Park/Streetscape Improvements only. Further, the City shall designate, by v,/ritten-n ice to
Developer, one on -site representative as the City's principal representative indiyidthe
f �A
f
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49127872;13 �4%
"City's Consultant"). The City's Consultant shall serve as Developer's direct point of contact with
the City for construction matters regarding the Park/Streetscape Improvements and shall be
responsible for coordinating all progress reviews by the City's other representative(s) with
Developer under this Section 18 and gathering and submitting to Developer all comments
provided by such other representative(s). The City's on -site representative(s) shall communicate
only with the City's Consultant and shall make only such communications as are reasonably
necessary to enable the City's on -site representative to conduct its investigations under this
Section 18. In no event shall the City's Consultant or the other on -site representative(s) give
directions to Developer, to the Developer's representative, or to any member of the Developer's
construction team. Developer shall endeavor to provide a reasonable work area for use by the
City's Consultant and on -site representative(s) during such progress reviews as is customarily
provided at similar construction sites for such .purposes. All expenses incurred by City's
Consultant and on -site representative(s) shall be paid by City.
19. City's Right to Notice, Access and Review.
19.1 Developer acknowledges that City has appointed the City's Consultant as
the City's consultant in connection with the construction of the Park/Streetscape Improvements in
accordance with the terms of this Agreement. In connection therewith, Developer agrees to
cooperate with the reasonable requests of the City's Consultant. In furtherance thereof, Developer
agrees that the City's Consultant, and its authorized representatives, shall have such rights of
notice, access and review with respect to the Park/Streetscape Improvements and the
Construction Agreements as is reasonably necessary to achieve the foregoing (including, but not
limited to verifying on City's behalf that the construction of the Park/Streetscape Improvements is
being conducted in accordance with the terms hereof), including, without limitation, the following:
(a) the opportunity for attendance by the City's Consultant at regularly
scheduled construction work status meetings between the Developer and the Contractor (which
Developer will endeavor to have scheduled not less frequently than once each month following
Commencement of Construction until Substantial Completion of the Park/Streetscape
Improvements) and at any special meetings which Developer deems necessary in its reasonable
discretion as to change orders, delays and other material issues concerning the Park/Streetscape
Improvements;
(b) the inspection by the City's Consultant of all construction work (in
accordance with the provisions of Section 18);
(c) the opportunity for attendance by the City's Consultant at the design
presentations given to Developer for the Park/Streetscape Improvements;
(d) upon the City's prior written request, the delivery by Developer to
the City's Consultant of a copy of:
(i) the executed contract between Developer and the
Contractor for the Park/Streetscape Improvements;
(ii) the Plans and Specifications (and modifications thereto,
with such modifications being clearly indicated, by "ballooning", highlighting, or blacklining on the
Plans and Specifications or describing in writing in sufficient detail in a memorandum
accompanying such modified Plans and Specifications to be provided following Subst�int(a
49127872,13
Completion of the Park/Streetscape Improvements), working and other drawings, renderings,
blueprints, specifications, layouts and change orders; and
(iii) all insurance certificates required by Exhibit "N" of this
Agreement.
To the extent the exercise of the City's rights hereunder requires the opportunity for review of any
documents or the opportunity for participation in any meetings, as determined by Developer in its
reasonable discretion, Developer agrees, without request therefor by City, to promptly provide
copies of such documents or notice of such meetings to City and the City's Consultant, as
applicable, after receipt of the same by Developer and reasonably in advance of any meetings to
allow for appropriate travel arrangements to the extent practical under the circumstances. If City's
Consultant is not in attendance, the meeting will proceed and, upon the City's prior written request,
Developer will provide City's Consultant with minutes of the meeting. The City's Consultant shall
not interfere with any construction work being performed at the Park/Streetscape Site and shall
comply with all safety standards and other job -site rules and regulations of Developer and shall
make entry upon the site in its as -is condition, with all faults, whether latent or apparent. The City
shall require the City's Consultant to maintain, at no cost to the Developer, commercial general
liability insurance naming the City and the Developer as additional insureds.
19.2 Prior to the Commencement of Construction of the Park/Streetscape
Improvements, Developer shall provide to City a construction schedule for each Phase of the
Park/Streetscape Improvements, which schedule shall be prepared using the critical path method
("CPM"); such schedule, as it shall be amended from time to time in accordance with the
Construction Agreements, shall be referred to as the "CPM Schedule"), including a CPM network
diagram, for use in scheduling and controlling the construction of the Park/Streetscape
Improvements. Developer shall, upon the City's prior written request, promptly provide to the
City's Consultant information copies of the CPM Schedule. The CPM Schedule shall (1) be
revised by Developer whenever there is a material variance in the progress of the construction of
the Park/Streetscape Improvements from the then -current CPM Schedule and otherwise at
appropriate intervals, but no more frequently than monthly unless Developer elects, in its sole
discretion, to undertake more frequent updates; and (2) provide for expeditious and practicable
execution of the construction of the Park/Streetscape Improvements. Developer shall promptly
inform the City's Consultant of any deviation from the CPM Schedule which, in Developer's good -
faith determination, is likely to cause a material delay in the Substantial Completion of the
Park/Streetscape Improvements (as shown on the current CPM Schedule).
20. Not Used.
21. Construction Agreements; Required Clauses.
21.1 All Construction Agreements which provide for the performance of labor for
the construction of the Park/Streetscape Improvements shall, to the extent applicable to the scope
of work governed by such Construction Agreement, include the following provisions (or language
substantially similar thereto which is approved in advance by City); provided, however, that any
Construction Agreement having aggregate payments of Five Hundred Thousand Dollars
($500,000.00) or less shall not be required to include the provisions set forth in paragraph (i)
below:
(a) "Contractor shall provide, prior to the commencement f it sflrtio
of the work, and maintain during the performance thereof, the insurance set forth - _-Exit N 1
22-
49127872;13
attached hereto and incorporated by reference herein. Such Contractor shall procure an
appropriate clause in, or endorsement on, any policy of insurance carried by it pursuant to which
the insurance company waives subrogation or consents to a waiver of right of recovery consistent
with the release, discharge, exoneration and covenants not to sue contained herein. Original
certificates of insurance shall name the City of Miami Beach, Florida (and any successor City), as
additional insureds (the "Certificate of Insurance"), and shall be furnished to Developer by the
Contractor prior to Commencement of Construction of the Park/Streetscape Improvements,
denoting all insurance required of the Contractor pursuant to the terms of the contract. The
Contractor shall secure an original Certificate of Insurance from each of its sub -contractors with
limits of liability appropriate to such sub -contractor's scope of work";
(b) "Contractor hereby waives all rights of recovery, claims, actions or
causes of action against the City of Miami Beach, Florida (and any successor City), and their
respective elected and appointed officials (including, without limitation, the City's Mayor and City
Commissioners), directors, officials, officers, shareholders, members, employees, successors,
assigns, agents, contractors, subcontractors, experts, licensees, lessees, mortgagees, trustees,
partners, principals, invitees and affiliates, for any loss or damage to property of Contractor which
may occur at any time in connection with the Park/Streetscape Improvements, except to the
extent arising out of or related to the gross negligence or willful misconduct of the City, the City's
Consultant, the City's officers, directors, officials, employees, contractors, or agents, and/or any
of the City Indemnified Parties.";
(c) "To the fullest extent permitted by law, Contractor shall and does
hereby indemnify and hold harmless the City of Miami Beach, Florida, and its respective officers
and employees, from liabilities, damages, losses and costs including, but not limited to,
reasonable attorneys' fees, to the extent caused by the negligence, recklessness or intentional
wrongful misconduct of Contractor and persons employed or utilized by Contractor in the
performance of this Agreement. Notwithstanding anything to the contrary, Contractor shall not be
required to indemnify, defend or hold the City of Miami Beach, Florida or any of its respective
officers and employees from liabilities, damages, losses or costs to the extent caused by the acts,
omissions, negligence of the City of Miami Beach, Florida or any of its officers or employees. The
indemnification obligations set forth in this Section 14 shall survive the termination and/or
expiration of this Agreement."
(d) "Developer shall have the right to assign to City, subject and
subordinate to the rights of Lender, the Construction Agreement and Developer's rights
thereunder, at the City's request, without the consent of the Contractor, and (2) that without the
necessity of such assignment and without thereby assuming any of the obligations of Developer
under the Construction Agreement occurring prior to such assignment and/or purchase order,
except for Developer's payment obligations, City shall have the right to enforce the full and prompt
performance by the Contractor of such Contractor's obligations under the Construction
Agreement; and (3) the City is a third party beneficiary of the Construction Agreement";
(e) "Contractor agrees to comply with all laws and requirements
applicable to Contractor and the Park/Streetscape Improvements";
(f) "Upon an Event of Default by Developer resulting in a termination
of that certain Development Agreement between Developer and City, dated as of July 31, 2019,
at the option of the City of Miami Beach, Florida, subject and subordinate to thR Frghts _ctf Lender,
23
49127872,13
this agreement shall be terminated or Contractor will honor this agreement as if this agreement
had been originally entered into with the City of Miami Beach, Florida.";
(g) "Nothing contained in this contract is in any way intended to be a
waiver of the prohibition on Contractor's ability to file liens against property of the City of Miami
Beach, Florida, or of any other constitutional, statutory, common law or other protections afforded
to public bodies or governments.";
(h) "Upon an Event of Default by Developer resulting in a termination
of that certain Development Agreement between Developer and City, dated as July 31, 2019, all
covenants, representations, guarantees and warranties of Contractor hereunder shall be, subject
and subordinate to the rights of Lender, deemed to be made for the benefit of the City of Miami
Beach, Florida, (and the City of Miami Beach, Florida, shall be deemed to be a third party
beneficiary hereof) and shall be, subject and subordinate to the rights of Lender, enforceable by
the City of Miami Beach, Florida.";
(i) "Unless and until the City of Miami Beach, Florida, expressly
assumes the obligations of Developer under this contract (and then only to the extent the same
arise from and after such assumption), the City of Miami Beach, Florida, shall not be a party to
this contract and will in no way be responsible to any party for any claims of any nature whatsoever
arising or which may arise in connection with such contract."; and
0) "Contractor hereby agrees that notwithstanding that Contractor
performed work at the Park/Streetscape Site or any part thereof, the City of Miami Beach, Florida
shall not be liable in any manner for payment or otherwise to Contractor in connection with the
work performed at the Park/Streetscape Site, except to the extent the City of Miami Beach,
Florida, expressly assumes the obligations of Developer hereunder (and then only to the extent
such obligations arise from and after such assumption)."
(k) "Contractor warrants that all materials and equipment included in
the work will be new except where indicated otherwise in Permit Plans and Specifications or the
Construction Agreement (collectively, the "Contract Documents"), and that such work will be of
good quality, free from improper workmanship and defective materials and in conformance with
the Contract Documents, and that such work will provide proper and continuous service under all
conditions of service required by, specified in, or which may be reasonably inferred from the
Contract Documents. With respect to the same work, Contractor further agrees to correct all work
found by Developer or the City of Miami Beach, Florida to be defective in material and
workmanship or not in conformance with the Contract Documents for a period of one year from
Substantial Completion of the work or for such longer periods of time as may be set forth with
respect to specific warranties contained in the trade sections of the Contract Documents, as well
as any damage to the work resulting from defective design, materials, equipment, or workmanship
which develop during construction or during the applicable warranty period. Contractor shall
collect and deliver to Developer and the City of Miami Beach, Florida any specific written
warranties given by subcontractors or others as required by the Contract Documents (and such
warranties shall be in addition to, and not substitutes for, those warranties mandated to be
obtained pursuant to the Contract Documents). All such warranties shall commence upon
Substantial Completion or such other dates as provided for in the Contract Documents, or unless
the warranted work is not completed or has been rejected, in which case the warranty f r-INEl -work
shall commence on the completion or acceptance of the work."
24 j
49127872,13 -
22. Not Used.
23. Fees.
23.1 City Fees. The Parties acknowledge that the Project and the
Park/Streetscape Improvements may require payment of certain fees, which include, without
limitation, application fees, notice fees, development review fees, building permit fees, inspection,
certification, impact, concurrency, transportation/mobility and connection fees, and other fees that
the City may levy under applicable Laws (including, without limitation, water and sewer fees and
all fees relating to HPB, Design Review Board, and/or Planning Board reviews), as well as those
fees, to the extent applicable, listed in the most current edition of the City of Miami Beach Building
Department Fee Schedule adopted by the City, which fee schedule is hereby incorporated. by
reference and made a part of this Agreement (collectively, the "City Fees"). The Parties further
acknowledge that, under the current City Code, the application fees for the Project Zoning
Applications and the Park/Streetscape Zoning Application total a maximum of $80,000. Developer
shall remain responsible for the City Fees notwithstanding any and all modifications or changes
in price structure as imposed by the City. The Parties assume payment responsibility as follows:
(a) Zoning Application Fees. In consideration for the Developer's
commitment to complete the Park/Streetscapes Improvements and in recognition of Developer's
prior payment of $206,835.00 (as per invoice number 00091435) for application fees in connection
with the Project Zoning Applications (the "Fee Overage Balance"), the City assumes payment
responsibility for the up to $80,000.00 in application fees required for the Project Zoning
Applications and the Park/Streetscape Zoning Application. The City shall accept the Developer's
filing of the Project Zoning Applications and the Park/Streetscape Zoning Application without
requiring payment of any application fees from Developer and shall diligently process the same
pursuant to the requirements of the City Code through Final Approval of the Project Zoning
Approvals and the Park/Streetscape Zoning Approval.
(b) Other Project City Fees. Developer assumes payment
responsibility for any and all other City Fees required for the construction of the Project.
(c) Other Park/Streetscape City Fees. Developer is solely responsible
for payment of all City Fees for the Park/Streetscape Improvements other than the application
fees for the Park/Streetscape Zoning Application; provided, however, that the City hereby agrees
to waive all City fees relating to the Park/Streetscape Improvements, to the extent that any such
waiver is currently permitted under the City Code (that is, without requiring any legislation to
provide for any such waiver). The Developer shall not be obligated to pay any City Fees for the
Park/Streetscape Improvements that can currently be waived under the City Code, and the City
shall accept Developer's filing of applications for Permits and Approvals for the Park/Streetscape
Improvements, and process the same to Final Approval, without payment of any such City Fees
by Developer.
(d) Future City Fee Waivers and Refunds. The City may, in its sole and
absolute discretion, adopt amendments to the City Code that permit the waiver or refund of all or
part of the City Fees for the Project. Promptly following the adoption of such amendments, the
City shall waive all applicable City Fees to be paid for the Project to the maximum extent permitted
by such amendments, and, with respect to the Fee Overage Balance and all other City- Feet
previously paid by Developer, the City shall refund Developer the cost of all such appli
Fees to the maximum extent permitted by such amendments. sy[j art,
,R <e
25 <<:%
49127872;13
23.2 Non -City Fees. Developer shall assume responsibility for payment of all
fees charged by governmental authorities relating to the Project, and the City hereby assumes
responsibility for payment of all fees charged by governmental authorities relating to the
Park/Streetscape Improvements.
24. Notice and Right to Cure Developer's Defaults.
24.1 City shall give to the Recognized Mortgagee a copy of each Developer
Default Notice at the same time as it gives such notice to Developer, and no such notice shall be
deemed effective with respect to any Recognized Mortgagee unless and until a copy thereof shall
have been so received by or refused by such Recognized Mortgagee, as applicable. All such
notices to a Recognized Mortgagee shall be sent as set forth in Section 47 of this Agreement.
City shall also give the Recognized Mortgagee notice (each, a "Notice of Failure to Cure') in the
event Developer fails to cure an Event of Default within the cure period, if any, provided in this
Agreement for such cure, promptly following the expiration of such cure period.
24.2 The Recognized Mortgagee shall have a period of thirty (30) Business
Days after receipt of the Notice of Failure to Cure, in the case of any Event of Default, to (1) cure
the Event of Default referred to in the Notice of Failure to Cure, or (2) cause it to be cured, subject
to the same additional time periods provided to Developer pursuant to the provisions of Section
42 or elsewhere in this Agreement, unless such default is not susceptible of being cured by a
Recognized Mortgagee. Nothing contained herein shall be construed as imposing any obligation
upon any Mortgagee to so perform or comply on behalf of Developer.
24.3 City shall accept performance by a Mortgagee of any covenant, condition
or agreement on Developer's part to be performed hereunder with the same force and effect as
though performed by Developer.
24.4 Notwithstanding any other provision of this Agreement, no payment made
to City by any Mortgagee shall constitute the Mortgagee's agreement that such payment was, in
fact, due under the terms of this Agreement.
24.5 Notwithstanding the foregoing provisions of this Section 24, if a Recognized
Mortgagee fails (for any reason) to cure any Event of Default by Developer within sixty (60) days
following receipt of the Notice of Failure to Cure regarding such Event of Default, then City may,
but shall be under no obligation to, perform the obligation of Developer the breach of which gave
rise to such Event of Default (including, without limitation, the performance of any of the
obligations of Developer under any Construction Agreement), without waiving or releasing
Developer from its obligations with respect to such Event of Default. Developer hereby grants
City access to the Park/Streetscape Site in order to perform any such obligation. Any amount
paid by City in performing Developer's obligations as provided in this Section 24, including, without
limitation, all costs and expenses incurred by City in connection therewith, shall be reimbursed to
City within thirty (30) days following City's demand therefor, together with a late charge on
amounts actually paid by City, from the date of notice of any such payment by City to the date on
which payment of such amounts is received by City.
24.6 If there is more than one Recognized Mortgagee, only that Recognized
Mortgagee, to the exclusion of all other Recognized Mortgagees, whose Recognized Mortg�e is
most senior in lien shall be recognized as having rights under this Section 24, unle .such fifs
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49127872;13
priority Recognized Mortgagee has designated in writing to City a Recognized Mortgagee whose
Mortgage is junior in lien to exercise such right.
CONDITIONS PRECEDENT TO ISSUANCE OF CERTIFICATE OF OCCUPANCY
25. Conditions Precedent to Issuance of Certificate of Occupancy. The Developer
acknowledges that conveyance of the Park/Streetscape Improvements Parcel and completion
and conveyance of the Park/Streetscape Improvements is additional and essential consideration
for the City's vacation of the City Parcel. Accordingly, (i) the City shall not issue a temporary
certificate of occupancy and/or a temporary certificate of completion for the Project (in whole or
in part), until the Developer has Substantially Completed construction of Phase 1 of the
Park/Streetscape Improvements, or the City receives any funds under the Surety Bond (or the
Recognition Agreement, as applicable) or under the Payment Bond and/or Performance Bond,
whether or not construction of Phase 1 of the Park/Streetscape Improvements has been
completed by the City; and (ii) the City shall not issue a final certificate of occupancy and/or a final
certificate of completion for the Project (in whole or in part) until the City has issued a final
certificate of occupancy and/or a final certificate of completion for both Phases of the
Park/Streetscape Improvements, or the City receives any funds under the Surety Bond (or the
Recognition Agreement, as applicable) or under the Payment Bond and/or Performance Bond,
whether or not construction of the Park/Streetscape Improvements has been completed by the
City.
26. Developer's Reserved Rights.
26.1 Beachfront Concession. As part of the consideration for the completion of
the Park/Streetscape Improvements, and in an effort to incentivize Developer to attract a quality
hotel and stimulate economic development in the Ocean Terrace area, if a hotel is ultimately
operated as part of the Project that is substantially similar in quality of operations and level of
service provided, as of the Effective Date, at the Delano Hotel (1685 Collins Avenue), the Nautilus
Hotel (1825 Collins Avenue), or the Shelborne Hotel (1801 Collins Avenue) (the "Hotel"), then in
such event, Developer shall have the right to utilize, along with City's beachfront concessionaire
for the concession area located between 72nd Street and 77th Street (the "Ocean Terrace
Concession Area"), up to 175 linear feet of the concession area located between 74th Street and
75th Street (the "Enhanced Service Area"), for a beachfront concession for the Hotel's guests,
visitors, and patrons.
26.2 The intent of the Enhanced Service Area is to permit the Developer and/or
the Hotel to enter into an agreement with City's then -existing concessionaire for the Ocean
Terrace Concession Area ("City's Concessionaire"), which concessionaire, as of the Effective
Date of this Agreement, is Boucher Brothers Miami Beach, LLC, to provide upgraded beach
equipment offerings and food & beverage services not otherwise part of the standard concession
services offered by City's Concessionaire within the Ocean Terrace Concession Area. Any such
beachfront concession within the Enhanced Service Area shall be operated by City's
Concessionaire for the Ocean Terrace Concession Area.
26.3 The terms for the Enhanced Service Area shall be memorialized in City's
agreement with City's Concessionaire (or, in the case of the current concessionaire, Boucher
Brothers Miami Beach, LLC, via an amendment to the Concession Agreement da-iy1 . 21,
2019), prior to the issuance of a temporary certificate of occupancy for the Hotel. S ;term, II
provide (i) the right for the Hotel to brand uniforms of Hotel staff providing f. ,rl
�&,,b,(er��
services, and to brand beach equipment and/or signage located within the En anobl, ry
27
49127872;13
Area; and (ii) for the City to continue to receive, with respect to standard beach equipment rentals
and pre -packaged food services offered by the City's Concessionaire within the Enhanced
Service Area, the same percentage of gross receipts the City would otherwise receive for such
standard services pursuant to the City's concession agreement with the City's Concessionaire for
the Ocean Terrace Concession Area.
26.4 Raised Pavilion/Cafe. Developer shall have the right to construct and
operate a raised pavilion/cafe within the Park/Streetscape Site, generally consistent with the
sidewalk cafe permit requirements as set forth in Chapter 82 of the City Code, and in accordance
with the minimum standards, criteria, and conditions set forth in Sections 82-385 to 82-388 of the
City Code, provided such pavilion/cafe is approved by the HPB. This Section shall survive the
termination or expiration of this Agreement.
26.5 Parking Space Removal. Developer reserves the right, if approved by the
HPB, to eliminate those certain parking spaces located along Ocean Terrace between 73rd Street
and 75th Street, and along 73rd Street, 74th Street, and 75th Street between Ocean Terrace and
Collins Avenue. City agrees that such removal shall not require the payment of any fee by
Developer under Section 106-55(h) of the City Code, as the same may be amended from time to
time. This Section shall survive the termination or expiration of this Agreement.
GENERAL PROVISIONS
27. Applications for Development Approvals and Development Permits. This
Agreement contemplates that the Developer will file applications for Development Orders and
Development Permits. The City shall process all Development Permit and Development Order
applications as expeditiously as possible. Notwithstanding the foregoing, Developer shall be
solely responsible for obtaining Final Approval of all Development Orders and Development
Permits for the Project and the Park/Streetscape Improvements.
28. Laws Governinq this Agreement. For the entire term of this Agreement, the City
hereby agrees that the City's Laws and Requirements governing the development of the
Development Site as they exist as of the Execution Date of this Agreement shall govern the
development of the Development Site and the Project during the Term. Notwithstanding the
foregoing, the City may apply subsequently adopted laws or policies to the Development Site and
the Project (particularly as they may relate to quality of life issues such as, but not limited to noise,
litter, and hours of operation) as permitted or required by the Act, including, without limitation,
Section 163.3233(2), Florida Statutes, as same may be amended from time to time; provided,
however, that in no event shall the City apply any subsequently adopted laws or policies in a
manner that requires any alterations or modifications to the Project or the Park/Streetscape
Improvements or any amendments or modifications to the Project Zoning Approvals or the
Park/Streetscape Zoning Approval, or in a manner that renders the Project or the
Park/Streetscape Improvements "nonconforming" as to any Laws or Requirements. Without
limiting the generality of the foregoing, Developer expressly reserves the right to challenge any
subsequently adopted changes to the Laws or Requirements based on, among others, (i)
equitable estoppel, vested rights, or other common law principles; or (ii) rights that may accrue
under Chapter 70, Florida Statutes (2018) or any successor or similar laws. In addition, the
expiration or termination of this Agreement (other than termination for an uncured Developer
Event of Default) shall not act to waive, limit, or invalidate any vested right (or equitable estoppel
defense) that may have accrued to Developer pursuant to or in furtherance of thi -Agee ent
prior to such expiration or termination. >`
�1
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49127872;13
29. Compliance with Local Regulations Regarding Development Permits. This
Agreement is not and shall not be construed as a Development Permit, Development Order,
approval or authorization to commence any development, fill, or other land modification. The
Developer and the City agree that the failure of this Agreement to address a particular permit,
approval, procedure, condition, fee, term or restriction in effect on the Execution Date of this
Agreement shall not relieve Developer of the necessity of complying with the regulation governing
said permitting requirements, conditions, fees, terms or restrictions, subject however to the terms
and provisions of this Agreement.
30. Reservation of Rights. This Agreement shall not affect any rights that may have
accrued to any Party to this Agreement under applicable Laws or Requirements and each Party
hereto reserves any and all of such rights. -
31. Consistency with the City's Comprehensive Plan. The City has adopted and
implemented the Comprehensive Plan. The City hereby finds and declares that the provisions of
this Agreement dealing with the Development Site and the Project are consistent with the City's
Comprehensive Plan and Land Development Regulations (subject to all applicable requirements,
permits and approvals).
32. Concurrencv. Developer shall be solely responsible for obtaining all land use
permits, including, but not limited to, all permits and approvals required pursuant to Section
163.3180, Florida Statutes (2018), with respect to concurrency requirements for roads, sanitary
sewer, solid waste, drainage, potable water, parks and recreation, and schools for the Project (the
"Concurrencv Requirements"). Prior to applying for its full Building Permit for the Project,
Developer shall apply to the appropriate governmental authorities and obtain letters or other
evidence that Developer has satisfied all applicable Concurrency Requirements, and shall
diligently and in good faith obtain such letters or other evidence that the Project meets all
applicable Concurrency Requirements and shall pay such impact fees as may then be due or
applicable to meet Concurrency Requirements for the Project.
33. Books and Records; Audit Rights; Public Records.
33.1 Developer shall at all times during the Term keep and maintain (separate
from any of Developer's other books, records and accounts), accurate and complete records
pertaining to the construction of the Park/Streetscape Improvements in accordance with suitable
accounting principles with such exceptions as may be provided for in this Agreement. City and
its representatives shall have, during normal business hours and upon reasonable advance
notice, access to the books and records of Developer pertaining to the Park/Streetscape
Improvements for the purpose of examination and audit (including copying), including books of
account properly reflecting the construction of the Park/Streetscape Improvements.
33.2 The obligations of Developer under this Section to maintain, and to provide
City and its representatives access to, the books and records related to the Park/Streetscape
Improvements shall survive the expiration of this Agreement for a period of one (1) year.
33.3 The City will be solely responsible for responding to all requests for public
records in accordance with Florida law. In the event that a third party submits a request to the
City for records of the Developer regarding this Agreement, the City shall notify the Developer of
the public records request, to provide Developer the opportunity to determine whether any
documents responsive to the request contain confidential trade secret inf rmation>enitld to
protection from disclosure under Florida law. If the Developer certifies to the ity that artyp'.~cific
29
49127872;13
documents responsive to the request contain confidential trade secrets information (with such
certification specifying the basis for the trade secret assertions, and the steps taken by the
Developer to otherwise protect the confidentiality of such information), City shall withhold the
subject documents, and shall provide the requestor with a copy of the Developer's trade secret
certification. If the requestor objects and continues to make demand for the release of such
records, City shall notify the Developer of the requestor's objection, to permit the Developer to file
an action in a court of competent jurisdiction within fourteen (14) calendar days, seeking a
protective order barring disclosure of any confidential trade secret information. If Developer fails
to file an action for injunctive relief within the time period specified, or fails to submit the trade
secret certification referenced herein, the City shall treat such failure as a waiver of any claim of
trade secret protection, and the City shall thereafter release the document as requested, in
accordance with Florida law.
34. Expedited Arbitration of Development Disputes.
34.1 If Developer or City asserts that a Development Dispute has arisen, such
asserting Party shall give prompt written notice thereof to the other Party and to the Development
Arbitrator.
34.2 The Development Arbitrator shall no later than five (5) Business Days after
receipt of such notice, hold a preliminary, informal meeting with City and Developer in an attempt
to mediate such Development Dispute. If such Development Dispute shall not be resolved at that
meeting, the Development Arbitrator shall at such mediation meeting establish a date, not earlier
than five (5) Business Days after the mediation meeting nor later than twenty (20) Business Days
after the mediation meeting, for a mediation hearing (a "Hearing") to be held in accordance with
this Agreement to resolve such Development Dispute.
34.3 Developer and City shall have the right to make one (1) written submission
to the Development Arbitrator prior to any Hearing. Such submission shall be received by the
Development Arbitrator and the other Party not later than two (2) Business Days prior to the
Hearing date. The parties agree that no discovery (as the term is commonly construed in litigation
proceedings) will be needed and agree that neither Party nor the Development Arbitrator shall
have discovery rights in connection with a Development Dispute.
34.4 Each Hearing shall be conducted by the Development Arbitrator. It is the
intention of the parties that the Hearings shall be conducted in an informal and expeditious
manner. No transcript or recording shall be made. Each Party shall have the opportunity to make
a brief statement and to present documentary and other support for its position, which may include
the testimony of not more than four (4) individuals, two (2) of whom may be outside experts.
There shall be no presumption in favor of either Party's position. Any procedural matter not
covered herein shall be governed by the Amended 1993 edition of the CPR Rules for the
Arbitration of Business Disputes and the Florida Arbitration Code to the extent not inconsistent
with the CPR Rules and this Section.
34.5 The Hearings shall be held in a location selected by the Development
Arbitrator in Miami -Dade County, Florida. Provided the Development Arbitrator is accompanied
by representatives of both Developer and City, the Development Arbitrator may, at its option, visit
the work site to make an independent review in connection with any Develop efit DJspu�e.
30 '`;
49127872;13
34.6 Once it has been determined by the Development Arbitrator or by
agreement of the parties that the disputed matter is a Development Dispute under this Agreement,
the Development Arbitrator shall take into account, in resolving such Development Dispute, such
factors as he deems relevant which are not inconsistent with this Agreement, which in all events
shall include the following factors:
(a) City does not have any approval rights with respect to the matter of
design and decor of the Park/Streetscape Improvements except to the extent the same is
reflected in the Plans and Specifications.
(b) The Park/Streetscape Improvements shall be of first-class quality,
compatible with the quality set forth in the original approved Plans and Specifications (without
regard to changes thereto).
(c) The mutual goal of Developer and City that cost overruns for the
construction of the Park/Streetscape Improvements shall be minimized.
(d) Applicability of any Requirement.
(e) The magnitude of the modification to the previously approved Plans
and Specifications.
(f) The magnitude of the consistency or inconsistency from the
previously approved Plans and Specifications.
34.7 Pending resolution of the Development Dispute, Developer may not
implement the matter which is the subject of such Development Dispute.
34.8 The Development Arbitrator shall render a decision, in writing, as to any
Development Dispute not later than two (2) Business Days following the conclusion of the
Hearings regarding such Development Dispute and shall provide a brief written basis for its
decision not later than five (5) Business Days thereafter. As to each Development Dispute, the
Development Arbitrator's decision shall be limited to (i) whether or not Developer's proposed
modification(s) to the Plans and Specifications is a Material Modification; (ii) whether or not City
has unreasonably failed to approve or give its consent to any modifications to the Plans and
Specifications pursuant to Sections 8, 9, and/or 11; (iii) whether or not Developer has complied
with its obligations or responsibilities set forth in Sections 8, 9, and/or 11; and (iv) whether or not
Developer or City is entitled to any extension of time for performance. The Development Arbitrator
may not award any other or different relief.
34.9 The decision of the Development Arbitrator shall be final and binding on
the Parties for all purposes and may be entered in any court of competent jurisdiction.
34.10 The Parties shall reasonably cooperate to select an independent, neutral,
professional firm having hotel development or construction experience to serve as the arbitrator
(the "Development Arbitrator"). If the Parties cannot agree on the selection of a Development
Arbitrator, then any Party may ask the CPR Institute for Dispute Resolution to select a substitute
who will act as Development Arbitrator of that Development Dispute. The cost of the Development
Arbitrator shall be equally shared by the Parties, but each Party shall bear its own cost cluding
those of its experts and legal fees, associated with the arbitration.
l %
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49127872;13�
i
35. Litigation. Any dispute between the Parties, other than a Development Dispute,
shall be subject to litigation and not arbitration.
36. Effective Date and Duration (Term).
(a) Within fourteen (14) days following approval at two public hearings
and execution by the Parties, the City shall record the 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. The Developer agrees that it shall be responsible for all
recording fees and other customary fees and costs related to the recording of this Agreement as
described in this Section.
(b) This Agreement shall run for an initial term of ten (10) years from
the Effective Date (the "Term"); provided, however, if the Developer completes construction of
Phases 1 and 2 of the Park/Streetscape Improvements within the time periods set forth in Section
42(c) and (d) of this Agreement, then the Term shall automatically be extended (without the need
of any notice to or consent of the City, or being subject to any public hearing) for an additional
eight (8) years, so that the Term of this Agreement shall be a total of eighteen (18) years from the
Effective Date. Except for the automatic eight (8) year extension of the Term set forth above
(which does not require any consent of the City or public hearing): (i) the Term of this Agreement
may be extended only by the mutual consent of the City and the Developer subject to a public
hearing pursuant to Section 163.3225, Florida Statutes; and (ii) consent to any extension of this
Agreement is within the sole discretion of each Party to this Agreement. No notice of termination
shall be required by either Party upon the expiration of this Agreement, and 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.
37. Presently Permitted Development. The development that is presently permitted
on the Development Site, including population densities, and building intensities and height, which
are subject to this Agreement, is more specifically set forth in Exhibit "O" hereto.
38. Public Facilities to Serve the Development Site. A description of the public facilities
that will service the Project of the properties subject to this Agreement, including who shall provide
such facilities; the date any new facilities, if needed, will be constructed; and a schedule to assure
public facilities are available concurrent with the impacts of the development is included as Exhibit
"P" hereto.
39. Public Reservations and/or Dedications. A description of the reservations and/or
dedications of land for public purposes that are proposed under the terms of this Agreement is
included as Exhibit "Q" hereto.
40. Required Development Permits. Attached and made a part hereof as Exhibit "R"
is a listing and description of all local development permits approved or needed to be approved
for the development of the Project.
41. Not Used.
42. Developer Defaults.
Developer hereunder:
49127872;13
Each of the following shall be an
32
"Event of Default" by
� ;E
(a) If Developer shall fail to observe or perform any term, covenant or
condition of this Agreement on Developer's part to be observed or performed and Developer shall
fail to cure or remedy the same within ten (10) Business Days following Developer's receipt of
written notice from the City, with respect to monetary defaults, or within thirty (30) Business Days
following Developer's receipt of written notice from the City with respect to non -monetary defaults
(each, a "Developer Default Notice"). If such non -monetary default is susceptible to cure but
cannot reasonably be cured within said thirty (30) Business Day period, then Developer shall have
any additional sixty (60) Business Day period to cure such failure and no Event of Default shall
be deemed to exist hereunder so long as Developer commences such cure within the initial thirty
(30) Business Day period and diligently and in good faith pursues such cure to completion within
such resulting ninety (90) Business Day period from the date the Developer receives the
Developer Default Notice.
(b) If Developer shall fail to Commence Construction of Phase 1 of the
Park/Streetscape Improvements within ninety (90) Business Days after Developer obtains (i) Final
Approval of the Project Zoning Approvals, or (ii) Final Approval of all Permits and Approvals for
the Park/Streetscape Improvements, whichever occurs last.
(c) If Developer shall fail to Substantially Complete the construction of
Phase 1 of the Park/Streetscape Improvements within forty-eight (48) months after the Effective
Date.
(d) If Developer shall fail to Substantially Complete the construction of
Phase 2 of the Park/Streetscape Improvements within ninety-six (96) months after the Effective
Date.
(e) If Developer shall fail to Substantially Complete the construction of
the Project within ninety-six (96) months after the Effective Date, subject to one automatic twenty-
four (24) month extension if Developer has completed Phases 1 and 2 of the Park/Streetscape
Improvements within the timeframes set forth in this Agreement and has Commenced
Construction of the Project.
(f) If, prior to Substantial Completion of Phase 2 of the
Park/Streetscape Improvements, 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
to the appointment of a receiver or trustee or liquidator of all of its property or the major part
thereof or if all or a substantial part of the assets of Developer are attached, seized, subjected to
a writ or distress warrant, or are levied upon, or come into the possession of any receiver, trustee,
custodian or assignee for the benefit of creditors.
(g) If, prior to Substantial Completion of Phase 2 of the
Park/Streetscape Improvements, Developer shall commence a voluntary case under the Title 11
of the United States Code (the "Bankruptcy Code"); or an involuntary proceeding is commenced
against Developer under the Bankruptcy Code and relief is ordered against Developer, or the
petition is controverted but not dismissed or stayed within one hundred fifty (150) days after the
commencement of the case, or a custodian (as defined in the Bankruptcy Code) is appointed for
or takes charge of all or substantially all of the property of Developer and is not discharged or
dismissed within one hundred fifty (150) days; or Developer commences any other proceedings
under any reorganization, arrangement, readjustment of debt, relief of debtors, diss9 utiGn,
insolvency or liquidation or similar Law of any jurisdiction whether now or hereaft t;:i4''fGt
relating to Developer; or there is commenced against Developer any such proce dyhq-whJch� ,,,
33 �'..
49127872;13
remains undismissed or unstayed for a period of one hundred fifty (150) days; or Developer fails
to controvert in a timely manner any such case under the Bankruptcy Code or any such
proceeding, or any order of relief or other order approving any such case or proceeding is entered;
or Developer consents to or approves of, in any such case or proceeding or the appointment of
any custodian or the like of or for it for any substantial part of its property or suffers any such
appointment to continue undischarged or unstayed for a period of one hundred fifty (150) days.
(h) If, prior to Substantial Completion of Phase 2 of the
Park/Streetscape Improvements, Developer shall assign or transfer its rights and/or delegate the
performance of its obligations under this Agreement to anyone, at any time, other than a Permitted
Transferee without the City's prior written consent and approval, as governed by Section 54.
43. Effect of Cure. Notwithstanding Section 42 or anything else to the contrary,
Developer will not be deemed to be in default of this Agreement for any Event of Default that is
cured by the Developer, by the Recognized Mortgagee, or by the City's receipt of funds for such
Event of Default under the Surety Bond, the Recognition Agreement, or the Payment Bond and/or
Performance Bond, as applicable.
44. Enforcement of Performance; Damages and Termination. In the event the City
shall claim any Event of Default shall have occurred hereunder, the Developer Default Notice
shall state with specificity the provisions of this Agreement under which the Default is claimed,
the nature and character of such Event of Default, the date by which such Event of Default must
be cured pursuant to this Agreement, if applicable, and, if elected by the City, that the failure of
Developer to cure such Default by the date set forth in such notice will result in the City having
the right to terminate this Agreement. Subject to the exclusive remedies set forth in Sections 5(d)
and 12.3 of this Agreement, if an Event of Default occurs hereunder, the City may elect any one
or more of the following remedies as the City's sole and exclusive remedy with respect to such
Event of Default:
(a) Enforce strict performance by Developer; or
(b) Exercise and enforce the City's rights pursuant to each of the
Assignment of Plans, Permits and Approvals and the Assignment
of Construction Agreements; or
(c) Pursue any other remedy available to the City at law or in equity.
In the event City elects to exercise its remedies pursuant to Sections 5(d) and/or 44(b), Developer
shall:
i. Promptly deliver to the City all submittals and
Park/Streetscape Improvements records in their original/native electronic format
(i.e. CAD, Word, BIM, Excel, etc.), any and all other unfinished documents, and
any and all warranties for work, equipment or materials already installed or
purchased, to the extent the same are in Developer's possession;
ii. As directed by the City, transfer or cause the Cot3tr-a or to
transfer title and deliver or demand that the Contractor deliver to th '}11
y1Z.. e
fabricated and non -fabricated parts, work in progress, completed Sr safppl'i
and other material produced or required for the work; and (2) th ort� I'd or
partially completed project records that, had the work been comp) W.6Ad, b
34
49127872,13
required to be furnished to the City, to the extent the same are in Developer's
possession; and
iii. Take any action that may be reasonably necessary, or that
the City may reasonably direct, for the protection and preservation of the property
related to this Development Agreement that is in Developer's possession and in
which the City has or may acquire an interest.
The rights and remedies of the City in this Section 44 shall apply to all Events of Default that fail
to be cured within the applicable cure period or are cured but in an untimely manner, and the City
shall not be obligated to accept such late cure.
In addition, if the City violates, breaches or defaults on any term, covenant, condition or other
provision of this Agreement (a "City Default"), then the Developer shall have all rights and
remedies available to it under this Agreement, at law, and/or in equity (including, without limitation,
an action for specific performance and injunctive relief to enforce the terms, covenants, conditions
and other provisions of this Agreement) against the City as a result of or arising out of such City
Default. The Developer's election of a right or remedy under this Agreement, at law, and/or in
equity with respect to any City Default shall not limit or otherwise affect the Developer's right to
elect any other right or remedy available to it under this Agreement, at law, and/or in equity with
respect to the same or any other City Default.
45. Termination Outside of Default.
(a) Developer Termination. Notwithstanding anything to the contrary in
this Agreement, Developer shall have the right to terminate this Agreement and be released from
its liability and obligations hereunder by written notice to City delivered not later than on the
Park/Streetscape Construction Commencement Date if any of the following occurs: (a) changes
to the Park/Streetscape Improvements, the Park/Streetscape Concept Plan, the Plans and
Specifications or any other aspect required by the HPB, Planning Board, or any other
governmental or regulatory authority (including the City) render the Project or the
Park/Streetscape Improvements economically unfeasible in the sole judgment of Developer; (b)
the Project cannot meet Concurrency Requirements under Section 163.3180, Florida Statutes
(1997), or the costs of concurrency mitigation, in the sole judgment of Developer, render the
Project or the Park/Streetscape Improvements economically unfeasible; (c) Developer, after
good -faith efforts, has been unable to obtain Final Approval of all Permits and Approvals for the
Project or the Park/Streetscape Improvements; or (d) after good -faith efforts, Developer has not
been able to arrange appropriate financing for the Project or the Park/Streetscape Improvements.
In the event of termination of this Agreement pursuant to this Section, each Party shall bear its
own costs and expenses incurred in connection with this Agreement and neither Party shall have
any further liability to the other except for any matters that expressly survive termination of this
Agreement. The right of termination pursuant to this Section shall expire and become void if not
exercised by Developer on or prior to the Park/Streetscape Construction Commencement Date.
If Developer exercises its right of termination under this Section 45(a), then the Parties shall
promptly schedule a closing for the unwinding of the Closing consummated in Section 5 of this
Agreement (the "Unwinding Closing"), at which time the Parties shall execute, exchange, and, if
applicable, record such documents and instruments as are necessary or convenient to vest the
Parties with the respective rights and interests each Party possessed, and leave each Party in
the position it enjoyed, prior to the Closing, as if the Closing had not occurred and as if this
Agreement had not been signed, but excluding the refund of any monies expended,.or costs
incurred by either Party in performing such Party's obligations under this A tit .prior to
35.4i ,
49127872;13 _- %�
Developer's exercise of such right of termination. Developer further agrees to reimburse the City
for the reasonable out-of-pocket costs and expenses actually incurred by the City for the
mechanics of unwinding the Closing (the "City Unwinding Expenses"), regardless of when the
Unwinding Closing occurs. If the Developer terminates this Agreement pursuant to this Section
45 after the Closing but prior to Commencement of Construction of the Park/Streetscape
Improvements, the City will, no later than three (3) Business Days after the Unwinding Closing,
submit a written invoice to the Developer and Escrow Agent detailing the City Unwinding
Expenses. Escrow Agent will, no later than three (3) Business Days after receiving such invoice,
pay to the City from the Unwinding Funds an amount sufficient to cover the City Unwinding
Expenses and will return the remaining balance of the Unwinding Funds, if any, to the Developer.
If the Unwinding Funds are not sufficient to cover the City Unwinding Expenses, the Developer
will pay the deficiency to the City no later than three (3) Business Days after the Developer
receives written notice from the City and/or Escrow Agent of the deficiency. If the Developer does
not terminate this Agreement for convenience prior to Commencement of Construction of the
Park/Streetscape Improvements, then Escrow Agent will return the Unwinding Funds to
Developer in full no later than three (3) Business Days after such Commencement of
Construction. The Parties agree to accept and abide by such terms and conditions of escrow as
Escrow Agent reasonably requests to implement the intent of, and avoid or resolve disputes
regarding, the Unwinding Escrow.
(b) Effect. In the event that either Party chooses to exercise its express
right to terminate this Agreement for convenience (including, without limitation, under Section
45(a) above), but apart from such Party's right to terminate in an Event of Default by the other
Party, then each Party shall bear its own costs and expenses incurred in connection with this
Agreement and the Project, and neither Party shall have or owe any further liability to the other
Party.
46. 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 or an Event of Default
hereunder shall constitute a waiver of any such default, Event of Default or of such other covenant,
agreement, term or condition hereunder.
47. 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 (i) delivered by hand, (ii) sent by
electronic mail, (iii) sent by recognized overnight courier (such as Federal Express), or (iv) mailed
by certified or registered mail, return receipt requested, in a postage prepaid envelope, in each
case addressed as follows or to such other addresses as either Party may from time to time
designate for itself by notice to the other Party in accordance with this Section:
If to the City at: City of Miami Beach, City Hall
1700 Convention Center Drive
Miami Beach, Florida 33139
Attn: City Manager
With a copy to: City of Miami Beach, City Hall
1700 Convention Center Drive
Miami Beach, Florida 33139
Attn: City Attorney
36
;. .
49127872;13
ti '
With copies to: Holland & Knight LLP
701 Brickell Avenue
Miami, Florida 33131
Attn: Joseph G. Goldstein, Esq.
If to Developer at: 1035 N. Miami Avenue, Suite 201
Miami, Florida 33136
Attn: Sandor Scher
sscher@clarocorp.com
With a copy to: Akerman LLP
98 SE 7 Street, Suite 1100
Miami, FL 33131
Attn: Neisen O. Kasdin, Esq.
neisen.kasdin@akerman.com
Notices personally delivered or sent by electronic mail or by overnight courier shall be deemed
given on the date of delivery (or upon refusal of such delivery), and notices mailed in accordance
with the foregoing shall be deemed given three (3) Business Days after deposit in the U.S. mails.
The terms of this Section 47 shall survive the termination of this Agreement.
48. Governing Laws, Construction and Litigation. This Agreement shall be governed
and construed in accordance with the laws of the State of Florida, both substantive and remedial,
without regard to principles of conflict of laws that would require the application of any other law.
The 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 for the Southern District 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; accordingly, this Agreement shall not be more strictly
construed against any of the parties hereto. In construing this Agreement, captions, and section
and paragraph headings shall be disregarded and the use of any gender shall include every other
and all genders. All of the exhibits referenced in this Agreement are incorporated in, and made a
part of, this Agreement. In the event of any litigation between the parties under this Agreement
for a breach thereof, the prevailing Party shall be entitled to reasonable attorney's fees and court
costs at all trial and appellate levels. BY ENTERING INTO THIS AGREEMENT THE CITY AND
DEVELOPER EXPRESSLY WAIVE ANY RIGHTS EITHER MAY HAVE TO A TRIAL BY JURY
WITH RESPECT TO ANY CIVIL LITIGATION RELATED TO, OR ARISING OUT OF, THIS
AGREEMENT. The terms of this Section shall survive the termination of this Agreement.
49. Severability. 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.
50. Time of Essence. Time shall be of the essence for each and every provision
hereof.
51. Entire Agreement. This Agreement, together with its exhibits and all other
documents referenced herein, constitutes the entire agreement and understanding a � th-e
parties with respect to the subject matter hereof, and there are no other aq�en�fs,
37
49127872,13
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.
52. Other Agreements. This Agreement has no effect on any other agreement,
Development Order, or declaration of restrictions encumbering the Development Site as of the
Effective Date. Any and all agreements in the public records as of the Effective Date remain valid.
The parties incorporate by reference each and every applicable requirement set forth in the Act.
53. Binding Effect. The obligations imposed pursuant _to this Agreement upon the
Developer and upon the Development Site shall run with and bind the Development Site as
covenants running with the Development Site, and this Agreement shall be binding upon and
enforceable by and against the parties hereto and their personal representatives, heirs,
successors, grantees and assigns.
54. Transfer, Assignment, and Delegation.
(a) By Developer. Developer may, in its sole discretion, assign or
transfer its rights and/or delegate the performance of its obligations under this Agreement
pertaining to those portions of the Project other than the Park/Streetscape Improvements, in
whole or in part, to anyone at any time, without the City's prior written consent or other approval.
With respect to transfers, assignments, and delegations of Developer's rights and obligations
pertaining to the Park/Streetscape Improvements, the following shall apply:
i. Prior to Substantial Completion of the Park/Streetscape
Improvements, Developer may not assign or transfer its rights, or delegate the performance of its
obligations, pertaining to the Park/Streetscape Improvements under this Agreement, in whole or
in part, to any third party other than a Permitted Transferee, unless Developer first obtains the
City's prior written consent, which consent the City may withhold in its sole discretion.
ii. Following Substantial Completion of the Park/Streetscape
Improvements, Developer may, in its sole discretion, assign or transfer its rights or delegate the
performance of its obligations pertaining to the Park/Streetscape Improvements under this
Agreement, in whole or in part, to anyone at any time, without the City's prior written consent or
other approval.
Notwithstanding the foregoing or anything else to the contrary, the City's prior written consent
shall not be required to allow (i) any financing or refinancing of all or any portion of the Project,
including, without limitation, the granting of any mortgage, the foreclosure by any mortgagee
thereunder (or designee of such mortgagee), or the transfer or conveyance to such mortgagee or
designee by deed or assignment in lieu of foreclosure; or (ii) the submission of all or any portion
of the Project to a condominium form of ownership under Chapter 718, Florida Statutes, the
creation of an organization of unit owners and/or parcel owners, or the sale of condominium units
or other types of individually conveyable units or parcels within the Project. Upon the recordation
of a declaration in the public records submitting all or any portion of the Project to a condominium
form of ownership or other form of ownership governed by an organization of unit/parcel owners,
the obligations of Developer hereunder pertaining to such portion(s) of the Project, as applicable,
shall be binding only upon the organization of unit/parcel owners, and not upon the decl . nt or
38
49127872;13 '%1
//
any particular unit/parcel owner except to the extent otherwise specifically provided in such
declaration.
(b) By City. The City may not assign or transfer its rights, or delegate
the performance of its obligations under this Agreement, in whole or in part, to any third party
other than a successor municipal corporation, unless City first obtains Developer's prior written
consent, which consent Developer may withhold in its sole discretion.
(c) Notice; Effect; Invalidity. A Party making any transfer, assignment,
or delegation under this Agreement shall, no later than twenty (20) Business Days after
completing such transaction, deliver to the other Party a written notice specifying the nature and
effective date of such transfer, assignment, or delegation. Any transferee, assignee, or delegatee
(including through foreclosure or deed -in -lieu thereof) shall assume all of the obligations expressly
transferred, assigned, or delegated. Upon any transfer, assignment, or delegation carried out in
accordance with this Section, the obligations transferred, assigned, or delegated shall be binding
only on such Party's transferee, assignee, or delegatee, as the case may be, and the other Party
shall look only to such transferee, assignee, or delegatee for performance of the obligations being
transferred, assigned, or delegated. Any purported assignment or transfer of rights, or delegation
of performance, in violation of this Section is void.
55. Force Maieure; Economic Force Majeure; and Third -Party Challenges. Neither
Party shall be liable for damages, for breach of contract or otherwise, for any failure, suspension,
diminution, or other variation of service or performance occasioned by or arising from a Force
Majeure Event. In addition, all time periods in this Agreement and/or in any Permits and Approvals
issued in connection with the Project and/or the Park/Streetscape Improvements, whether
express or implied, will be tolled automatically to account for Force Majeure Events, and the Party
against whom enforcement -of a time period is sought will not be considered to have missed a
deadline or to be in breach or default of this Agreement for so long as such Party is unable to
complete any work or take any action required by this Agreement due to such Force Majeure
Event(s).
In addition, if, due to Economic Force Majeure, Developer is delayed, hindered, or
prevented from being able to obtain or maintain adequate financing for the Park/Streetscape
Improvements or for the Project or is otherwise unable to satisfy any Development Default
Deadline, then all Development Default Deadlines shall be extended for the period of such delay
(but not to exceed the total aggregate maximum period of thirty (30) months for all events of
Economic Force Majeure that may arise throughout the term of this Agreement); provided, that,
with respect to any such delay by Economic Force Majeure, Developer shall give written notice
of such occurrence to City describing in reasonable detail the events giving rise to the Economic
Force Majeure, and the date of commencement thereof. Developer shall use good -faith, diligent,
efforts to attempt to remove, resolve, or otherwise seek to mitigate such delay, shall advise the
City periodically of such efforts, and shall notify the City of the date of cessation of the event of
Economic Force Majeure (or the date Developer elects to no longer claim an extension of time
therefor), to permit the City and Developer to track development deadlines and ensure the
maximum aggregate extension of thirty (30) months for Economic Force Majeure is not exceeded.
Time is of the essence with respect to this provision.
In the event that a third party (unrelated or unaffiliated with the City or the Developer)
institutes any action, suit, or proceeding relating to the Project (including, without limi Of n,_any
action, suit, or proceeding challenging the validity of this Agreement or any elerpopf 9f the
39 \`
49127872;13 '
proposed transaction, or the validity or issuance of the Vacation Resolution, the Project Zoning
Approvals, the Park/Streetscape Zoning Approval, any amendments to the Comprehensive Plan
or Land Development Regulations relating to the Project or to the Park/Streetscape
Improvements, or any other Permits and Approvals relating to the Project or to the
Park/Streetscape Improvements (in each instance, including any related appeals and appeal
periods, a "Lawsuit"), then the Developer shall, at its option, either: (i) attempt to defend such
Lawsuit at its sole cost and using legal counsel reasonably acceptable to the City, in which case
all time periods in this Agreement and in any Permits and Approvals issued in connection with the
Project and/or the Park/Streetscape Improvements, whether express or implied, shall be tolled
automatically through all levels of appeal until such Lawsuit has been finally disposed of (by
judgement, settlement or otherwise) to Developer's satisfaction; or (ii) terminate this Agreement
in accordance with Section 45. Developer shall indemnify and hold the City harmless from and
against all actual claims, injury, damage, loss and liability, cost and expense (including atforneys'
fees, costs and expenses) of any and every kind arising out of or relating to any such Lawsuit,
except to the extent arising out of or related to the City's negligence or misconduct. Developer
shall be entitled to control the defense and conduct of any such Lawsuit and to compromise,
settle, or abandon the Lawsuit, in its sole discretion, and the City agrees to reasonably cooperate
with Developer (at no expense to the City) in connection with the conduct of any such Lawsuit.
This Section shall survive the termination or expiration of this Agreement.
In addition, if a Lawsuit is commenced prior to the City's approval of the Vacation
Resolution, then the City shall not be required to effectuate the vacation of the City Parcel until
thirty (30) days after the Lawsuit has been finally disposed of (whether by judgment, settlement,
or otherwise) on terms and conditions acceptable to Developer in its sole discretion; provided,
however, that if such Lawsuit is still pending more than sixty (60) months after it has been
commenced, then either Party at its option may, from and after the expiration of such sixty (60)
month period and while such Lawsuit remains unresolved, elect to terminate this Agreement by
delivering a written notice of termination to the other Party, whereupon the Vacation Resolution
application shall be withdrawn and the Agreement shall be terminated, and the City and Developer
shall have no further obligation and/or liability to each other.
56. Indemnification. In addition to the indemnification obligations provided elsewhere
in this Agreement, and subject to the City's liability limitations as set forth herein and in Section
60 below, each Party hereby agrees to defend, indemnify and hold harmless the other Party, its
agents and employees, from and against all actual, documented loss, cost, expense, claim,
demand or cause of action of whatever kind or nature arising out of or related to the gross
negligence or willful misconduct of such Party and/or its officers, directors, officials, employees,
contractors, and agents, related to (i) this Agreement, (ii) the Project; and/or (iii) the
Park/Streetscape Improvements, except to the extent arising out of or related to the gross
negligence or willful misconduct of the other Party and/or its officers, directors, officials,
employees, contractors, or agents (collectively, "Losses"). The indemnifying Party shall directly
pay all actual, documented costs and expenses related to any cost charged or legal defense
required by the other Party, using legal counsel reasonably acceptable to the other Party (but
subject to the requirements of the indemnifying Party's insurers), pursuant to the foregoing
indemnification obligation. The non -indemnifying Party shall notify the indemnifying Party of any
Losses promptly after receiving notice of same and shall reasonably cooperate and collaborate
(but at no expense to the non -indemnifying Party) with the indemnifying Party in connection with
any legal proceeding in which the indemnifying Party is defending the other Party hereu ter, This
Section shall survive termination or expiration of this Agreement. City's indemni ,,obiiga�is
herein shall be solely to the extent and limits permitted by Section 768.28 of the 1= 4fa Sf to
40
49127872;13
and without waiver of any rights or defenses thereunder or any privileges or immunities afforded
to the City under the laws of the State of Florida.
57. Corporate Obligations. It is expressly understood that this Agreement and the
obligations issued hereunder are solely corporate obligations, and that no personal liability will
attach to, or is or shall be incurred by, the incorporators, stockholders, officers, directors, elected
or appointed officials,(including, without limitation, the Mayor and City Commissioner of the City)
or employees, as such of Developer, City, or any of any successor corporation or any of them,
under or by reason of the obligations, covenants or agreements contained in this Agreement or
implied therefrom; and that any and all such personal liability, either at common law or in equity
or by constitution or statute, of, and any of all such rights and claims against, every such
incorporator, stockholder, officer, director, elected or appointed official _ (including, without
limitation, the Mayor and City Commissioner of the City) or employee, as such, or under or by
reason of the obligations, covenants or agreements contained in this Agreement or implied
therefrom are expressly waived and released as a condition of, and as consideration for, the
execution of this Agreement.
58. No Conflict of Interest. Developer represents and warrants that, to Developer's
knowledge, no member, official or employee of the City has any direct or indirect financial interest
in this Agreement nor has participated in any decision relating to this Agreement that is prohibited
by law. Developer represents and warrants that, to Developer's knowledge, no officer, agent,
employee, or representative of the City has received any payment or other consideration for the
making of this Agreement, directly or indirectly, from Developer.
59. No Third -Party Beneficiaries. This Agreement is not intended to, and shall not be
construed to give, any third party (including, without limitation, any homeowners association,
condominium association, or neighborhood association in the surrounding area, or any individual
members thereof) any rights or interests whatsoever, nor is it intended that any third party shall
be a third party beneficiary of any provisions hereof.
60. Limitations of Liability.
60.1 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, and City expressly does not
waive any of its rights and immunities thereunder.
60.2 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 City, its agents,
contractors or employees) or to any other person happening on, in or about the City Parcel or the
Park/Streetscape Site and its appurtenances, nor for any injury or damage to the City Parcel or
the Park/Streetscape Site (unless caused by the gross negligence or willful misconduct of City,
its agents, contractors or employees) or to any other person which may be caused by any fire or
breakage, or by the use, misuse or abuse of any of the City Parcel or the Park/Streetscape Site,
or which may arise from any other cause whatsoever (unless caused by the gross negligence or
willful misconduct of City, its agents, contractors or employees).
60.3 Other than as provided in the City Parcel Easement, City will n be_liable
to Developer or to any other person for any injury or damage to any property of D �e)o�per & to
any person or to the City Parcel caused by or resulting from gasoline, oil, steam, , eleGtri J
r�
41
49127872;13
or hurricane, tornado, flood, wind or similar storms or disturbances, or water, rain or snow which
may leak or flow from the street, sewer, gas mains or subsurface area or from any part of the City
Parcel or the Park/Streetscape Site, or leakage of gasoline or oil from pipes, appliances, sewer
or plumbing works therein, or from any other place, nor for interference with light or other
incorporeal hereditaments by any person (unless caused by the gross negligence or willful
misconduct of City, its agents, contractors or employees).
60.4 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/Streetscape Improvements by the City under this Agreement, shall render the City liable
for its failure to discover any defects or nonconformance with any governmental requirement.
60.5' Developer shall, pursuant to and in accordance with the terms and
conditions of the City Parcel Easement, make the City Parcel available to the public free of charge
for outdoor recreational purposes. Accordingly, to the maximum extent permitted by law,
Developer may avail itself of the limitations of liability afforded pursuant to Section 375.251,
Florida Statutes, to the fullest extent applicable to the City Parcel Easement.
61. 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, as set forth in this Agreement. All such considerations
and actions shall be undertaken in accordance with established requirements of state statutes
and municipal ordinances, in the exercise of the City's jurisdiction under the police power. Nothing
contained in this Agreement shall entitle the Developer to compel the City to take any such
actions, save and except the consents, if applicable, to the filing of such applications for
Development Permits or Development Orders, as more fully set forth herein, and to process such
applications as expeditiously as possible.
(b) The Parties further recognize and agree that these proceedings
shall be conducted openly, fully, freely and fairly in full accordance with law and with both
procedural and substantive due process to be accorded the applicant and any member of the
public. Nothing in this Agreement shall be construed to prohibit the City from duly acting under
its police power to approve, approve with conditions, or reject any public hearing application
dealing with the Development Site.
62. Art in Public Places. Developer shall comply with the City's Art In Public Places
program requirements under Section 82-536 through 82-612 of the City Code, as applicable (the
"AIPP Ordinance"), and shall pay to the City's Art in Public Places fund the total of 2.0% of the
"construction cost" (as such term is defined in Section 82-537 of the City Code) of the
Park/Streetscape Improvements (the "Public Art Funds") no later than the date of execution of
Construction Agreement with the Contractor for the Park/Streetscape Improvements. The full
amount of the Public Art Funds shall be dedicated to Developer's use for public art within the
Park/Streetscape Site. In view of the Developer's overall design responsibility for the
Park/Streetscape Improvements, the Developer shall either: (a) submit the proposed artworks to
be funded with the Public Art Funds to the City's Art In Public Places Committee for its review,
recommendation and approval; or (b) seek the City Commission's approval of the proposed
artworks and waiver of any applicable AIPP Ordinance program requirements, which approval by
the City Commission shall not to be unreasonably withheld, conditioned or delayed.
In
42
49127872;13 �';
63. City Manager's Deleqated Authority. Notwithstanding any provision to the contrary
in this Agreement, nothing herein shall preclude either Party from seeking direction from or
electing to have the City Commission determine any matter arising out of or related to the
Park/Streetscape Project, including, without limitation, any approval contemplated under this
Agreement (within the timeframe specified therefor as if the approval was being determined by
the City Manager).
64. Conflict. In the event of an inconsistency or conflict between the terms of this
Agreement and the Vacation Resolution, the terms of this Agreement shall control.
65. Freedom from Interference. Except as is otherwise expressly provided in this
Agreement, Developer shall have discretion, control, and authority, free from interference,
interruption, or disturbance by the City, in all matters relating to the development, design,
permitting, and construction of the Project and the Park/Streetscape Improvements, including,
among others, with respect to the following specific matters: (i) the selection, approval, hiring, and
discharge of architects, engineers, contractors, subcontractors, professionals, and other third
parties on such terms and conditions as Developer deems appropriate in its sole discretion,
provided that the Contractor for the Park/Streetscape Improvements must be duly licensed by the
State of Florida, must satisfy the insurance and bonding requirements set forth in Exhibit "N" to
this Agreement, and must have completed at least two (2) projects with an estimated value of at
least Ten Million Dollars ($10,000,000.00) each during the five (5) years immediately preceding
the Contractor's engagement for the Park/Streetscape Improvements, and provided further that
the landscape architect for the Park/Streetscape Improvements, if other than Raymond Jungles,
must be approved in advance by City, but the City will not unreasonably withhold, condition, or
delay such approval; (ii) the negotiation and execution of contracts, agreements, instruments,
covenants, and other documents with third parties, in form and substance satisfactory to
Developer in its sole discretion; and (iii) the preparation of such budgets, cost estimates, financial
projections, statements, information, and reports as Developer deems appropriate in its sole
discretion.
66. Estoppel. The City will, no later than fifteen (15) Business Days after a written
request therefor by Developer, by any Recognized Mortgagee, or by anyone claiming by or
through Developer (including, without limitation, Developer's successors, assigns, transferees,
and mortgagees and other lenders providing financing for the Project or the Park/Streetscape
Improvements), and upon payment of the reasonable fees to cover the City's expenses for any
third -party resources required to comply, issue a written estoppel certificate, in recordable form,
to the requesting party, certifying as to any matter related to this Agreement that the requesting
party may reasonably request of the City, including, without limitation, (i) that this Agreement, or
any particular paragraph or section of this Agreement specified by the requesting party, is in full
force and effect and unmodified (or in what respects this Agreement is no longer in force or effect
or has been modified); (ii) that all monies due and payable under this Agreement, if any, have
been paid (or in what respects monies are owed); and (iii) that to the City's knowledge, Developer
is in compliance with this Agreement or with any particular paragraph or section hereof specified
by the requesting party (or in what respects there is noncompliance). Such estoppel certificates
will be binding on the City and its successors and assigns, and may be relied upon by Developer,
its mortgagees and lenders, and by all others claiming by or through Developer. Notwithstanding
the foregoing section or any representations in any estoppel certificates issued thereunder, City
shall not be estopped as to matters to which it did not have knowledge. -,
[Signatures Follow]
i,
43
49127872;13
EXECUTED as of the date first above written in several counterparts, each of which
shall be deemed an original, but all constituting only one agreement.
Signed, sealed and delivered
in the presence of:
Name: t f % c C , t-�✓
Name:
STATE OF FLORIDA )
)SS
COUNTY OF MIAMI-DADE )
CITY OF MIAMI BEACH,
a Florida municipal corporation
By:
Dan Gelber, Mayor
Attest: /-c1 c� S 2 c
R ael E. ranado, City Clerk
The foregoing instrument was acknowledged before me this °day of
u / , 2019, by -�!)a e7 6elb'-� , as Mayor of the
City of Mia i 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.
NOT RY UBL� Cn
\/ yY ikX IVI606df5
Typed or Printed Name of Notary
My Commission expires:
Serial No., if any:
••ti;,iiv'P�B YAMILEX MORALES
NotaryPublic-StateofFlorida
Commission i GG 071355
My Comm. Expires Mar16,2021
��� '•��' � ,,,, Bonded through National Notary Assn.
�PJCORP ORAL Ei�` APPROVED AS TO
FO GUAGE
F CUTION
fty Attorney � Ai4eF'
Signed, sealed and delivered
in the presence of:
Print Name: ht t
Print Name: c<f.,>
STATE OF FLORIDA
7450 OCEAN TERRACE LLC,
a Delaware limited liability company
By: OCEAN TERRACE HOLDINGS, LLC,
a Delaware limited liability company,
its sole memb r
By:
Sand rScher
Manager
SS:
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me this � day of re+t� 2019
by Sandor Scher, as Manager of Ocean Terrace Holdings, LLC, a Delaware li d liability
company sole rllember f 7450 Ocean Terrace LLC, a Delaware limited -liability company. He
is pnho
ally nown to r has produced as identification
anddi did n e an oath.
i OTA Y PUBLIC
yped r printed Name of Notary
My Co mission expires:
Serial N ., if a
E
JULIANNE PRESS
Notary Public • State of Florida
Commission 4 GG 299114
''My Comm. Expires Feb 6, 2023
nded through National Notary Assn.
Signed, sealed and delivered
in the presence of:
Print Name:
STATE OF FLORIDA )
) SS:
COUNTY OF MIAMI-DADE )
7436 OCEAN TERRACE LLC,
a Delaware limited liability company
By: OCEAN TERRACE HOLDINGS, LLC,
a Delaware limited liability company,
its sole member
By:
Sand r Scher
Manager
a, � 41ted
The foregoing instrument was acknowledged before me this � . day of 2019
by Sandor Scher, as Manager of Ocean Terrace Holdings, LLC, a Delawarliability
company, f 7436 Ocean Terrace LLC, a DgLawidre limited liability company. He
is per o ly nown or has produced as identification
and a not take an oath. ��!`
NOIARYTUBLIC
Typed or inted Name of Notary
M Commi sion expires:
S nal No., f an
JULIANNE DR
Notary Publio •State 9 9 t Fto4 a
Commission GG 22023
otE` M Comm. Expires Feb 6,
�0i �.. y h National Notary Assn.
bondedthroug
Signed, sealed and delivered
in the presence of:
Print Name: I!r�j, n I:), C, Iv-
STATE OF FLORIDA )
) SS:
COUNTY OF MIAMI-DADE )
7420 OCEAN TERRACE INVESTMENT, LLC,
a Florida limited liability company
By: OCEAN TERRACE HOLDINGS, LLC,
a Delaware limited liability company,
its sole member
By:
Sandor c er
Manager
2 d--
The foregoing instrument was acknowledged before me this ✓1 day of —, 2019
by Sandor Scher, as Manager of Ocean Terrace Holdings, LLC, a Delaware lied liability
company, the sole o 74 an Terrace Invest ent, LLC limited liability
company. Is p�Ikme or has pras
identification oath.
r
NOT; PZY BLIC
Type or pri Nted Name of Notary
My C mmissrny
n expires:
Seri I No., if
JULIANNE PRESS
Notary Public - State of Florida
Commission 4' GG 299114
My Comm. Expires Feb 6, Z023
�d through National Notary Assn.
Signed, sealed and delivered
in the presence of:
STATE OF FLORIDA )
) SS:
COUNTY OF MIAMI-DADE )
7410 OCEAN TERRACE LLC,
a Delaware limited liability company
By: OCEAN TERRACE HOLDINGS, LLC,
a Delaware limited liability company,
its sole member
By:
Sandor ScIfer
Manager
The foregoing instrument was acknowledged before me this511
11 day of J, 1 2019
by Sandor Scher er of Ocean Terrace Holdings, LLC, a Delaware iirrrfted liability
com , e sole me b 7410 Ocean Terrace LLC, a De! liability company. He
person. o me or has produced as identification
/di d not take an oath.
NOoor
BLIC
Tyted Name of Notary
Myion expires:
Se--------
:1;�Y n�B,, Jd_IANNE PRESS
Notary Public State of Florida
22 �c Commission # GG 299114
�f?o�rti°F` My Comm. Expires Feb 6, 2023
Bonded through National Notary Assn.
Signed, sealed and delivered
in the presence of:
Print Name:
Print t Nanib: I✓P , , (\
STATE OF FLORIDA )
) SS:
COUNTY OF MIAMI-DADE )
7400 OCEAN TERRACE, LLC,
a Florida limited liability company
By: OCEAN TERRACE HOLDINGS, LLC,
a Delaware limited liability company,
its sole member
By:
Sandor Sch r
Manager
The foregoing instrument was acknowledged before me this day of 41ii
2019
by Sandor Scher, as r of Ocean Terrace Holdings, LLC, a Delawarliability
company, th member 00 Ocean Terrace, LLC, a liability company. He
is perso II k e or has produced as identification
and who id not take an oath. {
NOT RY UBLIC
Ty d or inted Name of Notary
M Commi sion expires:
rial No., f any
z ;
"o;
JULIA"�i+=_ CRESS
Notary Pubic • State of Florida
Commissior - GG 299114
't g:'
My Comm. Expires Feb 6, 70Z3
Bonded through Natiora: Notary Assn.
Signed, sealed and delivered
in the presence of:
Print Name:
STATE OF FLORIDA )
) SS:
COUNTY OF MIAMI-DADE )
7409 COLLINS AVE INVESTMENT, LLC,
a Florida limited liability company
By: OCEAN TERRACE HOLDINGS, LLC,
a Delaware limited liability company,
its sole member
By:
Sandor Cher
Manager
1St- j
The foregoing instrument was acknowledged before me this day of 2019
by Sandor Scher, as Manager of Ocean Terrace Holdings, LLC, a Delaware Ii ited liability
company, the sole mem' ollins Ave Investment, L!:�Porida limited liability
company. He is per y kn e or has produced as
identification and did/did not take an oath. f
N TA Y PUBLIC
T ped printed Name of Notary
y Cm fission expires:
erial N if any
JULIANNE "LES,
Notary Public State of Flcric�
i 2 � -a Commission p GG
/�c% µ• Comm. Expires Feb 6, 2GZ3
%'� or r`•` CeC 'throng h National Notary
' gor.
Signed, sealed and delivered
in the presence of:
Print Name: t 70
Print Name: i!e�
7421 COLLINS AVE INVESTMENT, LLC,
a Florida limited liability company
By: OCEAN TERRACE HOLDINGS, LLC,
a Delaware limited liability company,
its sole member
By:
SandorScher
Manager
STATE OF FLORIDA )
SS:
COUNTY OF MIAMI-DADE )
9
The foregoing instrument was acknowledged before me this5, day of �ti� 2019
by Sandor Scher, as Manager of Ocean Terrace Holdings, LLC, a Delaware litY i ed liability
company, the solEdZidlnotttakean
21 Collins Ave Investment, LLC, 'a Florida limited liability
company. He is n o me or has produced as
identification an oath.
A411
NI
Tame
of Notary
Mionpires:
S
°JULIANNE PRESSNotary
Public. State of Fiorica
.Commission k GG 299114
O`' my Comm. Expires Feb b, 2023 '
SorCed through National Notary Assr.
Signed, sealed and delivered
in the presence of:
Print am tI14 c
l��Jt -7-y✓''
Print Name:
STATE OF FLORIDA
7433 COLLINS AVE INVESTMENT, LLC,
a Florida limited liability company
By: OCEAN TERRACE HOLDINGS, LLC,
a Delaware limited liability company,
its sole member
By:
Sand S h r
Manager
SS:
COUNTY OF MIAMI-DADE }
The foregoing instrument was acknowledged before me thi ft2019
by Sandor Scher, as Manager of Ocean Terrace HoldingsA
ability
company, the sole of 3 Collins Ave Investmeability
company.He is p sonally n to me or has produced as
identification and did not take an oath.
NOTARY PUBLi
Typed or printed a e of Notary
My Commission x ires:
Serial No., if any
sE PRESS
ublic State 9 Floridaissior = GG 2991 2023ires
Ezui.iA`
Feb 6,.
NXr Assn.h . ationat Notary
Signed, sealed and delivered
in the presence of:
Print Name: o527
Print Name:
7439 COLLINS AVE INVESTMENT LLC,
a Florida limited liability company
By: OCEAN TERRACE HOLDINGS, LLC,
a Delaware limited liability company,
its sole member
By:
Sandor Scher
Manager
STATE OF FLORIDA )
) SS:
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me this5, day of A
tti I 2019
by Sandor Scher, as Manager of Ocean Terrace Holdings, LLC, a Delaware I' i ed liability
company, the Sol 6�743c ollins Ave Investment LLCa ited liability
company. He ' personally k e or has produced as
identification . I /did not take an oath.' `
NOTAR BLIC
Typed r pr ted Name of Notary
My C mis ion expires:
Seria No., if ass
Notary ?LoiiC • State of Florida
Commission # GG 299114
My Comm. Expires Feb 6, 2023
Bonded through National Notary Assn.
Signed, sealed and delivered
in the presence of:
Print Name:i..-
STATE OF FLORIDA )
) SS:
COUNTY OF MIAMI-DADE }
7441 COLLINS AVE INVESTMENT, LLC,
a Delaware limited liability company
By: OCEAN TERRACE HOLDINGS, LLC,
a Delaware limited liability company,
its sole member
By: V 12iz�_
Sandor Sc er
Manager
sl
The foregoing instrument was acknowledged before me this5) day of k' 2019
re m by Sandor Scher, as Manager of Ocean Terrace Holdings, LLC, a Delawaited liability
company, the of Collins Ave Investment LLC, re invited liability
compan He is pets n n to me or has prod ed /1 as
identification and wh d/did not take an oath.
1
NO AR PUBLIC
F-riaIN"0,ifanv
ed o rinted Name of Notary
Com fission expires:
_
1UUpNxE PKt"
a�`¢� •O°��, Notn'y?011C Stnte of Florida
Camm ' GG 2441 1023
ys g� y ` � m SExPires feb 6.
•:�oF �o....rnt through National N� ota���
Exhibit "A"
The Developer Property
Lots 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 and 13 in Block 1 of Harding Townsite,
according to the Plat thereof, as recorded in Plat Book 34, Page 4, of the Public
Records of Miami -Dade County, Florida.
49033640;2
Exhibit "B"
Reversionary Interest
see following page(s)
49033720J
LEGAL DESCRIPTION:
A portion of the Public Reservation shown on Plat of TOWNSITE OF HARDING, according to the Plat thereof, as
recorded in Plat Book 34 at Page 4, of the Public Records of Miami —Dade County, Florida, being more particularly
described as follows:
Commence at the Southeast corner of Lot 7 in Block 1, of said Plat of TOWNSITE OF HARDING; thence
South 02'58'50" East, along the Southerly prolongation of the West Right —of —Way line of Ocean Terrace. (First
Avenue per Plat Book 34 at Page 4), for 30.00 feet to a point on the center line of 74th Street (Second Street
per Plat Book 34 at Page 4); thence North 86'59'28" East, along said center line, for 60.00 feet to a point on
the East Right —of —Way line of said Ocean Terrace and the Point of Beginning; thence continue
North 86'59'28" East, along said center line, for 31.53 feet to a point on the East line of said Public Reservation;
thence North OC12'42" West, along said East line, for 420.09 feet to a point on the North line of Government Lot
7, lying in Section 2, Township 53 South, Range 42 East, also being the North line of Plat Book 34 at Page 4;
thence South 86'59'28" West along said North line of Government Lot 7 for 22.50 feet to a point on said East
Right —of —Way line of Ocean Terrace, also being the West line of said Public Reservation; thence
South 02'58'50" East, along said East Right —of —Way line and West line, for 420.00 feet to the Point of Beginning.
SURVEYOR'S NOTES:
— This site lies in Section 2, Township 53 South, Range 42 East, City of Miami Beach, Miami —Dade County, Florida.
— Bearings hereon are referred to an assumed value of N 02'58'50" W for the centerline of Collins Avenue.
— Lands shown hereon were not abstracted for easements and/or rights —of —way of records.
— Lands shown hereon containing 11,346 square feet, or 0.260 acres, more or less.
— This is not a "Boundary Survey" but only a graphic depiction of the description shown hereon.
— Dimensions shown hereon are based on Fortin, Leavy, Skiles, sketch #2016-170—NGVD.
SURVEYOR'S CERTIFICATION:
I hereby certify that this "Sketch of Description" was made under my responsible charge on May 8, 2019, and
meets the applicable codes as set forth in the Florida Administrative Code, pursuant to Section 472.027, Florida
Statutes.
"Not valid without the signature and the original raised
seal of a Florida Licensed Surveyor and Mapper"
FORTIN, LEAVY, SKILES, INC., LB3653
By:
Daniel C. Fortin, Jr., For The Firm
Surveyor and Mapper, LS6435
State of Florida.
Drawn By MAP
Cad. No. 190176
Ref. Dwg.
2016-170
Plotted: 5/9/19 7:29a
( LEGAL DESCRIPTION, NOTES & CERTIFICATI0I#4
F ORm;,- LEAVY, SKILES, INc
CONSULTING ENGINEERS, SURVEYORS &. MAPPERS
FLORIDA CERTIFICATE OF ATTMORIZATION MiNMER: 00003653
180 Northeast 168th. Sweet/ North lvtj=ni Beach, Florida. 33162
Phone: 305-653- 493 / Fax 305-651-7152 / Email flsQflseurvey.com
4it 8/19
tale i Ox. 0 SCALE
Job. Tv., r190441
No. 1019-007—K
sheet 1 of 3
(ALLAMANDA (75TH) STREET - PLAT BOOK 31 PAGE 40)
75TH STREET
NORTH UNE OF-J
(PUBLIC RIGHT OF WAY)
o
v
GOVERNMENT LOT 7
SECTION 2-53-42 k
CENTERUNE OF
75TH STREET
NORTH UNE OF
PLAT BOOK 34 PAGE 4
(FIRST STREET - PLAT BOOK 34 PAGE 4)
—
W
� 7
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LOT 8
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LOT 1
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to
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LOT 9
I
LOT 2
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LOT 10
LOT 3
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( IN pm 74TH 74TH STREET
I inch = 60 fL (PUBLIC RIGHT OF WAY)
Drawn By MAP
Cad. No. 190176
Ref. Dwg.
2016-170
Plotted: 5/9/19 7:29a
SKETCH OF DESCRIPTION
F ORTIN, L.EAVY, S KILES, INC.
CONSULTING ENGINEERS, SURVEYORS &, MAPPERS
FLORMA CERTIFICATE OF ALTTFIORSZA'nON MIMSER: 00003653
180 Northeast 168th. Street / North Miami Beach, Florida 33162
Phoae: 305-653- 493 / Fax 305-651-7152 / Email flsQflssurvey.com
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LOCATION SKETCH ate
Drava By MAP
Cad. No.
190176
Exhibit "C"
75 Ih Street Parcel
see following page(s)
49183387;1
LEGAL DESCRIPTION:
A portion of the Right —of —Way of 75th Street that adjoins Lots 1 and 8 in Block 1, of TOWNSrrE OF HARDING,
according to the Plat thereof, as recorded in Plat Book 34 at Page 4, of the Public Records of Miami —Dade
County, Florida, being more particularly described as follows:
Begin at the Northeast corner of said Lot 1; thence South 86'59'28" West along the North line of said Lots 1 and
8, also being the South Right —of —Way line of said 75th Street, (First Street per Plot Book 34 at Page 4) for
296.00 feet to the Northwest corner of said Lot S. also being a point on the East Right —of —Way line of Collins
Avenue (Second Avenue per Plat Book 34 at Page 4), thence North 02'58'50" West, along the Northerly prolongation
of the West line of sold Lot 8, also being said East Right —of —Way line of Collins Avenue for 40.00 feet to a point
on the North line of Government Lot 7, lying in Section 2, Township 53 South, Range 42 East, also being the
North line of Plat Book 34 at Page 4; thence North 86'59'28" East along said North line of Government Lot 7 for
296.00 feet; thence South 02'58'50" East, along the Northerly prolongation of the East line of said Lot 1, for
40.00 feet to the Point of Beginning.
SURVEYOR'S NOTES:
— This site lies in Section 2, Township 53 South, Range 42 East, City of Miami Beach, Miomi—Dade County, Florida.
— Bearings hereon ore referred to an assumed value of N 02'58'50" W for the centerline of Collins Avenue.
— Lands shown hereon were not abstracted for easements and/or rights —of —way of records.
— Lands shown hereon containing 11,840 square feet, or 0.272 acres, more or less.
— This is not a "Boundary Survey" but only a graphic depiction of the description shown hereon.
— Dimensions shown hereon are based on Fortin, Leavy, Skiles, sketch #2016-170—NGVD.
SURVEYOR'S CERTIFICATION:
I hereby certify that this "Sketch of Description" was made under my responsible charge on June 13, 2019, and
meets the applicable codes as set forth in the Florida Administrative Code, pursuant to Section 472.027, Florida
Statutes.
"Not valid without the signature and the original raised
seal of a Florida Licensed Surveyor and Mapper'
FORTIN, LEAVY, SKILES, INC., LB3653
IBM
Daniel C. Fortin, Jr., For The Firm
Surveyor and Mapper, LS6435
State of Florida.
Drawn By DANJR
Cad. No. 190176
Ref. Dwg.
2016-170
Piotted: 5/9/19 7.29a
LEGAL DESCRIPTION, NOTES & CERTIFICATION
FORTIN, LEAVY, S KILES, INC.
CONSULTING ENGINEERS, SURVEYORS & MAPPERS
FLORIDA CERTIFICATE OF AUTHORIZATION NUNM£R: 00003653
180 Northeast 168th. Street / North Miami Beech, Florida. 33162
Phone: 305-653 4493 / Fax 305-651-7152 / Email flsQflssur ey.corn
Date d>a1 2�1
NOTd°Q;, C .,
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(PUBUr_-NGHT OF WAIF
NORTH LINE OF. (FIRST STREET - PLAT BOOK 34 PAGE 4)
GOVERNMENT.LOT 7
N W.. CORNER SECTION 2-53-47 de SOUTH. RIGHT .OF WAY UNE
NORTH .LINE .OF
OF LOT 8 OF 75TH STREET
PLAT -'BOOK 34-PAGE 4
S86'59'28"W 296.00'
I NORTH LOT eE POINT OF
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74TH STREET 74TH STREET
(�) _ _
1 inch = 80 it (PUBLIC RIGHT OF WAY)
Drawn By DANJR
Cad. No. 190176
Ref. Dwg.
2016-170
Plotted: 5/9/19 7:290
SKETCH OF DESCRIPTION
F ORTIN, LEAVY, S KILES, INC. I
CONSULTING ENGINEERS, SURVEYORS & MAPPERS
FLOPLMA CERTIFICATE OF AUTHORIZATION NIJNMFR: 00003653
180 Northeast 168th. Street / North Miami Beach, Florida. 33162
Phone: 305-653-"93 / Fax 305-651-7152 / Email flsQflssurvey.com
0 J;�2019
01
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� a f'01' —007—P
sheet 2 of 3
Drawn By DANJR
Cad. No. 190176
Ref. Dwg.
2016-170
Plotted: 5/9/19 7:29a
SUBJECT LEGAL DESCRIPTION
LOCK
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72ND STREET
Q
LOCATION SKETCH
FORTIN, LEAVY, S KILES, INC.
CONSULTING ENGINEERS, SURVEYORS & MAPPERS
FLORMA CERTIFICATE OF AUlHORIZA'11ON NLRvMER: 00003653
ISO Northeast 169th. Street / North Miami Beach, Florida. 331&
Phone: 305-653-"93 / Fax 305-651-71 52 / Email flsQflssurvey_com
Date 6/13/2019
Np :� 0 SCALE
Job, 1�T 176
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Sh-pet. :3 _ ,6f 3
Exhibit "D"
74 Ih Street Parcel
see following page(s)
49183387;1
LEGAL DESCRIPTION:
A portion of the Right—of—Woy of 74th Street that adjoins Lots 7 and 14 in Block 1, of TOWNSITE OF HARDING,
according to the Plat thereof, as recorded in Plat Book 34 at Page 4, of the Public Records of Miami —Dade
County, Florida, being more particularly described as follows:
Begin at the Southeast corner of said Lot 7; thence South 86'59'28" West, along the South line of said Lots 7
and 14, also being the North Right —of —Way line of 74th Street (Third Street per Plat Book 34 at Page 4), for
296.00 feet to the Southwest corner of said Lot 14; thence South 02'58'50" East, along the Southerly prolongation
of the West line of said Lot 14, also being the East Right —of —Way line of Collins Avenue (Second Avenue per Plat
Book 34 at Page 4), for 30.00 feet to a point on the center line of said 74th Street; thence North 86'59'28"
East, along said center line, for 296.00 feet to a point on the Southerly prolongation of the East line of said Lot
7; thence North 02'58'50" West, along said Southerly prolongation, for 30.00 feet to the Point of Beginning.
SURVEYOR'S NOTES:
— This site lies in Section 2, Township 53 South, Range 42 East, City of Miami Beach, Miami —Dade County, Florida.
— Bearings hereon are referred to an assumed value of N 02'58'50" W for the centerline of Collins Avenue.
— Lands shown hereon were not abstracted for easements and/or rights —of —way of records.
— Lands shown hereon containing 8,880 square feet, or 0.204 acres, more or less.
— This is not a "Boundary Survey" but only a graphic depiction of the description shown hereon.
— Dimensions shown hereon are based on Fortin, Leavy, Skiles, sketch #2016-170—NGVD.
SURVEYOR'S CERTIFICATION:
I hereby certify that this "Sketch of Description" was made under my responsible charge on June 13, 2019, and
meets the applicable codes as set forth in the Florida Administrative Code, pursuant to Section 472.027, Florida
Statutes.
"Not valid without the signature and the original raised
seal of a Florida Licensed Surveyor and Mapper"
FORTIN, LEAVY, SKILES, INC., LB3653
By:
Daniel C. Fortin, Jr., For The Firm
Surveyor and Mapper, LS6435
State of Florida.
Drawn By DANJR
Cad. No. 190176
Ref. Dwg.
2016-170
Plotted: 5/9/19 7.29a
I LEGAL DESCRIPTION, NOTES & CER TIFICA TION I
F ORTTN, LEAVY, SKILES, -IN(-,,,I
CONSULTING ENGINEERS, SURVEYORS & MAPPERS
FLOR.IDA CERTIFICATE OF AU-MORIZATION NUMBER: 00003653
180 Northeast 168th. Strcct / North Miami Beach, Florida. 33 162
Phone: 305-653-"93 / Fax 305-651-7152 / Email fls(�P_flssur ey.com
Date..
3/2019
5ca'ley140'.
0 SCALE
Job. N
90594
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Sheet 1
of 3
0 GRAPHIC SCALE30 so 120 N _ 75TH STREET _
' (PUBLIC RIGHT OF WAY)
( 1N FFM b CENTERUNE OF
I inch - 60 It 75TH STREET I
(FIRST STREET - PLAT BOOK 34 PAGE 4)
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-SY1'CORNER 74TH STREET CENTERLINE OF:� o
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N86'59'28'E (SECOND STREET -PLAT BOOK 34 PAGE 4) 296.00
Drawn By DANJR
Cad. No. 190176
Ref. Dwg.
201 s-17o
Plotted: 5/9/19 7:29a
SKETCH OF DESCRIPTION
FORTIN, LEAVY, S KILES, INC.
CONSULTING ENGINEERS, SURVEYORS & MAPPERS
FLORMA CERTIFICATE OF AXTTHORIZA77ON 14VIvIBERc 00003653
180 Northeast 168th. Street / North Miami Beach, Florida. 33 162
Phone: 305-653-4493 / Pax 305-651-7152 / Email flsQilssurvey.com
75TH STREET
�
LOCK 9 SUBJECT LEGAL DESCRIPTION
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72ND STREET
N
Drawn By DANJR
LOCATION SKETCH Date j13� 19
cal, `-pf0 � .7Q S A
Ref. Dwg. E
FORTim LEAVY, S KILES, INC. ao>; `o. .b 9,1
CONSULTING ENGINEERS, SURVEYORS & MAPPERS ,
FLORIDA CERTIFICATE OF AUTHORIZATION NUMBER: 00003653 wg• ri .1D1.9�-
180 Northeast 168th. Street / North Miami Beach, Florida. 33162
PIottad: 5/9/19 7:29a
Phone: 305-653-4493 / Fax 305-651-7152 / Email flsQflssu ey.com .Sheet
Cad. No. 190176
2016-170
Exhibit "E"
Ocean Terrace Parcel
see following page(s)
49183443;1
LEGAL DESCRIPTION:
A portion of the Right —of —Way of Ocean Terrace that adjoins Lots I through 7 in Block 1, of TOWNSITE OF
HARDING, according to the Plat thereof, as recorded in Plat Book 34 at Page 4, of the Public Records of
Miami —Dade County, Florida, being more particularly described as follows:
Begin at the Southeast corner of said Lot 7; thence North 02'58'50" West along the East line of said Block 1,
also being the West Right —of —Way line of said Ocean Terrace, (First Avenue per Plat Book 34 at Page 4) for
390.00 feet to.a point on the North line of Government Lot 7, lying in Section 2. Township 53 South, Range 42
East, also being the North line of Plot Book 34 at Page 4; thence North 86'59'28" East along said North line of
Government Lot 7 for 60.00 feet to a point on the East Right —of —Way line of said Ocean Terrace; thence South
02'58'50" East along said East Right —of —Way line for 420.00 feet to the centerline of 74th Street (Second Street
per Plat Book 34, Page 4); thence South 86'59'28" West, along said center line, for 60.00 feet; thence North
02'58'50" West along the Southerly extension of said East line of Block 1 for 30.00 feet to the Point of Beginning.
SURVEYOR'S NOTES:
— This site lies in Section 2, Township 53 South, Range 42 East, City of Miami Beach, Miami —bode County, Florida.
— Bearings hereon are referred to an assumed value of N 02'58'50" W for the centerline of Collins Avenue.
— Lands shown hereon were not abstracted for easements and/or rights —of —way of records.
— Lands shown hereon containing 25,200 square feet, or 0.537 acres, more or less.
— This is not a "Boundary Survey" but only a graphic depiction of the description shown hereon.
— Dimensions shown hereon are based on Fortin, Leavy, Skiles, sketch #2016-170—NGVD.
SURVEYOR'S CERTIFICATION:
I hereby certify that this "Sketch of Description" was made under my responsible charge on June 13, 2019, and
meets the applicable codes as set forth in the Florida Administrative Code, pursuant to Section 472.027, Florida
Statutes.
"Not valid without the signature and the original raised
seal of a Florida Licensed Surveyor and Mapper"
FORTIN, LEAVY, SKILES, INC., LB3653
By:
Daniel C. Fortin, Jr., For The Firm
Surveyor and Mapper, LS6435
State of Florida.
Drawn By DANJR
Cad. No. 190176
Ref. Dwg.
2016-170
Plotted: 5/9/19 7,29,
LEGAL DESCRIPTION, NOTES & CERTIFICATION
FORTIN, LEAVY, S KILES, INC.
CONSULTING ENGINEERS, SURVEYORS & MAPPERS
FLORIDA CERTIFICATE OF ATJ'M0PJZA17I0N NUMBER: 00003653
180 Northeast 168th_ Street / North Miami Beach, Florida. 33162
Phone: 305-653-4493 / Fax 305-651-7152 / Email fls aQflssurvey.com
Date 6/13/2019
Scale NOT TO SCALE
Job.4•.
~Ng, 1x3` 9 ' 7—Q
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in
75TH STREET
_ _ _ N86'59'281
NORTH LINE OFJ
(PUBLIC RIGHT OF WAY) 60.CV
GOVERNMENT LOT 7 c (FIRST STREET- PLAT BOOK 34 PAGE 4)
SECTION k c —SOUTH RIGHT WAY LINE
LINE OF S-?
NORTH LINE OF OF 75TH STREET —(/—
PLAT BOOK 34 PAGE 4 _
NORTH LINER
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GRAPHIC SCALE — OF LOT 7 7 Ed
0 30 60 120 �..r-� ------ 'N M
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CENTERUNE OF (SECOND STREET - PLAT BOOK 34 PAGE 4) Z. .
(� 74TH STREET -\74TH STREET_
1 inch = 60 tL (PUBLIC RIGHT OF WAY) 60.00'
DreTvn By DANJR SKETCH OF DESCRIPTION Dat
Cad. No. 3I,
1901760I:•=60 f
Ref. Dwg. F ORTIN, LEAVY, 5 KILES, INC. Job.
2016-170 CONSULTING ENGINEERS, SURVEYORS & MAPPERS.903'4
FLORTDA CERTIFICATE OF ATJTHORIZ.ATION NLTI.MER: 00003653 DAg. 07—Q
180 Northeast 168th. Street / North Miami Beach, Florida. 33162
Plotted: 5/9/19 7.29. Phone: 305-653- 493 / Fox 305-651-7152 / Email YlsQtlssurveyxo=n Sheet 2 of 3 .10
Drawn By DANJR
Cad. No. 190176
Ref. Dwg.
2016-170
Plotted: 5/9/19 7:29c
75TH STREET
LOCK 1
W
U
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cc
W
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1:10
73RD STREET
0,
72ND STREET
m
SUBJECT LEGAL DESCRIPTION
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LOCATION SKETCH
FORTIN, LEAVY, S KILES, INC.
CONSULTING ENGINEERS, SURVEYORS & MAPPERS
FLORMA CERTIFICATE OF AUTHORIZATION NUMBER: 00003653
180 Northeast 168th. Street / North Miami Beach, Florida. 33162
Phone: 305-653-"93 / Fax 305-651-7152 / Email fls4g flssu vey.com
Date 6Zj 3/2019
S94e N..6-r- , SCALE
x^g. l o. 1 '07—Q
Street Sob' 3
Exhibit T"
Development Site
Developer Propel
Lots 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 and 13 in Block 1 of Harding Townsite,
according to the Plat thereof, as recorded in Plat Book 34, Page 4, of the Public
Records of Miami -Dade County, Florida.
Ocean Terrace Parcel
A portion of the Right -of -Way of Ocean Terrace that adjoins Lots 1 through 7 in Block
1, of TOWNSITE OF HARDING, according to the Plat thereof, as recorded in Plat Book
34 at Page 4, of the Public Records of Miami -Dade County, Florida, being more
particularly described as follows:
Begin at the Southeast corner of said Lot 7; thence North 02°58'50" West along the
East line of said Block 1, also being the West Right -of -Way line of said Ocean Terrace,
(First Avenue per Plat Book 34 at Page 4) for 390.00 feet to a point on the North line of
Government Lot 7, lying in Section 2, Township 53 South, Range 42 East, also being
the North line of Plat Book 34 at Page 4; thence North 86059'28" East along said North
line of Government Lot 7 for 60.00 feet to a point on the East Right -of -Way line of said
Ocean Terrace; thence South 02°58'50" East along said East Right -of -Way line for
420.00 feet to the centerline of 74th Street (Second Street per Plat Book 34, Page 4);
thence South 86059'28" West, along said center line, for 60.00 feet; thence North
02°58'50" West along the Southerly extension of said East line of Block 1 for 30.00 feet
to the Point of Beginning.
741' Street Parcel
A portion of the Right -of -Way of 74th Street that adjoins Lots 7 and 14 in Block 1, of
TOWNSITE OF HARDING, according to the Plat thereof, as recorded in Plat Book 34 at
Page 4, of the Public Records of Miami -Dade County, Florida, being more particularly
described as follows:
Begin at the Southeast corner of said Lot 7; thence South 86059'28" West, along the
South line of said Lots 7 and 14, also being the North Right -of -Way line of 74th Street
(Third Street per Plat Book 34 at Page 4), for 296.00 feet to the Southwest corner of
said Lot 14; thence South 02058'50" East, along the Southerly prolongation of the West
line of said Lot 14, also being the East Right -of -Way line of Collins Avenue (Second
Avenue per Plat Book 34 at Page 4), for 30.00 feet to a point on the ce s of said
74th Street; thence North 86°59'28" East, along said center line, for/196&0-fi to a
point on the Southerly prolongation of the East line of said Lot; 7;orth
49183559;1
02058'50" West, along said Southerly prolongation, for 30.00 feet to the Point of
Beginning.
7511 Street Parcel
A portion of the Right -of -Way of 75th Street that adjoins Lots 1 and 8 in Block 1, of
TOWNSITE OF HARDING, according to the Plat thereof, as recorded in Plat Book 34 at
Page 4, of the Public Records of Miami -Dade County, Florida, being more particularly
described as follows:
Begin at the Northeast corner of said Lot 1; thence South 86°59'28" West along the
North line of said Lots 1 and 8, also being the South Right -of -Way line of said 75th
Street, (First Street per Plat Book 34 at Page 4) for 296.00 feet to the Northwest corner
of said Lot 8, also being a point on the East Right -of -Way line of Collins Avenue
(Second Avenue per Plat Book 34 at Page 4); thence North 02°58'50" West, along the
Northerly prolongation of the West line of said Lot 8, also being said East Right -of -Way
line of Collins Avenue for 40.00 feet to a point on the North line of Government Lot 7,
lying in Section 2, Township 53 South, Range 42 East, also being the North line of Plat
Book 34 at Page 4; thence North 86059'28" East along said North line of Government
Lot 7 for 296.00 feet; thence South 02058'50" East, along the Northerly prolongation of
the East line of said Lot 1, for 40.00 feet to the Point of Beginning.
49183559,1
Exhibit "G"
the Park/Streetscape Site
Ocean Terrace between the City Library property and the Bandshell Park
73, 74 and 75 Streets between Collins Avenue and Ocean Terrace
49034339;1
Prepared by and Return to:
Raul J. Aguila, City Attorney
City of Miami Beach
1700 Convention Center Drive, 4th Floor
Miami Beach, Florida 33139
EXHIBIT H
(Space Reserved for Clerk)
DECLARATION OF RESTRICTIVE COVENANTS
IN LIEU OF UNITY OF TITLE
KNOW ALL BY THESE PRESENTS that the undersigned Owners hereby make, declare and
impose on the land herein described, the following covenants that will run with the title to the land,
which shall be binding on the Owners, their heirs, successors, assigns, personal representatives,
mortgagees and lessees, and against all persons claiming by, through or under any of them;
IA/ITNFCCFTH
WHEREAS, the Owners hold fee simple title to certain property in the City of Miami Beach,
Florida, located at , Miami Beach, Florida, and which is legally described in
Exhibit "A" attached hereto and made a part hereof (the "Property"); and
WHEREAS, the Owners and the City of Miami Beach, a Florida municipal corporation (the
"City"), entered into that certain Development Agreement dated as of 20J a
memorandum of which is recorded in Official Records Book , at Page of the
Public Records of Miami -Dade County (the "Development Agreement'"); and
WHEREAS, on [date] the Owners obtained approval of the Historic Preservation
Board (HPB) under File No. as recorded in Official Records Book
, at Page of the Public Records of Miami -Dade; and
WHEREAS, the Owners may develop buildings on the Property for sale to multiple owners in a
condominium or non -condominium format of ownership and/or in one or more phases; and
WHEREAS, this instrument is executed in order to assure that the development of the
property with future multiple ownership or phased development will not violate the Land
Development Regulations of the City of Miami Beach.
NOW THEREFORE, in consideration of the premises, the Owners hereby agre J -Flows,
Declaration of Restrictive Covenants in Lieu of Unity of Title
Address
Folio No.: _
Page 2 of 9
1. After a site plan for the Property has been submitted and approved under the City's
Land Development Regulations, the Property will be developed as a unified development site in
substantial accordance with such approved site plan for the Property. No modification of such
approved site plan shall be effectuated without the written consent of the then owner(s) of the
portion or phase of the Property for which such proposed modification is sought and the Director of
the City's Planning Department (such person, or any successor thereof, is referred to herein as the
"Director"). -No such then owner(s) nor the Director shall unreasonably withhold, condition or delay
its consent, provided the proposed modification is in compliance with the Land Development
Regulations. Should any such then owner(s) or the Director withhold, condition or delay its consent
to any such proposed modification, then the owner(s) seeking the proposed modification shall be
permitted to seek the same by application to modify the approved site plan at public hearing before
the appropriate City board or the City Commission of Miami Beach, Florida (whichever by law has
jurisdiction over such matters). Approval of such application shall be in addition to all other required
approvals necessary for the proposed modification sought. Notwithstanding anything to the contrary
contained in this Declaration: (a) if any building on the Property (or portion of a building) is developed
and sold to multiple owners in a condominium format or non -condominium format of ownership with
an owners' association, then only the owners' association (as opposed to each individual unit owner
governed by the owners' association) shall be required to give, grant or execute any consent,
approval or document required by this Declaration, and such consent, approval or document as
given, granted or executed by the owners' association shall bind each and every individual unit owner
in such building (or portion of the building) governed by the owners' association; (b) if the Property is
developed in phases, then only the owner(s) of the phase(s) affected by the proposed modification
shall be required to give, grant or execute any consent, approval or document required by this
Declaration, and no consent, approval or document shall be required from the owner(s) of any
phase(s) unaffected by such proposed modification shall be required; (c) the City shall not be
required to obtain any consent, approval or document from any owner with respect to any proposed
modification (including any subsequent zoning application) relating to the "Park/Streetscape Site" (as
such term is defined in the Development Agreement); and (d) this Declaration of Restrictive
Covenants in Lieu of Unity of Title (the "Declaration") shall not create any additional obligations for
the Owners (or their respective successors and/or assigns) to obtain any consent, approval or
document from the City with respect to any proposed modification (including any subsequent zoning
application) relating to the "Development Site" (as such term is defined in the Development
Agreement), other than the written consent of the Director for modifications to the approved site
plan, as provided above. Nothing contained in the preceding sentence shall relieve the Owners (and
their successors and assigns) from the obligation to obtain any approvals or authorizations from the
City required by law or any other instrument or agreement apart from this Declaration.
2 -
Declaration of Restrictive Covenants in Lieu of Unity of Title
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2. If the Property is developed in phases, then each phase will be developed in
substantial accordance with the approved site plan for the Property.
3. In the event the Owners shall convey any portion of the Property to any person or
entity subsequent to site plan approval for the Property, each of the subsequent owners shall be
bound by the terms, covenants, restrictions and limitations of this Declaration. Owners further agree
that they will not convey portions of the Property to any other person or entity unless and -until the
Owners and such other person or entity shall have mutually executed and delivered, in recordable
form, an instrument to be known as an "easement and operating agreement" which shall contain,
among other things, the following easements to the extent required for the Property to be
developed, constructed, conveyed, maintained and operated in accordance with the approved site
plan for the Property despite the Property having multiple owners:
(i) Easements in the common area of each parcel for ingress to and egress from the other
parcels;
(ii) Easements in the common area of each parcel for the passage and parking of vehicles:
(iii) Easements in the common area of each parcel for the passage and accommodation of
pedestrians;
(iv) Easements for access roads across the common area of each parcel to public and
private roadways;
(v) Easements for the installation, use, operation, maintenance, repair, replacement,
relocation and removal of utility facilities in appropriate areas in each such parcel;
(vi) Easements on each such parcel for construction of buildings and improvements in
favor of each such other parcel;
(vii) Easements upon each such parcel in favor of each adjoining parcel for the installation,
use, maintenance, repair, replacement and removal of common construction
improvements such as footings, supports and foundations;
(viii) Easements on each parcel for attachment of buildings;
(ix) Easements on each parcel for building overhangs and other overhangs and projections
encroaching upon such parcel from the adjoining parcels such as, by way of example,
marquees, canopies, lights, lighting devices, awnings, wing walls and the like;
(x) Appropriate reservation of rights to grant easements to utility companies;
(xi) Appropriate reservation of rights to grant road rights -of -way and curb cuts;
(xii) Easements in favor of each such parcel for pedestrian and vehicular traffic over
dedicated private ring roads and access roads; and
Declaration of Restrictive Covenants in Lieu of Unity of Title
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(xiii) Appropriate agreements between the owners of the several parcels as to the
obligation to maintain and repair all private roadways, parking facilities, common areas
and common facilities and the like.
These easement, reservation and agreement provisions (or portions thereof) will be waived by the
Director if they are not applicable to the portion of the Property then being conveyed (such as, but
not limited to, conveyances to purchasers of individual condominium units, or conveyance that are
separated by a street or road). These easement, reservation and agreement provisions shall not
otherwise be waived or amended without prior written approval of the City Attorney. In addition,
the easement and operating agreement shall contain such other provisions with respect to the
development, construction, conveyance, maintenance and operation of the Property as to which the
parties thereto may agree, all to the end that although the Property may have several owners, it will
be developed, constructed, conveyed, maintained and operated in accordance with the site plan
approved for the Property.
4. The provisions of this Declaration shall become effective upon their recordation in the
public records of Miami -Dade County, Florida, and shall continue in effect for a period of thirty (30)
years after the date of such recordation, after which time they shall be extended automatically for
successive periods of ten (10) years each, unless released in writing by the then owner(s) of the
Development Site and the Director (acting for and on behalf of the City) upon the demonstration and
affirmative finding that the same is no longer necessary to preserve and protect the Development
Site for the purposes herein intended.
5. The terms, covenants, restrictions and limitations of this Declaration may be amended,
modified or released by a written instrument executed by the then owner(s) of the Development Site
(with joinders by all mortgagees) and the Director (acting for and on behalf of the City). Should this
Declaration be so modified, amended or released, then the Director shall forthwith execute a written
instrument effectuating and acknowledging such amendment, modification or release; it being
acknowledged and agreed that no amendment, modification or release of this Declaration shall be
effective without the Director's written approval of, or execution of a written instrument effectuating
and acknowledging, such amendment, modification or release.
6. Enforcement of the terms, covenants, restrictions and limitations of this Declaration
shall be by action against any parties or persons violating or attempting to violate any such terms,
covenants, restriction or limitation of this Declaration. The prevailing party to in action or suit
pertaining to or arising out of this Declaration shall be entitled to recover, in addition to costs and
disbursements, allowed by law, such sum as the Court may adjudge to be reasonable for the services
A
4 `,,;
Declaration of Restrictive Covenants in Lieu of Unity of Title
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of his attorney. As used herein, the term "prevailing party" means the party who receives
substantially the relief sought upon final, non -appealable judgment, order, or other disposition of a
court of competent jurisdiction. This enforcement provision shall be in addition to any other
remedies available at law, in equity or both.
7. Invalidation of any term, covenant, restriction or limitation of this Declaration by a
final, non -appealable order of a court of competent jurisdiction shall not affect any of the other term,
covenant, restriction or limitation of this Declaration, all of which shall remain in full force and effect.
8. This Declaration shall be recorded in the public records of Miami -Dade County at the
Owners' expense.
9. All rights, remedies and privileges granted herein shall be deemed to be cumulative
and the exercise of any one or more shall neither be deemed to constitute an election of remedies,
nor shall it preclude the party exercising the same from exercising such other additional rights,
remedies or privileges.
10. In the event of any violation of this Declaration, in addition to any other remedies
available, the City is hereby authorized to withhold any future permits, and refuse to make any
inspections or grant any approval, until such time as this Declaration is complied with.
11. This Declaration is recorded for the limited purpose of ensuring that the Property is
developed as a unified development site under the City's land development regulations and is not
intended to and does not modify, limit, or derogate any rights or privileges that may benefit the
Property or any portion thereof, including, without limitation, any available exemption from or
reduction in ad valorem taxation and assessments, nor does this Declaration prohibit the division of
the Property into independent tax parcels and folios as the Owner may deem necessary or
appropriate in its sole discretion, and all such rights and privileges are hereby expressly reserved.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK —SIGNATURE PAGES TO FOLLOW]
1P�. cicri n
5
Declaration of Restrictive Covenants in Lieu of Unity of Title
Address
Folio No.:
Page 6 of 9
Signed, witnessed, executed and acknowledged on this day of
[*Note: All others require attachment of original corporate resolution of authorization]
WITNESSES: OWNER:
Signature
Print Name
Signature
Print Name
STATE OF
COUNTY OF
Individual Signature
Print Name
Name of Corporate Entity
Position with Corporate Entity (Prez. VP, CEO)
Address:
The foregoing instrument was acknowledged before me by
who is personally known to me or has produced
as identification.
Witness my signature and official seal this day of
in the County and State aforesaid.
My Commission Expires:
Notary Public -State of
Print Name
Signed, witnessed, executed and acknowledged on this
N.
day of
Declaration of Restrictive Covenants in Lieu of Unity of Title
Address
Folio No.: _
Page 7 of 9
WITNESSES:
Signature
OWNER:
Individual Signature
Print Name Print Name
Signature
Print Name
STATE OF
COUNTY OF
Address:
The foregoing instrument was acknowledged before me by
, who is personally known to me or has produced
as identification.
Witness my signature and official seal this day of , in
the County and State aforesaid.
My Commission Expires:
VA
Notary Public -State of
Print Name
Declaration of Restrictive Covenants in Lieu of Unity of Title
Address _
Folio No.: _
Page 8 of 9
Approved:
Approved as to form & language & for
execution:
Director of Planning Date City Attorney Date
Declaration of Restrictive Covenants in Lieu of Unity of Title
Address _
Folio No.: _
Page 9 of 9
EXHIBIT A
This instrument was prepared by:
Name:
Address:
Exhibit "I"
HOLD HARMLESS AGREEMENT
WHEREAS, the undersigned owners, (collectively, the "Owners:'), hold
the fee simple title to that certain parcel of land, which is legally described in Exhibit "A", hereinafter the
"Property";
WHEREAS, the Owners and the City of Miami Beach (the "City") have entered into a
Development Agreement pursuant to Sections 163.3220-163.3243, Florida Statutes, the "Florida Local
Government Development Agreement Act" and Section 118-4 of the City's Code (the "Development
Agreement");
WHEREAS, the Development Agreement contemplates that the Owners will develop, design and
construct certain park/streetscape improvements on a portion of the Property for use by the general public
(the "Park/Streetscape Site"), which parcel is legally described in Exhibit `B" (the "Park/Streetscape
Project");
WHEREAS, the Development Agreement contemplates that the Owners will construct a proposed
mixed use development consistent with the City's Land Development Regulations for the Ocean Terrace
Overlay District and in accordance with the requirements of the Development Agreement (the "Project")
on a portion of the Property (the "Development Parcel"), which parcel is legally described in Exhibit "C";
WHEREAS, as contemplated under the Development Agreement, the Owners wish to obtain
building permits, including phased permits, for the construction of the Project prior to the completion and
acceptance by the City of the Park/Streetscape Project (the `Building Permits");
WHEREAS, the Development Agreement provides that until the Owners have improved, and the
City has accepted, both "Phase 1" and "Phase 2" of the Park/Streetscape Project as defined in the
Development Agreement, or until such condition is deemed satisfied in accordance with the terms of the
Development Agreement, the Owners are not to receive any certificate of occupancy or a temporary
certificate of occupancy for any part of the Project (the "Park Contingency");
NOW, THEREFORE, in order to assure the City that the representations made by the Owners in
the Development Agreement will be abided by, the Owners freely, voluntarily, and without duress, make
the following declaration of restrictions covering and running with the Property:
1. Owners agree that no certificate of occupancy or temporary certificate of occupancy for
the Project will be granted until the Park Contingency has been satisfied.
2. Owners agree that they will not file or cause to be filed any request for a certificate of
occupancy or temporary certificate of occupancy for any part of the Project until the Park
Contingency has been satisfied.
pg. 1
49210512;4
Exhibit "I"
Owners acknowledge that, if they obtain the Building Permits prior to the satisfaction of
the Park Contingency, they will be proceeding at their own risk and agree that they will not
make or commence any claim or action against the City (including, without limitation, a
vested/property rights claim) as a result of the City's issuance of the Building Permits prior
to the satisfaction of the Park Contingency. Further, Owners agree that the issuance of the
Building Permits prior to the satisfaction of the Park Contingency would not be a grant of
any vested right whatsoever to the Owners to occupy the Project prior to the satisfaction of
the Park Contingency.
4. Owners acknowledge that condition (1) above shall appear on the face of any and all
Building.Permits issued by the City pursuant to this Agreement prior to the satisfaction of
the Park Contingency.
5. Owners acknowledge that the City, in its regulatory capacity, reserves the right to evaluate
all applications for Building Permits for compliance with all existing laws, ordinances, and
regulations controlling the issuance of building permits for construction within the City.
6. Owners agree to indemnify, defend, save, and hold harmless the City from any claims,
demands, liabilities, losses, and causes of action of any nature whatsoever actually
sustained by or brought against the City due to the City's issuance of Building Permits for
the Project prior to the satisfaction of the Park Contingency in accordance with this
Agreement, including, without limitation, reasonable, out-of-pocket attorneys' fees and
expenses incurred by the City in the defense of any such claim, demand, or cause of action.
7. Additional Provisions:
a. Covenant Running with the Land. This Agreement shall constitute a covenant
running with the land and may be recorded, at Owners' expense, in the public records of Miami -Dade
County, Florida, and shall remain in full force and effect and be binding upon the Owners, and their heirs,
successors, and assigns until such time as the same is modified, released, terminated or extinguished
(including, without limitation, pursuant to paragraph 7(b) below). These restrictions during their lifetime
shall be for the benefit of, and a limitation upon, all present and future owners of the Property and for the
benefit of the City and the public welfare. However, notwithstanding any other provision of this Agreement,
nothing herein shall be binding upon the City in the event that the City takes ownership to any portion of
the Property, and Owners, and their heirs, successors, and assigns, acknowledge that acceptance of this
Agreement does not in any way obligate or provide a limitation on the City.
b. Term. This Agreement is to run with the land and shall be binding on all parties
and all persons claiming under it for a period of thirty (30) years from the date this Agreement is recorded
after which time it shall be extended automatically for successive periods of ten (10) years each, unless
earlier terminated, modified, or released as provided in this Agreement. Notwithstanding the foregoing, this
Agreement shall terminate automatically upon the earlier of (i) the satisfaction of the Park Contingency in
accordance with the terms of the Development Agreement, or (ii) the expiration or termination of the
Development Agreement (other than termination by the City for an uncured Developer "Event of
Default," as defined in the Development Agreement). The City covenants and agrees, promptly upon
the request of the then-owner(s) of the Property following such termination, to execute and deliver to
such then-owner(s) an instrument in recordable form that terminates, releases, and discharges this
Agreement from the Property and the public record.
pg.2
49210512;4
Exhibit "I"
c. Modification, Amendment, Release. Except as provided in Paragraph 7(b) above
with respect to the automatic termination and extinguishment of this Agreement, this Agreement may be
modified, amended or released as to the Property, or any portion thereof, by a written instrument executed
by the then-owner(s) of the Property, including joinders of all mortgagees, if any, provided that the same is
also approved by the City.
d. Enforcement. Enforcement shall be by action against any parties or persons
violating, or attempting to violate, any term, covenant, condition, or provision of this Agreement. The
prevailing party in any action or suit pertaining to or arising out of this Agreement shall be entitled to
recover, in addition to costs and disbursements allowed by law, such sum as the court may adjudge to be
reasonable for the services of his attorney. As used herein, the term "prevailing party" means the party who
receives substantially the relief sought upon final, non -appealable judgment, order, or other disposition of
a court of competent jurisdiction. This enforcement pro"vision shall be in addition to any other remedies
available at law, in equity or both.
e. Election of Remedies. All rights, remedies and privileges granted herein shall be
deemed to be cumulative and the exercise of any one or more shall neither be deemed to constitute an
election of remedies, nor shall it preclude the party exercising the same from exercising such other
additional rights, remedies or privileges.
f. No Restriction of Regulatory Remedies. The City shall retain all regulatory
remedies and enforcement powers associated with the review, issuance, and enforcement of building
permits and their requirements, and the remedies and privileges granted herein shall be deemed to be
cumulative to any such regulatory remedies and enforcement powers.
g. Severability. Invalidation of any one of the terms, covenants, conditions, or
provisions of this Agreement, by judgment of court of competent jurisdiction, shall not affect any of the
other terms, covenants, conditions, or provisions of this Agreement, which shall remain in full force and
effect.
h. Recording. This Agreement shall be filed of record in the public records of
Miami -Dade County, Florida at the cost of the Owners. This Agreement shall become effective
immediately upon recordation.
i. Acceptance of Agreement. Acceptance of this Agreement does not obligate the
City in any manner to make, nor does it entitle the Owners to, a favorable recommendation or approval of
any application, zoning or otherwise, and the City and its boards, departments and/or agencies retain their
full power and authority to deny each such application in whole or in part and to decline to accept any
conveyance or dedication.
j. Owner. The term Owners shall include the Owners and their heirs, successors,
and assigns, except that Owners shall not refer to the City.
[Execution Pages Follow]
pg. 3
49210512;4
IN WITNESS WHEREOF,
on this day of
WITNESSES:
Signature
Print Name
Signature
Print Name
STATE OF FLORIDA )
) SS:
COUNTY OF MIAMI-DADS )
Exhibit "I"
201_.
., has caused these present to be signed in its name
company
By:
Print Name:
Title:
Address-
a Florida limited liability
The foregoing instrument was acknowledged before me this _ day of 201_, by
, as of a Florida limited
liability company, on behalf of said corporation, who is personally known to me or has produced
as identification.
My Commission Expires:
Notary Public — State of Florida
Printed Name
pg. 4
4921051214
Exhibit "I"
EXHIBIT "A"
LEGAL DESCRIPTION:
44210512;4
pg. 5
Exhibit "I"
EXHIBIT "B"
LEGAL DESCRIPTION:
pg. 6
492I0512;4
Exhibit "I"
EXHIBIT "C"
LEGAL DESCRIPTION:
PB• 7
4921051214
EXHIBIT w"J"
CONCEPT AND PHASING PLANS
jot
PHASING PLAN
_,. � � h�m� �� „w d r�-_ � �� $ r�3'{•��El� ;4Y_ � h sy: _ t x..�
Exhibit "K"
Vacation Resolution
see following page(s)
RESOLUTION NO. 2019-30927
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, APPROVING, ON SECOND READING/PUBLIC
HEARING OF THIS RESOLUTION, THE VACATION OF THAT PORTION OF (1)
OCEAN TERRACE, BETWEEN THE CENTERLINE OF 74th STREET AND THE
NORTHERN RIGHT-OF-WAY LINE OF 75th STREET, WHICH CONSISTS OF A 60-
FOOT WIDE RIGHT-OF-WAY CONTAINING APPROXIMATELY 25,200 SQUARE
FEET IN TOTAL LOT AREA; (2) THE NORTH HALF OF 74th STREET, BETWEEN
OCEAN TERRACE AND COLLINS AVENUE, WHICH CONSISTS OF A 30-FOOT
WIDE RIGHT-OF-WAY CONTAINING APPROXIMATELY 8,880 SQUARE FEET IN
TOTAL LOT AREA; AND (3) A PORTION OF 75th STREET, BETWEEN OCEAN
TERRACE AND COLLINS AVENUE; WHICH CONSISTS OF A 40-FOOT WIDE
RIGHT-OF-WAY CONTAINING APPROXIMATELY 11,840 SQUARE FEET IN TOTAL
LOT AREA (COLLECTIVELY, THE "CITY RIGHT-OF-WAY AREAS"), IN FAVOR OF
THE ABUTTING PROPERTY OWNERS, 7400 OCEAN TERRACE, LLC, 7410 OCEAN
TERRACE, LLC, 7420 OCEAN TERRACE INVESTMENT, LLC, 7436 OCEAN
TERRACE, LLC, 7450 OCEAN TERRACE, LLC, AND 7441 COLLINS AVENUE
INVESTMENT, LLC (COLLECTIVELY, THE "DEVELOPER") AND G & V REALTY,
LLC, THE OWNER OF 7401 COLLINS AVENUE; CONDITIONING THE VACATION
UPON THE CITY COMMISSION'S APPROVAL OF, AND DEVELOPER'S
SATISFACTION OF, CERTAIN TERMS AND CONDITIONS, TO BE SET FORTH IN A
DEVELOPMENT AGREEMENT BETWEEN THE CITY AND DEVELOPER, WHICH
CONDITIONS SHALL, AMONG OTHER TERMS, REQUIRE THE DEVELOPER TO (1)
GRANT TO THE CITY A PERPETUAL EASEMENT OVER, ACROSS AND UNDER
THE CITY RIGHT-OF-WAY AREAS FOR UTILITIES AND PUBLIC VEHICULAR,
PEDRESTRIAN AND RECREATIONAL USE AND ACCESS; AND (2) DEVELOP,
DESIGN, AND CONSTRUCT, AT THE DEVELOPER'S SOLE COST AND EXPENSE
(EXCEPT FOR PAYMENT OF CERTAIN CITY FEES), CERTAIN PUBLIC PARK AND
STREETSCAPE IMPROVEMENTS IN THE VICINITY OF OCEAN TERRACE,
BETWEEN 73RD STREET AND 75TH STREET, WITH SUCH PUBLIC
IMPROVEMENTS HAVING A VALUE OF APPROXIMATELY FOURTEEN MILLION
EIGHT HUNDRED THOUSAND DOLLARS ($14,800,000); AND FURTHER,
WAIVING, BY 5/7THS VOTE, THE COMPETITIVE BIDDING REQUIREMENT,
PURSUANT TO SECTION 82-38 OF THE CITY CODE, FINDING SUCH WAIVER
TO BE IN THE BEST INTEREST OF THE CITY.
WHEREAS, the City holds a right-of-way dedication to the following right-of-way areas;
(1) a portion of Ocean Terrace, running from the centerline of 741' Street and the northern
right-of-way line of 7511' Street, consisting of a sixty (60) foot wide right-of-way, and containing
approximately 25,200 square feet in total lot area; as shown on as shown on the Plat of the
Townsite of Harding, recorded in Plat Book 34, Page 4 of the Public Records of Miami -Dade
County (the "Harding Townsite Plat");
(2) the north half of 74th Street, between Ocean Terrace and Collins Avenue, which
consists of a 30-foot wide right-of-way containing approximately 8,880 square feet in total lot area;
and
(3) a portion of 75th Street, between Ocean Terrace and Collins Avenue, which consists
of a 40-foot wide right-of-way containing approximately 11,840 square feet in total lot area
(collectively, (1) through (3) above, the "City Right -of -Way Areas"), each as shown on the Harding
Townsite Plat, and depicted in the sketch attached as Exhibit "A" to the Commission
Memorandum accompanying this Resolution; and
WHEREAS, various entities controlled by and affiliated with the principals of Ocean
Terrace Holdings, LLC, namely, 7400 Ocean Terrace, LLC, 7410 Ocean Terrace, LLC, 7420
Ocean Terrace investment, LLC, 7436 Ocean Terrace, LLC, 7450 Ocean Terrace, LLC, and 7441
Collins Avenue Investment, LLC (collectively, the "Developer"), and G&V Realty, LLC (the owner
of 7401 Collins Avenue), own the properties abutting or in the vicinity of the City Right -of -Way
Areas; which parcels are known as 7401, 7409, 7421, 7433, 7435, 7437, 7439, 7441, and 7449
Collins Avenue, and 7400, 7410, 7420, 7430, 7436, and 7450 Ocean Terrace (collectively, the
"Property"); and
WHEREAS, the Developer intends to develop the Property as a mixed -use residential and
commercial development (collectively, the "Proposed Development") pursuant to a Florida
Statute Chapter 163 development agreement entered into between the City and the Developer
(the "Development Agreement''), and to develop, design and construct, at the Developer's sole
cost and expense, certain public park and streetscape improvements in the vicinity of Ocean
Terrace, between 73rd Street and 75th Street; and
WHEREAS, the Proposed Development shall be developed as a unified development site;
and
WHEREAS, in conjunction with Proposed Development, the Developer is requesting that
the City vacate the City Right -of -Way Areas abutting 7401, 7441, and 7449 Collins Avenue and
7400, 7410, 7420, 7430, 7436, and 7450 Ocean Terrace, and has submitted its application to the
City's Public Works Department with respect thereto, to permit Developer to utilize the F.A.R.
associated with the City Right -of -Way Areas within the Developer's Project (but with the City
Right -of -Way Areas to continue to be used for pedestrian and vehicular access and travel); and
WHEREAS, with respect to the proposed vacation of the 4,380 square feet of City right-
of-way abutting 7401 Collins Avenue, the proposed vacation shall be subject to and contingent
on Developer's agreement with the property owner to include the vacated right-of-way area as
part of the unified development site for the Project; and
WHEREAS, the vacation of City streets, alleys, and/or rights of way, require compliance
with Article II, Sections 82-36 through 82-40, of the City Code (which establish the procedures
governing the sale or lease of public property);
WHEREAS, prior to approving a request for vacation, the following requirements must
be satisfied: (1) the title of the Resolution approving the proposed vacation shall be heard by
the City Commission on two separate meeting dates, with the second reading to be
accompanied by a duly noticed public hearing; (2) the proposed vacation shall be transmitted
to the Finance and Citywide Projects Committee (the "Finance Committee") for its review; (3) the
City's Planning Department shall prepare a written planning analysis, to be submitted to the City
Commission concurrent with its consideration of the proposed vacation; and (4) the City shall
obtain an independent appraisal of the fair market value of the property proposed to be vacated;
and
WHEREAS, the Finance Committee reviewed the proposed vacation at its March 22, 2019
meeting, which recommendations were accepted by the City Commission in Resolution No. 2019-
30771; and
WHEREAS, the Planning Department analysis of the vacation, pursuant to Section 82-38
of the City Code, is attached as Exhibit "B" to the Commission Memorandum accompanying this
Resolution; and
WHEREAS, the July 3, 2019 appraisal of the City Right -of -Way Areas, which appraisal is
attached as Exhibit "C" to the Commission Memorandum accompanying this Resolution, valued
the City Right -of -Way Areas at $12,400,000); and
WHEREAS, on December 12, 2018, the City Commission unanimously adopted the
Ocean Terrace Neighborhood Urban Design Plan, a concept plan for proposed public streetscape
and park improvements to the Ocean Terrace area ("Concept Plan"), prepared by The Corradino
Group and Garcia -Pons + Associates; and
WHEREAS, on March 22, 2019, the Finance Committee recommended proceeding with
the vacation process, subject to the following public benefits being memorialized in the
Development Agreement:
1. Developer would develop, design, permit and construct, at its sole cost and
expense, certain public park and streetscape improvements in the vicinity of Ocean Terrace,
between 73rd Street and 75th Street, based on the Concept Plan approved by the City
Commission; and
2. Developer would grant a perpetual, non -revocable utility, roadway and pedestrian
access easement in favor of the City against the City Right -of -Way Areas, for public vehicular and
pedestrian use and access, as modified by the public improvements, which will pedestrianize
portions of Ocean Terrace; and
WHEREAS, Section 82-39(a) of the City Code provides that the lease or sale of public
property also requires an advertised public bidding process, which requirement may be waived
by 5/71h vote of the City Commission; and
WHEREAS, Florida law, requires, upon vacation, a right-of-way reverts to the abutting
property owners and/or the holders of any interest in any reversionary rights to the vacated area;
and
WHEREAS, as the abutting property owners and holders of the appropriate reversionary
interests are the only persons entitled to the vacation, the City Administration recommends that
the Mayor and City Commission waive the competitive bidding requirement, finding that the public
interest is served by waiving such condition; and
WHEREAS, pursuant to the requirements of Section 1.03(b)(4) of the City Charter, the
Planning Board at its May 21, 2019 meeting, unanimously approved the proposed vacation; and
WHEREAS, Section 1.03 (b)(4) of the City Charter also requires that the vacation be
approved by 6/71hs vote of the City Commission; and
WHEREAS, on June 26, 2019, the Mayor and City Commission held the first reading of
this Resolution and the companion agenda items (for the proposed Development Agreement and
amendments to the City's Land Development Regulations), and read the title of the vacation
Resolution into the record as required by Section 82-37 of the City Code; and
WHEREAS, the Administration, recommends approval of the vacation at second reading,
subject to the Developer's satisfaction of the terms and conditions set forth in the Development
Agreement.
NOW THEREFORE BE IT DULY RESOLVED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City
Commission hereby approve, on second reading of this Resolution, the vacation of that
portion of (1) Ocean Terrace, between the centerline of 74th Street and the northern right-of-way
line of 75th Street, which consists of a 6.0-foot wide right of way containing approximately 25,200
square feet in total lot area; (2) the north half of 74th Street, between Ocean Terrace and Collins
Avenue, which consists of a 30-foot wide right of way containing approximately 8,880 square feet
in total lot area; and (3) a portion of 75th Street, between Ocean Terrace and Collins Avenue,
which consists of a 40-foot wide right-of-way containing approximately 11,840 square feet in total
lot area (collectively, the "City Right -of -Way Areas"), in favor of the abutting property owners, 7400
Ocean Terrace, LLC, 7410 Ocean Terrace, LLC, 7420 Ocean Terrace Investment, LLC, 7436
Ocean Terrace, LLC, 7450 Ocean Terrace, LLC, and 7441 Collins Avenue Investment, LLC
(collectively, the "Developer") and G & V Realty, LLC, the owner of 7401 Collins Avenue;
conditioning the vacation upon the City Commission's approval of, and Developer's
satisfaction of, certain terms and conditions, to be set forth in a development agreement
between the City and Developer, which conditions shall, among other terms, require the
Developer to (1) grant to the City a perpetual easement over, across and under the City Right -of -
Way Areas for utilities and public vehicular, pedestrian, and recreational use and access; and (2)
develop, design, and construct, at the Developer's sole cost and expense (except for the payment
of certain City fees), certain public park and streetscape improvements in the vicinity of Ocean
Terrace, between 73rd Street and 75th Street, with such public improvements having a value of
approximately Fourteen Million Eight Hundred Thousand Dollars ($14,800,000); and further,
waive, by 5/7ths vote, the competitive bidding requirement, pursuant to Section 82-38 of the
City Code, finding such waiver to be in the best interest of the City.
PASSED and ADOPTED this 9/ day of July, 2019.
ATTEST:
Rafa G. n do, City Clerk
1-4� 1 - .. - � .. ,._ ,.
Dan Gelber, ayor
APPROVED AS TO
IAM111,IRAM A I NEIGHBORS I I25NE
fAlAMliiE,4AlD.COM
CITY OF MIAMI BEACH
NOTICE OF PUBLIC HEARING
July 31, 2019
NOTICE IS HEREBY given that a Second Reading/Public Hearing will be heard by the Mayor and City Commission of the City of Miami
Beach, Florida, in the Commission Chambers, 3rd Floor, City Hall, 1700 Convention Center Drive, Miami Beach, Florida, on Wednesday,
July 31, 2019 at 11:40 a.m., or as soon thereafter as the matter can be heard, to consider.
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, APPROVING,
FOLLOWING SECOND READING/PUBLIC HEARING OF THIS RESOLUTION, THE VACATION OF THAT PORTION OF (1)
OCEAN TERRACE, BETWEEN THE CENTERLINE OF 74TH STREET AND THE NORTHERN RIGHT-OF-WAY LINE OF 75TH STREET,
WHICH CONSISTS OF A 60-FOOT WIDE RIGHT-OF-WAY CONTAINING APPROXIMATELY 25,200 SQUARE FEET IN TOTAL LOT
AREA; (2) THE NORTH HALF OF 74TH STREET, BETWEEN OCEAN TERRACE AND COLLINS AVENUE, WHICH CONSISTS OF A
30-FOOT WIDE RIGHT-OF-WAY CONTAINING APPROXIMATELY 8,880 SQUARE FEET IN TOTAL LOT AREA; AND (3) A PORTION
OF 75TH STREET, BETWEEN OCEAN TERRACE AND COLLINS AVENUE, WHICH CONSISTS OF A 40-FOOT WIDE RIGHT-OF-
WAY CONTAINING APPROXIMATELY 11,840 SQUARE FEET IN TOTAL LOT AREA (COLLECTIVELY, THE "CITY RIGHT-OF-WAY
AREAS"), IN FAVOR OF THE ABUTTING PROPERTY OWNERS, 7400 OCEAN TERRACE, LLC, 7410 OCEAN TERRACE, LLC,
7420 OCEAN TERRACE INVESTMENT, LLC, 7436 OCEAN TERRACE, LLC, 7450 OCEAN TERRACE, LLC, AND 7441 COLLINS
AVENUE INVESTMENT, LLC (COLLECTIVELY, THE "DEVELOPER") AND G & V REALTY, LLC, THE OWNER OF 7401 COLL114S
AVENUE; CONDITIONING THE VACATION UPON THE CITY COMMISSION'S APPROVAL OF, AND DEVELOPER'S SATISFACTION
OF, CERTAIN TERMS AND CONDITIONS, TO BE SET FORTH IN A DEVELOPMENT AGREEMENT BETWEEN THE CITY AND
DEVELOPER, WHICH CONDITIONS SHALL, AMONG OTHER TERMS, REQUIRE THE DEVELOPER TO (1) GRANT TO THE CITY
A PERPETUAL UTILITY, ROADWAY AND PEDESTRIAN ACCESS EASEMENT OVER, ACROSS AND UNDER THE CITY RIGHT-
OF-WAY AREAS; AND (2) OBLIGATE THE DEVELOPER TO DEVELOP, DESIGN, AND CONSTRUCT, AT THE DEVELOPER'S
SOLE COST AND EXPENSE (EXCEPT FOR PAYMENT OF CERTAIN CITY FEES), CERTAIN PUBLIC PARK AND STREETSCAPE
IMPROVEMENTS IN THE VICINITY OF OCEAN TERRACE, BETWEEN 73RD STREET AND 75TH STREET{ WITH SUCH PUBLIC
IMPROVEMENTS HAVING A VALUE OF APPROXIMATELY FIFTEEN MILLION DOLLARS ($15,000,000); FURTHER, WAIVING, BY
5/7TH VOTE, THE COMPETITIVE BIDDING REQUIREMENT, PURSUANT TO SECTION 82-38 OF THE CITY CODE, FINDING
SUCH WAIVER TO BE IN THE BEST INTEREST OF THE CITY,
This Resolution is being heard pursuant to Section 82-37 of the City of Miami Beach Code or Ordinances, and Section 1.03(b)(4) of the City
Charter.
A copy of the proposed Development Agreement that is related to this item is available for public inspection during normal business hours in
the Office of the City Clerk, 1700 Convention Center Drive, 1st Floor, City Nall, A4iami Beach, Florida 33139.
INTERESTED PARTIES are invited to appear at this meeting, or be represented by an agent, or to express their views in writing addressed
to the City Commission, c!o the City Clerk, 1700 Convention Center Drive, 1" Floor, City Hall, Miami Beach, Florida 33139, This item is
available for public inspection during normal business hours in the City Clerk's Office, 1700 Convention Center Drive, 111' Floor, City Hail,
tliami Beach, Florida 33139. This meeting, or any item herein, may be continued, and under such circumstances, additional legal notice
need not be provided. Pursuant to Section 286.0105, Fla. Stat., the City hereby advises the public that if a person decides to appeal any
decision made by the City Commission with respect to any matter considered at its meeting or its hearing, such person must ensure that a
verbatim record of the proceedings is made, which record includes the tesfimony and evidence upon which the appeal is to be based. This
notice does not constitute consent by the City for the introduction or admission of otherwise inadmissible or irrelevant evidence, nor does
it authorize challenges or appeals not otherwise allowed by law.
To request this material in alternate format, sign language interpreter (five-day notice required), infonnation on access for persons with
disabilities; and/or any accommodation to review any document or participate in any City -sponsored proceedings, call 305.604.2489 and
select option 6; TTY users may call via 711 (Florida Relay Service).
Rafael E- Granada, City Clerk
City of Miami Beach
Ad 073119-02
EXHIBIT "L"
This instrument was prepared by:
Name: Raul J. Aguila, City Attorney
Address: City of Miami Beach
1700 Convention Center Drive, 41 Floor
Miami Beach, Florida 33139
EASEMENT AGREEMENT
(Ocean Terrace, 74" Street and 75te Street Easement)
THIS EASEMENT AGREEMENT (the "Agreement"), is made this day of
201_, by having an address of
(together with its successors and permitted assigns, the "Owner") in
favor of the City of Miami Beach, a Florida municipal corporation (together with its successors and
permitted assigns, the "City").
WITNESSETH:
WHEREAS, the Owner holds fee simple title to that certain real property more specifically
described on Exhibit "A" attached hereto and incorporated herein by this reference (the "Property");
WHEREAS, the real property more specifically described on Exhibit "B" attached hereto and
incorporated herein by this reference (the "Easement Area") is contained within the Property; and
WHEREAS, the Owner seeks to grant a perpetual non-exclusive easement in, upon, under and
through the Easement Area in favor of the City for the "Easement Purposes" (as hereinafter defined).
NOW THEREFORE, in consideration of the sum of Ten Dollars ($10.00) and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto
intending to be legally bound hereby agree as follows:
1. Recitals. The above recitals are true and correct and by this reference are hereby incorporated
into the body of this Agreement as if fully set forth herein.
2. Grant of Easement. The Owner hereby grants to the City a perpetual, non-exclusive and
irrevocable easement in, upon, under and through the Easement Area for the purposes of:
(a) providing to the general public, and to the City and its invitees, agents, employees, contractors,
and licensees (including, without limitation, Owner and Owner's officers, employees, agents, contractors,
subcontractors, invitees, and licensees), an unrestricted way of passage, right of ingress and egress, access to,
and reasonable use of, the Easement Area, including, without limitation, for public recreational purposes, and
pedestrian and vehicular access over and across the Easement Area;
(b) constructing, installing, operating, using, maintaining, repairing and replacing landscaping,
sidewalks, pedestrian or bicycle paths, walkways, decks, street lighting, traffic or directional signage,
underground utilities, drainage, roadways, parks, and streetscape-related infrastructure, or any other
PAGE 2
improvements which City, in its reasonable discretion, deems necessary for the protection of the health, safety
or welfare of the general public (collectively, the "Improvements") within the Easement Area;
(c) authorizing the City to grant third parties providing utility services (the "City Grantees") the right
to use and occupy the Easement Area for the sole purpose of providing any such utilities, without any need for
Owner approval of any City Grantee; and
(d) taking all other actions as may be reasonably necessary, without any need for Owner approval
thereof, to develop and install Improvements within the Easement Area, or to operate the Easement Area, solely
for public purposes, in the same manner as otherwise applicable to any public right of way areas of the City
pursuant to the Code of Ordinances of the City of Miami Beach, Florida, as the same may be amended from
time to time (the "City Code"), including, without limitation, the issuance by the City oftemporary special event
permits for cultural, recreational or other programming, sidewalk cafe permits, or any other actions as may be
lawfully undertaken by the City on public right of way areas of the City (collectively, the "Easement
Purposes"). The term "utilities" shall include, but not be limited to, water, sewer, stormwater, electrical, gas,
telecommunications, telephone and cable.
3. Maintenance, Casualty, and Condemnation. From and after Owner's "Substantial
Completion" of the "Park/Streetscape Improvements," as such terms are defined under that certain
Development Agreement between the City and dated , 2019 (the "Ocean
Terrace Development Agreement"), City shall be responsible, at City's sole cost and expense, for maintaining
the Easement Area and the Park/Streetscape Improvements, including all landscaping and vegetation therein, in
accordance with those standards and criteria contained in the final approved plans and specifications for the
Park/Streetscape Improvements. In the event that any portion of the Easement Area and/or the Park/Streetscape
Improvements is damaged or destroyed by fire, flood, storm, or other casualty or by the act or omission of the
City, any of the City's agents, employees, contractors, vendors, operators, representatives, licensees, or any
other party retained by the City or for whom the City is. legally responsible, or by the general public, City
shall be solely responsible for any repair or restoration of the Easement Area, subject to an appropriation of funds
by the City Commission, if any is required, in the same manner as applicable to other public right of way areas
of the City. In addition, if any portion of the Easement Area is taken or condemned in any manner as a result of
the exercise of the power of eminent domain by any governmental authority for any public or quasi -public use,
including, without limitation, a conveyance or assignment in lieu of condemnation or taking, then this Agreement
shall immediately terminate as to any portion of the Easement Area so taken, and the parties hereto shall be
released automatically from all further obligations under this Agreement with respect to area taken, except for
those obligations that expressly survive the termination of this Agreement. The Owner, its successors and
assigns, will be entitled to receive the entire amount of any award made for any partial or complete taking
of the Easement Area.
Construction in Easement Area.
A. If the City elects to construct and/or install any Improvements within the Easement
Area, the City hereby acknowledges and agrees that: (a) all fees, costs and expenses associated with the
Improvements (including, without limitation, the design, permitting, construction, installation, operation, use,
maintenance, repair and replacement thereof) shall be paid in full by the City; (b) the design and construction
of all Improvements shall be performed and completed by the City (i) in a good and workmanlike manner,
(ii) free from liens and defects, and (iii) in full compliance with all laws, rules, regulations, ordinances,
codes and other requirements of governmental and quasi -governmental authorities having jurisdiction; and
(c) upon final completion of the Improvements, the City shall (i) remove all debris, equipment and materials
from the Easement Area, (ii) fill, compact, grade and otherwise restore the Easement Area to substantially
the same condition as existed prior to commencement of the Improvements, including harmonizing the soil
levels within the Easement Area and the lands adjacent thereto, and (iii) keep and maintain the
PAGE
Improvements (and all parts and components thereof) in good condition, repair and working order at all
times.
B. Following the Owner's Substantial Completion and delivery to the City of the
Park/Streetscape Improvements, if the Owner elects to construct and/or install any infrastructure or other
improvements within or above the Easement Area for Owner's use (the "Owner Improvements"), the
Owner hereby acknowledges and agrees that any such Owner Improvements shall be subject to and contingent
upon the prior approval of the City Commission, and further agrees that: (a) all fees, costs and expenses
associated with the Owner Improvements (including, without limitation, the design, permitting,
construction, installation, operation, use, maintenance, repair and replacement thereof) shall be paid in full by
the Owner; (b) the design and construction of all Owner Improvements shall be performed and completed
by the Owner (i) in a good and workmanlike manner, (ii) free from liens and defects, and (iii) in full
compliance with all laws, rules, regulations, ordinances, codes and other requirements of governmental and
quasi -governmental authorities having jurisdiction; and (c) upon final completion of the Owner
Improvements, the Owner shall (i) remove all debris, equipment and materials from the Easement Area, (ii)
fill, compact, grade and otherwise restore the Easement Area to substantially the same condition as existed
prior to commencement of the Owner Improvements, including harmonizing the soil levels within the
Easement Area and the lands adjacent thereto, and (iii) keep and maintain the Owner Improvements (and
all parts and components thereof) in good condition, repair and working order at all times.
5. Miscellaneous.
5.1 This Agreement shall be governed by, enforced and construed under the laws of
the State of Florida. Venue for all actions, litigation and/or other proceedings arising out of this Agreement
shall be exclusively in Miami -Dade County, Florida. BY ENTERING INTO THIS AGREEMENT,
OWNER AND CITY EXPRESSLY WAIVE ANY RIGHTS EITHER PARTY MAY HAVE TO A TRIAL
BY JURY OF ANY CIVIL LITIGATION RELATED TO, OR ARISING OUT OF, THIS AGREEMENT.
The prevailing party in any action, litigation or other proceeding that is based on any claim, controversy or
other disputed matter arising under, out of or in connection with this Agreement shall recover from the non -
prevailing party all fees, costs and expenses (including, without limitation, reasonable attorneys' fees and
costs through all trial, appellate and post judgment levels and proceedings) incurred by the prevailing party
in such action, litigation or other proceeding. As used herein, the term "Prevailing Party" means the party
who receives substantially the relief sought upon final, non -appealable judgment, order, or other disposition
of a court of competent jurisdiction. The provisions of this Section shall survive the termination or
expiration of this Agreement.
5.2 The parties hereby acknowledge and agree that each has had an opportunity to be
represented by or consult with independent legal counsel and that any rule of construction which provides
that ambiguities are to be construed against the drafter shall not apply in the interpretation or construction
of this Agreement. If any term, provision or portion of this Agreement is for any reason held to be invalid,
illegal or unenforceable by a court of competent jurisdiction, then such term, provision or portion of this
Agreement shall be given it nearest valid, legal and enforceable meaning, or construed as deleted, whichever
such court may determine, and the same shall not invalidate the remaining terms, provisions and/or portions
of this Agreement, which remaining terms, provisions and portions of this Agreement will remain in full
force and effect.
5.3 This Agreement includes all exhibits attached hereto. This Agreement, together
with all such exhibits, contains the entire agreement and understanding between the parties relatipg to the
subject matter of this Agreement, and all prior or contemporaneous terms, covenants, conditions,
representations, warranties, statements, agreements and understandings made by or on behalf of the pies,
whether oral or written, are merged herein.
PAGE
5.4 This Agreement may not be amended, modified or terminated except by a written
instrument executed by the Owner and the City through its City Manager, or his designee, or the successor
administrative officer with jurisdiction over the matter, and which is recorded in the Public Records of
Miami -Dade County, Florida. All provisions of this Agreement, including the benefits and burdens of the
same, are covenants that run with the land, are not intended to be executory in nature, and shall be binding
upon, and shall inure to the benefit of, the parties and their respective heirs, legal representatives, successors
and assigns.
5.5 The failure of any party to insist in any one or more instances upon strict
performance of any term, covenant, condition or other provision of this Agreement will not be construed as
a waiver or relinquishment of the future enforcement of such term, covenant, condition or other provision
of this Agreement.
5.6 Wherever appropriate in this Agreement, the singular shall be deemed to refer to
the plural and the plural to the singular, and pronouns of each gender shall be deemed to comprehend either
or both of the other genders. The section and paragraph headings in this Agreement are for convenience
only and shall not affect the meaning, interpretation or scope of the terms or provisions set forth therein.
5.7 This Agreement may be executed in multiple counterparts, each of which
individually shall be deemed an original, but when taken together shall be deemed to be one and the same
Agreement.
5.8 This Agreement shall never be construed as a conveyance in any manner
whatsoever of fee simple title to any portion of the Property or the Easement Area; it being intended by the
parties that this Agreement conveys only an easement interest with respect to the Easement Area for the
specific uses and purposes set forth herein.
5.9 All of the rights, easements and interests herein created and granted are and shall
be limited to and utilized solely for the uses and purposes expressly set forth herein. Except for Owner's
use of the Easement Area in the same manner as made available to the general public pursuant to the
purposes authorized pursuant to Section 2(a) herein or to effectuate the terms and conditions of the
Development Agreement, Owner shall not otherwise use the Easement Area for any other purpose, or make
any Owner Improvements to the Easement Area, without the City's consent, which consent may be withheld
by the City Manager, if the City Manager determines, at his or her reasonable discretion, that such proposed
uses or Owner Improvements would interfere in any material respect with the exercise by the public or by
the City of the rights granted to the public and the City herein.
5.10 Owner shall not withhold or obstruct City's access to the Easement Area for any
of the purposes authorized in Section 2 of this Agreement.
5.11 This Agreement and the rights, easements and interests herein created and granted
shall only become effective upon the recordation of this Agreement in the Public Records of Miami -Dade
County. This Agreement and the rights, easements and interests herein created and granted shall run with the
land, and shall be binding on all persons holding title to said lands.
5.12 Nothing in this Agreement shall be construed to create a joint venture, partnership,
tenancy in common, or joint tenancy relationship between the Owner and the City, nor shall this Agreement
render either party liable for the debts or obligations of the other party.
PAGE 5
6. Notice. All notices, demands, requests or other communications which may be or are
required to be given, served, or sent by either the Owner or the City pursuant to this Agreement shall be in
writing and addressed as follows:
If to Owner:
With a copy to:
If to the City: City of Miami Beach
Attn: City Manager
1700 Convention Center Drive, 4th Floor
Miami Beach, Florida 33139
With copies to: City of Miami Beach
Attn: Public Works Director
1700 Convention Center Drive, 4th Floor
Miami Beach, Florida 33139
Each party may designate by notice in writing a new address to which any notice, demand, request or
communication may thereafter be so given, served or sent. Any notice or other communication (i) sent by
certified United States mail, postage prepaid, return receipt requested will be deemed effectively given or
received on the third (3rd) business day following the postmark date of such notice or other communication;
(ii) sent by overnight courier or by hand will be deemed effectively given or received upon receipt or refusal,
as the case may be; and (iii) sent by electronic mail will be deemed effectively given or received on the day
of transmission of such notice if sent on a business day before 6:00 P.M. Eastern Standard Time, or on the
following business day if sent after 6:00 P.M. Eastern Standard Time or on a non -business day. Any notice
or other communication given in the manner provided above by counsel for either party will be deemed to
be notice or such other communication from the party represented by such counsel.
7. City Indemniiy. Solely to the extent and limits permitted by Section 768.28 of the Florida
Statutes, and without waiving any rights or defenses therein, the City shall indemnify, defend and hold the
Owner harmless from and against all claims, demands, causes of action, suits, losses, damages, liabilities,
liens, judgments, fees, costs, expenses and other charges (including, without limitation, reasonable
attorneys' fees and costs through all trial, appellate and post judgment levels and proceedings) (collectively,
the "Claims") commenced, incurred and/or paid by or against the Owner to the extent the Claims arise
from: (a) the willful misconduct or negligent use of the Easement Area by the City or any successor, assign
and/or City Grantee thereof expressly approved by the City Commission; (b) the design, construction,
installation, operation, use, maintenance, repair and/or replacement of, or the failure to properly design,
construct, install, operate, use, maintain, repair and/or replace, any Improvements by the City or any successor,
assign and/or City Grantee thereof expressly approved by the City Commission; and (c) any default, breach
or violation of any term, covenant, condition or provision of this Agreement by the City or any successor,
assign and/or City Grantee thereof expressly approved by the City Commission, ine)g;'`+�tthout
limitation, any failure by the City to maintain, repair, and restore the Easement Area andape
Improvements in accordance with Section 3 of this Agreement. Notwithstanding anyt tytiQ^ co 1i
PAGE 6
contained in this Agreement: (y) nothing in this Agreement shall impair, limit or prohibit any rights or
remedies the Owner has against any person or entity using or occupying the Easement Area under, through
or as an assignee of the City or a City Grantee; and (z) the obligation of the City to indemnify, defend and
hold the Owner harmless as set forth herein shall not apply to the extent any such Claims arise from the
gross negligence or willful misconduct of the Owner or any successor, assign and/or grantee thereof.
Nothing herein shall be construed to increase or otherwise waive any limits of liability or immunity afforded
to the City under the laws of the State of Florida, including, without limitation, the limitations of liability
and immunities set forth in Section 768.28 of the Florida Statutes.
8. Insurance. The City agrees to maintain a self-insurance fund, in compliance with Sections
768.28(16)(a) and 440.09, Florida Statutes, in the same manner as provided by the City with respect to
other public right of ways of the City, to cover liability, workmen's compensation, and other claims that
may arise against the City with respect to this Agreement or the use of the Easement Area. Owner shall
maintain insurance sufficient to cover Owner's liability exposure with respect to the Easement Area, which
insurance shall include Commercial General Liability Insurance, including Products -Completed
Operations and Contractual Liability, in an amount not less than $1,000,000 combined single limit per
occurrence, and $2,000,000 in the aggregate, for bodily injury and property damage, and Workmen's
Compensation as required by law. Owner shall name the City as an additional named insured on the
Certificates of Insurance for Commercial General Liability Insurance, and upon request of the City,
shall provide City with a certificate of insurance evidencing the foregoing coverages.
9. Owner Indemnity. The Owner shall indemnify, defend and hold the City harmless from
and against all Claims commenced, incurred and/or paid by or against the City to the extent the Claims
arise from the design, construction, installation, operation, use, maintenance, repair and/or replacement of,
or the failure to properly design, construct, install, operate, use, maintain, repair and/or replace, any Owner
Improvements by the Owner. Notwithstanding anything to the contrary contained in this Agreement, the
obligation of the Owner to indemnify, defend and hold the City harmless as set forth herein shall not apply
to the extent any such Claims arise from the gross negligence or willful misconduct of the City, any
successor or assign of the City, any City Grantee, and/or the general public.
10. Liability Limitation. The Owner, pursuant to and in accordance with the terms and
conditions of this Agreement, makes the Easement Area available to the public free of charge for
outdoor recreational purposes. Accordingly, to the maximum extent permitted by law, Owner may
avail itself of the limitations of liability afforded pursuant to Section 375.251, Florida Statutes, to the
fullest extent applicable to the Easement Area.
11. Ad Valorem Taxes and Assessments. The parties acknowledge that the Easement Area
historically has been used and controlled by the City as a public right-of-way and, therefore, has been
exempt from ad valorem taxation and assessments. As this Agreement is intended to ensure the
continued use of the Easement Area solely for public purposes, the City covenants to cooperate with
any efforts by the Owner to exempt the Easement Area fi-om ad valorem taxation, by providing
documentation to Owner, as may be reasonably necessary, to evidence the public uses of the Easement
Area. Notwithstanding the foregoing, Owner shall be solely responsible for the payment of any ad
valorem taxes or assessments, if any, with respect to the Easement Area.
12. Mortgages and Encumbrances. This Agreement is made subject to, and with the benefit
of, all matters of record. To the extent the Easement Area is presently encumbered by a mortgage,
Owner agrees to request that its mortgagee join in and consent to this Agreement and subordinate its
mortgage lien to the easements granted herein. In addition, the Owner hereby reserves the right, for
itself and its successors and assigns, to encumber all or any portion of the Easement Area, at any time
PAGE 7
and from time to time, with one or more mortgages, deeds of trust, or other financing instruments. Any
mortgage hereafter encumbering or otherwise affecting any portion of the Easement Area shall at all
times be subject and subordinate to the terms of this Agreement (and any modifications thereto, from
time to time), and any party foreclosing any such mortgage, or acquiring title by deed in lieu of
foreclosure, shall acquire title subject to all of the terms and provisions of this Agreement (and any
modifications thereto, from time to time). No breach of the provisions of this Agreement shall defeat
or render invalid the lien of any mortgage made in good faith for value covering any part of the
Easement Area and any improvements thereon.
13. Assignment. Prior to Substantial Completion of the Park/Streetscape Improvements in
accordance with the Ocean Terrace Development Agreement, the Owner shall only be permitted to assign or
transfer its rights and/or delegate the performance of its obligations under this.Agreement to a "Permitted
Transferee," as defined in the Ocean Terrace Development Agreement. Following Substantial Completion
of the Park/Streetscape Improvements, the Owner may assign or transfer its rights and/or delegate the
performance of its obligations under this Agreement to any person or entity in accordance with the Ocean
Terrace Development Agreement, so long as such person or entity is a subsequent owner or mortgage lender
of the adjacent development parcels subject to the Covenant in Lieu of Unity of Title as contemplated in
the Ocean Terrace Development Agreement, or is an organization or association of unit owners and/or
parcel owners designated with the responsibility of maintenance of common areas in connection with
the development or operation of such adjacent development parcels. Owner's successors and/or assigns
shall not include individual unit owners, unless such individual unit owners are an organization or
association of unit owners and/or parcel owners or a successor -in -interest to the Ocean Terrace
Development Agreement as described above. The City may, in its sole discretion, transfer or assign this
Agreement at any time only to a successor municipal corporation, provided, however, that nothing herein
shall be deemed a limitation on City's or any successor municipal corporation's right to permit its invitees,
agents, employees, licensees and the public to use the Easement Area in accordance with this Agreement.
All other transfers, assignments, and delegations are prohibited (and, if attempted, void) absent the other
party's prior written consent, which consent such other party may condition or withhold in its sole
discretion. A party completing any permitted transfer, assignment, or delegation will promptly provide the
other party with a written instrument evidencing the completion of such transaction. Upon any transfer,
assignment, or delegation completed in accordance with this Section, the rights and obligations of the party
completing such transfer, assignment, or delegation will be binding only on such party's transferee,
assignee, or delegatee, as the case may be, and the other party will look only to such transferee, assignee,
or delegatee for performance under this Agreement. In the case of a transfer, assignment, or delegation to
an organization of unit owners and/or parcel owners, the obligations of the Owner pertaining to such
portion transferred, assigned, or delegated shall be binding only upon the organization of unit/parcel
owners, and not upon the declarant or any particular unit/parcel owner, except to the extent otherwise
specifically provided in the declaration governing such organization.
14. Enforcement. The rights, privileges, and remedies granted by this Agreement are
enforceable exclusively by the City and the Owner. Nothing in this Agreement, whether express or implied,
confers upon the general public any enforcement rights against the Owner. Notwithstanding anything to the
contrary, neither party will be in breach of this Agreement, and no enforcement may be sought against a
party through any means, unless such party (i) receives a written notice from the other party, detailing with
specificity the ways in which such party is in breach of this Agreement, and (ii) fails to remedy such breach
within fifteen (15) days from the date of such written notice, or, if the breach is susceptible to cure but
cannot reasonably be cured within fifteen (15) days, then within forty-five (45) days from the date of such
written notice, provided the breaching party promptly commences and diligently pursues the curing of such
breach within the initial fifteen (15) day period.
PAGE 8
15. Remedies. The parties may enforce the terms of this Agreement by injunctive relief,
mandamus, and by any other remedies available at law or in equity, except for rescission, revocation or
termination of this Agreement, or any other remedy which would deprive the public with the right to use
the Easement Area in accordance with this Agreement. All rights, remedies, and privileges granted to any
party under this Agreement are cumulative, and the exercise of any one or more such rights, remedies, or
privileges will not preclude the exercising party from exercising any other rights, remedies, or privileges
available to such party under this Agreement or at law or in equity.
16. Estoppel. The City will, no later than fifteen (15) business days after a written request
therefor by the Owner, by any of the Owner's mortgagees or lenders, or by anyone claiming by or
through the Owner (including, without limitation, the Owner's successors, assigns, and transferees),
and upon payment of the reasonable fees to cover the City's expenses for any third -party resources
required to comply, issue a written estoppel certificate, in recordable form, to the requesting party,
certifying as to any matter related to this Agreement that the requesting party may reasonably request
of the City, including, without limitation, (i) that this Agreement, or any particular paragraph or section
of this Agreement specified by the requesting party, is in full force and effect and unmodified (or in
what respects this Agreement is no longer in force or effect or has been modified); (ii) that all monies
due and payable under this Agreement, if any, have been paid (or in what respects monies are owed);
and (iii) that to the City's knowledge, the Owner is in compliance with this Agreement or with any
particular paragraph or section hereof specified by the requesting party (or in what respects there is
noncompliance). Such estoppel certificates will be binding on the City and its successors and assigns,
and may be relied upon by the Owner, its mortgagees and lenders, and by all others claiming by or
through the Owner. Notwithstanding the foregoing section or any representations in any estoppel
certificates issued thereunder, City shall not be estopped as to matters to which it did not have
knowledge.
[EXECUTION PAGES TO FOLLOW]
EXHIBIT "L"
IN WITNESS WHEREOF, the Owner has caused these presents to be signed, sealed executed and
acknowledged on day of , 20_, in its name by its proper officials.
Print Name:
Print Name:
STATE OF FLORIDA )
) SS:
COUNTY OF MIAMI-DADE )
City of Miami Beach, Florida
In
Jimmy L. Morales, City Manager
The foregoing instrument was acknowledged before me this
as of
day of , 201_ by
behalf of the company. He is personally known to me or has
as identification and who did/did not take an oath.
on
produced
NOTARY PUBLIC
Typed or printed Name of Notary
My Commission expires:
Serial No., if any
EXHIBIT "L"
IN WITNESS WHEREOF, the Owner has caused these presents to be signed, sealed executed and
acknowledged on day of , 20_, in its name by its proper officials.
Print Name:
Print Name:
STATE OF FLORIDA
) SS:
COUNTY OF MIAMI-DADE )
By:
Name:
Title:
The foregoing instrument was acknowledged before me this
as of
behalf of the company
day of , 201_ by
He is personally known to me or has
as identification and who did/did not take an oath.
,on
produced
NOTARY PUBLIC
Typed or printed Name of Notary
My Commission expires:
Serial No., if any
EXHIBIT "L"
Exhibit A
Legal Description of Property
PAGE 12
Exhibit B
Legal Description of Easement Area
EXHIBIT "M"
FORM OF PERFORMANCE BOND
By this Bond, We
as Principal, whose principal
business address is ,
as the [Contractor] under the agreement dated 120 between Principal and
the [Developer Entity] (hereinafter referred to as "Developer") for the construction of the Ocean
Terrace Park/Streetscape Project on behalf of the City of Miami Beach, Florida ("City") (which
agreement and the other Contract Documents referenced therein are hereinafter referred to as
"Contract"), the terms of which Contract are incorporated by reference in its entirety into this Bond,
and a corporation, whose principal business address is
as Surety, are bound to Developer, as co -obligee,
and City, as co -obligee, in the sum of U.S. dollars
($ ), for payment of which we bind ourselves, our heirs, personal
representatives, successors, and assigns, jointly and severally.
THE CONDITION OF THIS BOND is that if Principal:
1. Performs all the work under the Contract, including but not limited to guarantees,
warranties and the curing of latent defects, said Contract being made a part of this Bond
by reference, and at the times and in the manner prescribed in the Contract; and
2. Pays Developer and City all losses, damages, expenses, costs and attorney's fees,
including appellate proceedings, that Developer and City sustains as a result of default by
Principal under the Contract, including but not limited to a failure to honor all guarantees
and warranties or to cure latent defects in the work or materials within the time period
provided in Section 95.11(2)(b), Florida Statutes; and
3. Performs the guarantee of all work and materials furnished under the Contract for the time
specified in the Contract, including all warranties and curing all latent defects within the
time period provided in Section 95.11(2)(b), Florida Statutes;
then this bond is void; otherwise it remains in full force.
Surety specifically assumes liability for any and all damages, including but not limited to liquidated
damages set forth in the Contract, arising from Principal's default of the Contract, as well as all
latent defects uncovered in the work of the Principal after final acceptance of the work by the City.
If no specific periods of warranty are stated in the Contract for any particular item or work, material
or equipment, the warranty shall be deemed to be a period of one (1) year from the date of final
acceptance by the City; provided, however, that this limitation does not apply to suits seeking
damages for latent defects in materials or workmanship, such actions being subject to the
limitations found in Section 95.11(2)(b), Florida Statutes.
49127872-,13
Whenever the Principal shall be, and is declared by Developer to be, in default under the Contract,
Developer having performed Developer's obligations thereunder, the Surety may promptly
remedy the default, or shall promptly:
(1) Complete the Contract in accordance with its terms and conditions; or
(2) Obtain a bid or bids for completing the Contract in accordance with its terms and conditions,
and upon determination by Surety of the lowest responsible bidder, or, if Developer elects, upon
determination by City, Developer and Surety jointly of the lowest responsible bidder, arrange for
a contract between such bidder and Developer, and make available as work progresses (even
though there should be a default or a succession of defaults under the Contract or Contracts of
completion arranged under this paragraph) sufficient funds to pay the cost of completion less the
balance of the Contract Price; but not exceeding, including other costs and damages for which
the Surety may be liable hereunder, the amount set forth in the first paragraph hereof. The term
"balance of the Contract Price" as used in this paragraph, shall mean the total amount payable
by Developer to Principal under the Contract and any amendments thereto, less the amount
properly paid by Developer to Principal.
The Surety hereby waives notice of and agrees that any changes in or under the Contract and
compliance or noncompliance with any formalities connected with the Contract or the changes
does not affect Surety's obligation under this Bond.
No right of action shall accrue on this bond to or for the use of any person or corporation other
than the Developer and City named herein. Any action under this Bond must be instituted in
accordance with the notice and time limitations provisions prescribed in Section 255.05(2), Florida
Statutes.
Signed and sealed this day of , 20
WITNESSES:
Secretary
(CORPORATE SEAL)
49127872;13
(Name of Corporation)
0
(Signature)
(Print Name and Title)
Countersigned by Resident
Florida Agent of Surety
[attach copy of Agent's ID card
Issued by Fla. Ins. Commissioner]
[Atty in fact power of atty must be attached]
49127872,13
INSURANCE COMPANY:
By:
Attorney -in -Fact
Address:
(Street)
(City/State/Zip Code)
Telephone No.:
FORM OF PAYMENT BOND
By this Bond, We
as Principal, whose principal
business address is , and whose telephone
number is , as the [Contractor] under the agreement dated ,
20—, between Principal and the [Developer entity] (hereinafter referred to as "Developer") for
the construction of the Ocean Terrace Park/Streetscape Project on behalf of the City of Miami
Beach, Florida ("City") (which agreement and the other Contract Documents referenced therein
are hereinafter referred to as "Contract"), the terms of which Contract are incorporated by
reference in its entirety into this Bond, and a corporation, whose
principal business address is as Surety, are bound
to Developer, as co -obligee, and City, as co -obligee, in the sum of
U.S. dollars ($ ), for payment of which we bind ourselves, our heirs, personal
representatives, successors, and assigns, jointly and severally.
THE CONDITION OF THIS BOND is that if the Principal:
Promptly makes payments to all claimants, as defined by Florida Statute 255.05(1),
providing Principal with labor, materials, or supplies, used directly or indirectly by Principal
in the prosecution of the work provided for in the Contract, and in the times and in the
manner prescribed in the Contract; and
2. Pays Developer and City all losses, damages, expenses, costs and attorney's fees
including appellate proceedings, that Developer and City sustain because of a failure by
Principal to make any payments required under the Contract;
then this bond is void; otherwise it remains in full force.
A claimant shall have a right of action against the Principal and the Surety for the amount due it.
Such action shall not involve the Developer or City in any expense.
A claimant, except a laborer, who is not in privity with Principal and who has not received payment
for its labor, materials, or supplies shall, within forty-five (45) days after beginning to furnish labor,
materials, or supplies for the prosecution of the work, furnish to Principal a notice that he intends
to look to the bond for protection. A claimant who is not in privity with Principal and who has not
received payment for its labor, materials, or supplies shall, within ninety (90) days after
performance of the labor or after complete delivery of the materials or supplies, deliver to Principal
and to the Surety, written notice of the performance of the labor or delivery of the materials or
supplies and of the nonpayment.
No action for the labor, materials, or supplies may be instituted against Principal orythe-, urety
unless both of the above -referenced notices have been given. Any action under this o d'r ust
-- j
49127872;13
be instituted in accordance with the notice and time limitations prescribed in Section 255.05(2),
Florida Statutes.
The Surety hereby waives notice of and agrees that any changes in or under the Contract
Documents and compliance or noncompliance with any formalities connected with the Contract
or the changes does not affect the Surety's obligation under this Bond.
Signature page to follow
49127872;13
Signed and sealed this day of 20
ATTEST:
(Secretary)
(Corporate Seal)
Principal
(Name of Corporation)
By:
(Signature)
(Print Name and Title)
day of , 20
Countersigned by Resident INSURANCE COMPANY:
Florida Agent of Surety
By
49127872;13
[attach copy of Agent's ID card
Issued by Fla. Ins. Commissioner]
Attorney -in -Fact
Address:
(Street)
(City/State/Zip Code)
[Atty in fact power of atty must be attached] Telephone No.:
49127872;13
Exhibit "N"
INSURANCE AND BONDING REQUIREMENTS
FOR PARK/STREETSCAPE IMPROVEMENTS
I. BONDING REQUIREMENTS
1. Developer shall submit all supporting documentation and detailed invoices with
respect to insurance and bond premiums required for the Park/Streetscape Improvements. City's
reimbursement of insurance and bond premiums shall be for the portion of insurance and bond
premiums directly attributable to this Agreement. Premiums shall be net of trade discounts,
volume discounts, dividends and other adjustments.
2. The Performance Bond and the Payment Bond must each be executed by a surety
company in good standing with the Florida Office of Insurance Regulation and an adequate rating
from A.M. Best indicated in this Exhibit, which surety is authorized to do business in the State
of Florida as a surety, having a resident agent in the State of Florida and having been in
business with a record of successful, continuous operation for at least five (5) years.
3. The surety company that is bound by the Performance Bond and Payment Bond,
respectively, shall be responsible for Contractor's acceptable performance of the work under
Construction Contract for the Park/Streetscape Improvements, and/or for the payment of all debts
pertaining thereto in accordance with Section 255.05, Florida Statutes.
4. The surety company that is bound by the Developer's Surety Bond (if any is
provided pursuant to Section 5 of the Agreement), shall be responsible for Developer's acceptable
performance of the work under Construction Contract for the Park/Streetscape Improvements,
and/or for the payment of all debts pertaining thereto in accordance with Section 255.05, Florida
Statutes.
5. The surety company shall hold a current Certificate of Authority as a n
acceptable surety on federal bonds in accordance with United States Department of Treasury
Circular 570, Current Revisions. If the amount of the Performance Bond and Payment Bond
exceeds the underwriting limitation set forth in the Circular, in order to qualify, the net retention of
the surety company shall not exceed the underwriting limitation in the circular, and the excess
risks must be protected by coinsurance, reinsurance, or other acceptable methods in accordance
with Treasury Circular 297, revised September 1, 1978 (31 CFR Section 223.10, Section
223.11.) Further, the surety company shall provide City with evidence satisfactory to City, that
such excess risk has been protected in an acceptable manner.
6. The City will accept a surety bond from a company in accordance with the
requirements set forth below; provided however, that if any surety company appears on the watch
list that is published quarterly by Intercom of the Office of the Florida Insurance Commissioner,
the City shall review and either accept or reject the surety company based on the financial
information available to the City. The following sets forth, in general, the acceptable parameters
for bonds:
49127872;13
Policy- Financial Holder's Size
Amount of Bond
Ratings
Category
$500,001 to $1,000,000
A-
Class 1
$1,000,001 to $2,000,000
A-
Class II
$2,000,001 to $5,000,000
A
Class III
$5,000,000 to $10,000,000
A
Class IV
$10,000,001 to $25,000,000
A
Class V
$25,000,001 to $50,000,000
A
Class VI
$50,000,001 or more
A
Class VI
II. INSURANCE REQUIREMENTS
Developer, Contractor and Architect shall provide, pay for and maintain in force at all times (unless
otherwise provided) and any extensions thereof, the following insurance policies:
A. worker's Compensation Insurance for all employees as required by Florida
Statute 440, and Employer Liability Insurance with a limit in an amount not less
than $1,000,000 per accident for bodily injury or disease.
B. Commercial General Liability Insurance on an occurrence basis, including
products and completed operations, property damage, bodily injury and personal
& advertising injury with limits in an amount not less than $2,000,000 per
occurrence.
C. As to Developer and Contractor only: Umbrella Liability Insurance with limits
in an amount not less than $5,000,000 per occurrence. The umbrella coverage
must be as broad as the primary General Liability coverage.
The total limits for the Commercial General Liability and Umbrella Liability
Insurance (set forth in Sections II.B and II.0 above) shall be in an amount not less
than $7,000,000, and may be provided through a combination of primary and
excess/umbrella liability policies.
D. Automobile Liability Insurance covering any automobile, if vendor has no owned
automobiles, then coverage for hired and non -owned automobiles, with limits in an
amount not less than $1,000,000 combined per accident for bodily injury and
property damage.
E. As to Developer and Architect only: Project -Specific Design Professional
Liability (Errors & Omissions) Insurance with limits in an amount not,�f`e
$2,000,000 per occurrence or claim, and $5,000,000 policy aggregate/s`dbje�fjo
a maximum deductible acceptable to the City, and not -to -exceed $10'0,00.9. i J
49127872,13
Developer and Architect shall maintain the claims made form coverage with a
minimum of 10 years extended reporting following Final Completion and shall
annually provide City with evidence of renewal coverage. Developer and Architect
are responsible for all deductibles in the event of a claim. Developer and Architect
shall indicate the deductible for this coverage on its Certificate of Insurance.
Developer and Architect shall notify City in writing within thirty (30) days of any
claims filed or made against the Design Project -Specific Professional Liability
Insurance Policy(ies). Consultant and Design Subconsultants shall each maintain
commercially reasonable Errors & Omissions Liability coverages, as reasonably
determined by Developer.
F. As to Contractor: Contractors' Pollution Legal Liability with limits in an amount
not less than $1,000,000 per occurrence or claim, and $2,000,000 policy
aggregate, subject to a maximum deductible acceptable to the City.
G. As to Contractor only: Installation Floater Insurance including coverage for
material & equipment to be installed during the course of this Project. City shall be
included as a Named Insured on this policy, as its insurable interest may appear.
This policy shall remain in force until acceptance of the Project by the City.
III. ADDITIONAL TERMS AND CONDITIONS:
1. Notice to City. If the initial insurance expires prior to the completion of the work,
certificates of insurance evidencing the renewal of the coverage required shall be furnished to the
City ten (10) days prior to the date of their expiration. The insurance policy(ies) must be
endorsed to require the relevant insured to provide the City with at least thirty (30) days'
notice of cancellation and/or restriction, except for non-payment of premium, which shall be
subject to ten (10) days' notice.
2. Certificates of Insurance. Developer shall furnish to the City Certificates of Insurance
or endorsements evidencing the insurance coverage required of Developer hereunder prior to
entering upon the Park/Streetscape Improvements Site, and shall also furnish to the City a copy
of each insurance policy required of Developer by this Agreement. Developer shall provide the
City with Certificates of Insurance from its Contractor and Architect prior to the commencement
of any work or services by any such entity. The Certificates of Insurance shall be in form
acceptable to, and subject to, reasonable approval by City. Developer's failure to timely provide
the Certificates of Insurance as required by this paragraph, and failure to cure within fifteen (15)
days following receipt of written notice of such failure from the City, shall be the basis for the
rescission of this Agreement by the City, without any liability to Developer. The official title of the
certificate holder is City of Miami Beach, Florida. This official title shall be used in all insurance
documentation.
3. Right to revise or reject. City's Risk Management Division reserves the right, but not the
obligation, to review and revise any insurance requirements at the time of insurance contract
renewal and/or any amendments, not limited to deductibles, limits, coverages and endorsements
based on insurance market conditions affecting the availability or affordability of coverage; or
changes in the scope of work/specifications affecting the scope and applicability of coverage.
4. Additional Insured. City shall be expressly included as an Additional Insured_.Qn all
policies (except Professional Liability and workers' Compensation), and with an endorsemen), , t
is acceptable to the City. Additional insured certificates for the City shall read "City of,.Vi''
t• �
49127872,13
Beach, Florida", 1700 Convention Center Drive, Miami Beach, FL, 33139, Attn: Risk
Management, 31 Floor.
5. Notice of Cancellation and/or Restriction. The policy(ies) must be endorsed to require
the relevant insured to provide City with at leastthirty (30) days' notice of cancellation or non -
renewal and/or restriction, except for non-payment of premium, which shall be subject to ten (10)
days' notice. A copy of the endorsement(s) shall be provided with the Certificates of Insurance.
6. Duty of Care. Developer's furnishing insurance coverage shall in no way relieve or limit,
or be construed to relieve or limit, Developer or any of its contractors of any responsibility, liability,
or obligation imposed under this Agreementor the applicable contract documents relating to the
Park/Streetscape Improvements, or by Applicable Laws, including, without limitation, any
indemnification obligations which Developer or any of its contractors have to City thereunder.
7. Developer's Failure to Procure. Developer's failure to procure or maintain the insurance
required by this Exhibit "N" during the entire term of the work shall constitute a material breach
and Default of this Agreement, as long as it is available based on prevalent market conditions.
In the event of such a breach (and following all notice and right to cure periods have expired), the
City may exercise all available rights and remedies hereunder, including the right to immediately
suspend or terminate this Agreement without any further notice to or liability to Developer or, at
its discretion, procure or renew such insurance to protect the City's interests and pay any and all
premiums in connection therewith, and withhold or recover all monies so paid by the City from the
Developer.
8. Waiver of Subrogation. Where permitted by law, Developer hereby waives and shall
cause the Contractor to waive all rights of recovery by subrogation or otherwise (including, without
limitation, claims related to deductible or self -insured retention clauses, inadequacy of limits of
any insurance policy, insolvency of any insurer, limitations or exclusions of coverage), against City,
and its respective officers, agents, or employees. Certificates of insurance shall evidence the
waiver of subrogation in favor of the City, and that coverage shall be primary and noncontributory,
and that each evidenced policy includes a Cross Liability or Severability of Interests provision,
with no requirement of premium payment by the City.
49127872,13
EXHIBIT "O"
PRESENTLY PERMITTED DEVELOPMENT
(a)Permitted Development and Uses. The Property, generally bounded by Ocean Terrace, 751h Street,
Collins Avenue, and 74t' Street, is designated Mixed Use Entertainment Category (MXE) on the eastern
portions and Medium Intensity Commercial Category (CD-2) on the western portion according to the City's
adopted Comprehensive Plan. The Property is zoned MXE Mixed Use Entertainment District on the
eastern portions and CD-2 Medium Intensity, Commercial District on the western portion by the City's
Land Development Regulations. The property is also located within the Ocean Terrace Overlay. The Ocean
Terrace Overlay regulations supersede the underlying regulations and permits apartments,
aparfinent/hotels, hotels, commercial, and uses that serve alcoholic beverages as regulated by the City
Code. The Property may be used forthe purposes permitted and regulated in these land use designations
and zoning districts, as further limited by the by the City's Land Development Regulations and
Comprehensive Plan.
(b)Density, Building Heights, Setbacks and Intensities. The maximum density, heights, setbacks and
intensities for any development on the Property shall be regulated by the City's Land Development
Regulations, Comprehensive Plan and any applicable Federal, State or County laws and regulations. In the
CD-2 land use designation, the maximum floor area ratio (FAR) is 2.0 for mixed -use buildings. In the MXE
land use designation, the maximum FAR is 2.0. In the MXE and CD-2 land use designation, the maximum
residential density is 100 dwelling units per acre. The intensity of hotel use is limited by such set back,
height, floor area ratio, minimum room size and other provisions of the Land Development Regulations.
EXHIBIT "P"
PUBLIC FACILITIES TO SERVE THE PROPERTY
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 those existing educational facilities
owned or operated by the Miami -Dade Public Schools District, if applicable. The proposed development
shall be serviced bythose existing parks and recreational facilities owned or operated by the United States
Government within Miami Dade County, by the State of Florida, by Miami -Dade County, and by the City
of Miami Beach. The proposed development shall be serviced by those existing health systems and
facilities operated by the United States Government within Miami -Dade County, by the State of Florida,
by Miami -Dade County, and by the City of Miami Beach.
The proposed development will also be serviced by any and all public facilities, as such are defined
in Section 163.3221(13) 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.
EXHIBIT "Q"
PUBLIC RESERVATIONS AND DEDICATIONS
All easements referenced in the Development Agreement
The Public Reservation Area depicted in Exhibit "B"
EXHIBIT "R"
REQUIRED DEVELOPMENT PERMITS AND VARIANCES
The following constitutes a generalized list of local permits anticipated as necessary to be
approved by the terms of this Development Agreement:
1. Historic Preservation Board, Planning Board, and/or Board of Adjustment approvals,
pursuant to Chapter 118 of the City of Miami Beach Code.
2. Utility Permits
3. Demolition Permits
4. Building Permits
5. Environmental Permits, including, without limitation, DERM or DEP permits
6. Hazardous Materials Removal Permit, if removal of hazardous materials is found
necessary.
7. Public Works Permit, Paving and Drainage
8. Public Works Permit, Water and Sewer
9. Public Works Revocable Permits
10. Certificates of Use and/or Occupancy
11. Any variances or waivers that may be required pursuant to Chapters 114 through 142 of
the City of Miami Beach Code
12. 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, including but not
limited to restrictive covenants in lieu of unity of title
EXHIBIT "S"
This instrument was prepared by:
Name: Raul J. Aguila, City Attorney.
Address: City of Miami Beach
1700 Convention Center Drive, 4'h Floor
Miami Beach, Florida 33139
CONSTRUCTION AND ACCESS EASEMENT AGREEMENT
THIS CONSTRUCTION AND ACCESS EASEMENT AGREEMENT
made this _ day of 20_, by the CITY OF MIAMI BEACH,
corporation, having its principal place of business at 1700 Convention Center
Florida 33139 (the "City"), to and in favor of
having its respective principal place of business at
"Developer").
WITNESSETH:
(this "Easement") is
a Florida municipal
Drive, Miami Beach,
a each
(collectively, the
WHEREAS, the City owns that certain property situated, lying and being in Miami -Dade
County, Florida, as more particularly described in Exhibit "A" attached hereto and made a part hereof
(the "Park/Streetscape Site");
WHEREAS, Developer owns that certain property situated, lying and being in 1l4iami-Dade
County, Florida, as more particularly described in Exhibit "B" attached hereto and made a part hereof
(the "Development Site"), and
WHEREAS, the City and the Developer entered into that certain Development Agreement dated
as of , 20_, a copy of which is recorded in Official Records Book , at Page
of the Public Records of Miami -Dade County (the "Development Agreement" D, which
constitutes a development agreement pursuant to the Florida Local Government Development Act,
Section 163.3220, et. seq., Florida Statutes (the "Act");
WHEREAS, pursuant to the Development Agreement, Developer will construct the `Project" (as
defined in the Development Agreement) on the "Development Site" (as defined in the Development
Agreement) and will construct the "Park/Streetscape Improvements" (as defined in the Development
Agreement) on the Park/Streetscape Site;
WHEREAS, the City has agreed to grant to the Developer a non-exclusive, irrevocable,
temporary easement over the Park/Streetscape Site for access and construction staging purposes during
Developer's construction of the Project and the Park/Streetscape Improvements;
WHEREAS, the granting of this Easement is a condition of the effectiveness of the Development
Agreement and the issuance of development permits and approvals in order for the Developer to • velop
the Project and the Park/Streetscape Improvements;r:;
4949578512 i ��
EXHIBIT "S"
NOW, THEREFORE, in consideration of the sum of Ten Dollars ($10.00) and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto
intending to be legally bound hereby agree as follows:
1. Recitals. The above recitals are true and correct and by this reference are hereby
incorporated into the body of this Easement as if fully set forth herein.
Grant of Easement.
(a) The City hereby grants to the Developer and its employees, agents,
representatives, architects, engineers, consultants, contractors, subcontractors (of every and any tier),
laborers, suppliers, and lenders, and each of their respective successors and assigns (collectively, the
"Developer Construction Permittees"), a non-exclusive, irrevocable, temporary easement on, over,
under, through, upon, and across the Park/Streetscape Site to perform all acts necessary or desirable to
ensure fulfillment and satisfaction of all duties, obligations, and requirements with respect to the
construction of the Project and the Park/Streetscape Improvements pursuant to and in accordance with the
Development Agreement. The easement granted herein includes, without limitation, the following: (i)
during construction of the Park/Streetscape Improvements, the right to stage, store, and operate
construction trailers, vehicles, tools, machinery, equipment, and materials related to the Park/Streetscape
Improvements on all or any portion of the Park/Streetscape Site; (ii) during construction of the Project, the
right to stage, store, and operate construction trailers, vehicles, tools, machinery, equipment, and materials
related to the Project on the "Phase 2" portion of the Park/Streetscape Site (as such phase is defined in the
Development Agreement); (iii) the right to erect fencing around and within the Park/Streetscape Site; (iv)
the right to use the Park/Streetscape Site for site logistics, including but not limited to, the Developer's
and the Developer Construction Permittees' ingress and egress to and from the Development Site over and
across the Park/Streetscape Site; and (v) the right to do all other things and perform all other activities that
are reasonably related to the construction of the Project and the Park/Streetscape Improvements pursuant
to and in accordance with the Development Agreement, or that may be necessary or appropriate to give
effect to any of the foregoing rights.
(b) This Easement and the rights granted herein will terminate upon the earlier of
(such earlier date is referred to herein as the "Termination Date"): (i) the date on which the City issues
a final certificate of occupancy for the entire Project (as opposed to any individual phase thereof); (ii) the
date that is ninety-six (96) months after the "Effective Date" of the Development Agreement, subject to
automatic extension and automatic tolling as provided in Sections 42(e) and 55 of the Development
Agreement; (iii) the date on which the City terminates the Development Agreement for an uncured
Developer "Event of Default" under the Development Agreement; or (iv) the date on which the
Developer terminates the Development Agreement for convenience in accordance with Section 45 of the
Development Agreement. Although such termination is intended to be automatic and require no further
action on the part of any party hereto, upon the request of a party after the occurrence of a termination
event, the other party will, no later than thirty (30) days after such request, execute a termination of this
Easement in recordable form and in substance reasonably acceptable to the City and the Developer.
3. Restoration. The Developer shall remove all vehicles, equipment and materials from the
Park/Streetscape Site on or prior to the Termination Date and, if the entire Park/Streetscape Improvements
has not been completed on or prior to the Termination Date, then the Developer shall, at the Developer's
cost and expense, sod such un-completed portion of the Park/Streetscape Site promptly after the
Termination Date, whereupon the City shall, at the City's cost and expense, be required tQ keep and
maintain such sod.
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4. Encumbrances. This Easement and the rights granted herein are subject to all liens,
encumbrances, covenants, conditions, restrictions, reservations, contracts, leases and licenses, easements
and rights of way pertaining to the Park/Streetscape Site that are of record as of the date of this Easement
(collectively, the "Encumbrances"). The use of the word "grant" in this Easement shall not imply any
warranty on the part of the City with respect to the status of title to the Park/Streetscape Site.
5. Insurance. The Developer shall maintain the following insurance at all times while this
Easement remains in effect: (a) commercial general liability coverage with minimum limits of Two
Million and No/100 ($2,000,000) Dollars per occurrence, combined single limit for bodily injury liability
and property damage liability; (b) business automobile liability coverage with minimum limits of One
Million and No/100 ($1,000,000) Dollars per occurrence, combined single limit for bodily injury liability
and property damage liability; and (c) workers compensation insurance for all employees in compliance
with the "Workers Compensation Law" of the State of Florida and all applicable federal laws. Such
insurance policies (except for workers compensation insurance) shall: (x) name the City as an additional
insured thereunder; (y) be written by insurance companies licensed to do business in Florida; and (z) not
be subject to cancellation or non -renewal without a minimum of thirty (30) days' notification by the
insurer to the City (except for non-payment of premium, which shall be subject to ten (10) days' notice)
with a copy to the attention of Risk Manager, 1700 Convention Center Drive, Miami Beach, Florida
33139. The Developer shall provide the City with one or more certificates of insurance evidencing all
such insurance coverages set forth above.
6. Representations of the City. The City hereby represents, warrants and covenants to and
with the Developer that the City is the fee simple owner of the Park/Streetscape Site and has the right,
title, capacity and authority to grant the easements granted herein, subject only to the Encumbrances.
7. Indemnification. The Developer shall indemnify, defend and hold harmless the City from
and against any actual, out-of-pocket damages, losses, liabilities, fees, costs and expenses (collectively,
"Losses") incurred by the City in any action, suit or proceeding brought against the City by any third -
party as a result of any negligent act or omission of the Developer in exercising its rights under this
Easement which first occurred prior to the Termination Date of this Easement, except for any Losses that
arise out of or are related to the gross negligence or willful misconduct of the City, the City's elected and
appointed officials (including, without limitation, the City's Mayor and City Commissioners), directors,
officials, officers, shareholders, members, employees, successors, assigns, agents, consultants,
contractors, subcontractors, experts, licensees, lessees, mortgagees, trustees, partners, principals, invitees,
affiliates, or the general public. The Developer shall directly pay all actual, out-of-pocket costs and
expenses related to any covered Losses, or legal defense required by the City for any covered Losses,
using legal counsel that is selected by the Developer and which is reasonably acceptable to the City,
pursuant to the foregoing. The City shall reasonably cooperate and collaborate (but at no expense to the
City) with the Developer in connection with any legal proceeding in which the Developer is defending the
City.
Miscellaneous.
8.1 This Easement shall be governed by, enforced and construed under the laws of
the State of Florida. Venue for all actions, litigation and/or other proceedings arising out of this Easement
shall be exclusively in Miami -Dade County, Florida. The parties hereby knowingly and voluntarily
waive the right to a trial by jury of any claim, controversy or disputed matter between them arising under,
out of or in connection with this Easement. The Prevailing Party in any action, litigation or other
proceeding that is based on any claim, controversy or other disputed matter arising under, out 'a or in
connection with this Easement shall recover from the non -prevailing party all fees, costs an e' es
(including, without limitation, reasonable attorneys' fees and costs through all trial,, appellate, an st-
49495785;2
EXHIBIT "S"
judgment levels and proceedings) incurred by the Prevailing Party in such action, litigation or other
proceeding. As used herein, the term "Prevailing Party" means the party who receives substantially the
relief sought upon final, non -appealable judgment, order, or other disposition of a court of competent
jurisdiction. The provisions of this Section shall survive the termination or expiration of this Easement.
8.2 The parties hereby acknowledge and agree that each has had an opportunity to be
represented by or consult with independent legal counsel and that any rule of construction which provides
that ambiguities are to be construed against the drafter shall not apply in the interpretation or construction
of this Easement. If any term, provision or portion of this Easement is for any reason held to be invalid,
illegal or unenforceable by a court of competent jurisdiction, then such term, provision or portion of this
Easement shall be given it nearest valid, legal and enforceable meaning, or construed as deleted,
whichever such court.may determine, and the same shall not invalidate the remaining.terms, provisions
and/or portions of this Easement, which remaining terms, provisions and portions of this Easement will
remain in full force and effect.
8.3 This Easement includes all exhibits attached hereto. This Easement, together
with all such exhibits, contains the entire agreement and understanding between the parties relating to the
subject matter of this Easement, and all prior or contemporaneous terms, covenants, conditions,
representations, warranties, statements, agreements and understandings made by or on behalf of the
parties, whether oral or written, are merged herein.
8.4 This Easement may not be amended, modified or terminated except by a written
instrument executed by the Owner and the City through its Public Works Director, or his designee, or
the successor administrative officer with jurisdiction over the matter, and which is recorded in the
Public Records of Miami -Dade County, Florida. This Easement shall inure to the benefit of and shall be
binding upon the parties and their respective successors and assigns.
8.5 The failure of any party to insist in any one or more instances upon strict
performance of any term, covenant, condition or other provision of this Easement will not be construed as
a waiver or relinquishment of the future enforcement of such term, covenant, condition or other provision
of this Easement.
8.6 Wherever appropriate in this Easement, the singular shall be deemed to refer to
the plural and the plural to the singular, and pronouns of each gender shall be deemed to comprehend
either or both of the other genders. The section and paragraph headings in this Easement are for
convenience only and shall not affect the meaning, interpretation or scope of the terms or provisions set
forth therein.
8.7 This Easement may be executed in multiple counterparts, each of which
individually shall be deemed an original, but when taken together shall be deemed to be one and the same
Easement.
8.8 This Easement shall never be construed as a conveyance in any manner
whatsoever of fee simple title to any portion of the Park/Streetscape Site, it being intended by the parties
that this Easement conveys only an easement interest with respect to the Park/Streetscape Site for the
specific uses and purposes set forth herein.
8.9 All of the rights, easements, and interests herein created and granted are and shall
be limited to and utilized solely for the uses and purposes expressly set forth in t ent.
Notwithstanding anything to the contrary contained in this Easement, the City shall not ,! rfini) d to
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EXHIBIT "S"
use or grant others the right to use, all or any portions of the Park/Streetscape Site so long as this Easement
remains in effect without the prior written consent of the Developer.
8.10 This Easement and the rights, easements, and interests herein created and granted
shall only become effective upon the recordation of this Easement in the Public Records of Miami -Dade
County, shall run with the land, and shall be binding on all persons holding title to said lands.
9. Notice. All notices, demands, requests or other communications which may be or are
required to be given, served, or sent by either the Developer or the City pursuant to this Easement shall be
in writing and addressed as follows:
If to Developer at: 1035 N. Miami Avenue, Suite 201
Miami, Florida 33136
Attn: Sandor Scher
sscher@clarocorp.com
With a copy to: Akerman LLP
98 SE 7 Street, Suite 1100
Miami, FL 33131
Attn: Neisen O. Kasdin, Esq.
neisen.kasdin@akerman.com
If to the City: City of Miami Beach
Attn: City Manager
1700 Convention Center Drive, 4th Floor
Miami Beach, Florida 33139
With copies to: City of Miami Beach
Attn: Public Works Director
1700 Convention Center Drive, 4th Floor
Miami Beach, Florida 33139
Each party may designate by notice in writing a new address to which any notice, demand, request or
communication may thereafter be so given, served or sent. Any notice or other communication (i) sent by
certified United States mail, postage prepaid, return receipt requested will be deemed effectively given or
received on the third (3rd) business day following the postmark date of such notice or other
communication; (ii) sent by overnight courier or by hand will be deemed effectively given or received
upon receipt or refusal, as the case may be; and (iii) sent by electronic mail will be deemed effectively
given or received on the day of transmission of such notice if sent on a business day before 6:00 P.M.
Eastern Standard Time, or on the following business day if sent after 6:00 P.M. Eastern Standard Time or
on a non -business day. Any notice or other communication given in the manner provided above by
counsel for either party will be deemed to be notice or such other communication from the party
represented by such counsel.
10. Enforcement. The rights, privileges, and remedies granted by this Easement are enforceable
exclusively by the City in its municipal capacity. Nothing in this Easement, whether express or implied,
confers upon the general public any enforcement rights against the Owner. Notwithstanding anything to
the contrary, neither party will be in breach of this Easement, and no enforcement may be sought against a..,
party through any means, unless such party (i) receives a written notice from the other party,; detailing_
with specificity the ways in which such party is in breach of this Easement, and ii fails to re detailing-
, su6�
breach within thirty (30) days from the date of such written notice, or, if the breach is suscepf ' t c.t
4949578512 \14° o-
EXHIBIT "S"
but cannot reasonably be cured within thirty days, then within sixty (60) days from the date of such
written notice, provided the breaching party promptly commences and diligently pursues the curing of
such breach within the initial thirty (30) day period.
11. Remedies. The parties may enforce the terms of this Easement by injunctive relief,
mandamus, and by any other remedies available at law or in equity. All rights, remedies, and privileges
granted to any party under this Easement are cumulative, and the exercise of any one or more such rights,
remedies, or privileges will not preclude the exercising party from exercising any other rights, remedies,
or privileges available to such party under this Easement or at law or in equity.
(Signature pages to follow)
49495785;2
EXHIBIT "S"
IN WITNESS WHEREOF, the undersigned have caused this Easement to be executed by
execution of this instrument as of this day of , 201_.
Witnesses:
Sign Name:
Print Name:
Sign Name:.
Print Name:
ATTEST:
City Clerk
STATE OF FLORIDA )
) SS:
COUNTY OF DADE )
CITY OF MIAMI BEACH, FLORIDA,
a municipal corporation
L-0
Mayor
The foregoing instrument was acknowledged before me this day of ,
20_ by , as of He is
personally known to me or has produced as identification and who did
(did not) take an oath.
NOTARY PUBLIC
Typed or Printed Name of Notary
My Commission Expires:
Serial No., if any:
;l.
c�
49495785;2 r
EXHIBIT "S"
ACKNOWLEDGED AND ACCEPTED this day of , 20_ by
Witnesses:
Sign Name:.
Print Name:
Sign Name:.
Print Name:
STATE OF FLORIDA )
) SS:
COUNTY OF DADE )
49495785;2
DEVELOPER:
Print name:
The foregoing instrument was acknowledged before me this _ day of ,
20_ by as of He is
personally known to me or has produced as identification and who did
(did not) take an oath.
NOTARY PUBLIC
Typed or Printed Name of Notary
My Commission Expires:
Serial No., if any:
EXHIBIT "S"
Exhibit "A"
Park/Streetscape Site
49495785;2 } }�,
L-A - i F'A GE
EXHIBIT "S"
Exhibit "B"
Legal Description for the Developer Property
[see attached]
CClli,iTy Oi: r, IMAI-DADc
S7i,T= C� f L0%;DA' cf the /� f
CCi�71FY twat ;iris is a true copy I
'e, County
c-- - - -
49495785;2