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HomeMy WebLinkAbout512-2005 RDA Reso RESOLUTION NO. 512-2005 A RESOLUTION OF THE CHAIRMAN AND MEMBERS OF THE MIAMI BEACH REDEVELOPMENT AGENCY, APPROVING AN APPROPRIATION OF FUNDS TO THE CITY, IN THE AMOUNT OF $14,130,000, FROM THE SOUTH POINTE REDEVELOPMENT AGENCY FOR THE COMPLETION OF THE DESIGN AND CONSTRUCTION OF THE SOUTH POINTE PARK IMPROVEMENTS, AS AUTHORIZED AND APPROVED PURSUANT TO CITY OF MIAMI BEACH RESOLUTION NO. 2005-25978 ; $5,000,000 OF WHICH WILL BE REFUNDED BY MIAMI-DADE COUNTY GENERAL OBLIGATION BOND FUNDS WHEN MADE AVAILABLE. WHEREAS, in 1996, the Mayor and City Commission adopted a Parks Bond Master Plan that included major improvements to South Pointe Park (the Park); and WHEREAS, in 1997, the Mayor and City Commission approved a Resolution authorizing the City to enter into an agreement with Bermello and Ajamil (B&A) for the design of improvements to the Park (the B&A Agreement); and WHEREAS, the City Commission authorized the issuance of (a new) RFQ NO. 16- 02/03 for architecture and engineering services for the design of Park improvements; and WHEREAS, at approximately the same time, the City's options for settling the long standing land use litigation related to the Alaska Parcel expanded to include the possible addition of approximately two acres to the Park; and WHEREAS, on July 28, 2004, the City reached a settlement on the long standing Alaska Parcel land use litigation and as part of the settlement agreement, the developer, The Related Group, is obligated to perform the improvements to the Park, at cost, without overhead, if the City notifies the developer of its concept plan by July 28, 2005; and WHEREAS, if the notification timeline is not met, the City would need to bid and build the Park according to its standard procedures; and WHEREAS, construction by the developer at its cost represents a projected substantial cost and time savings to the City; and WHEREAS, on September 8, 2004, the City Commission authorized the issuance of RFQ No. 39-03/04 which included a revised scope of services which addressed the land being added and related issues; and WHEREAS, on January 12, 2005, the City Commission authorized the execution of a Professional Services Agreement with Hargreaves Associates, Inc. (Hargreaves) limited to the planning of South Pointe Park improvements (the Project); and WHEREAS, the Notice to Proceed was issued on January 18, 2005 and the Project planning process has followed the standard Park improvement project sequence, from project kickoff meeting to Community Design Workshops (COW); and Agenda Item Date .3D 7- ').7-o~ WHEREAS, because the South Pointe Park Project was originally funded in part by General Obligati,on Bond Funds, the Administration presented the draft Basis of Design Report (BOOR) to the General Obligation Bond Oversight Committee for its support on July 11, 2005, and they recommended approval; and WHEREAS, the Project has a recommended construction budget of approximately $10.2 million for the improvements in the BOOR; and WHEREAS, the Project is located within the South Pointe Redevelopment Area (RDA), so the funding can be provided from South Pointe RDA Tax Increment Funds (TIF); and WHEREAS, the City Commission has approved the BOOR for the South Pointe Park Project pursuant to Resolution No..;loc?r-lS'Q78, and has further approved the exercise of the option of negotiating with TRG for the completion of design, construction documents, and construction of the Project at cost without overhead fees, as stated in the Alaska Parcel Settlement Agreement; and WHEREAS, the Chairman hereby recommends approval of an appropriation, in the amount of $14,130,000, for the design and construction of the Project; and WHEREAS, in approving the BOOR and the appropriation, the City will be able to proceed with the design development, construction documents, bidding and award, and construction phases of the Project.. NOW, THEREFORE, BE IT RESOLVED BYTHE CHAIRMAN AND MEMBERS OF THE MIAMI BEACH REDEVELOPMENT AGENCY, that the Chairman and Members of the Miami Beach Redevelopment Agency hereby approve an appropriation of funds to the City, in the amount of$14, 130,000, from the South Pointe Redevelopment Agency for the completion of the design and construction of the South Pointe Park Improvements, as authorized and approved pursuant to City of Miami Beach Resolution No. J,oo $"- zS-'tlB ; $5,000,000 of which will be refunded by Miami-Dade County General Obligation Bond Funds when made available. PASSED and ADOPTED this27th day ,2005. ATTEST:. ~ ~y Cwk Robert Parcher David Dermer T:\AGENDA\2005\JuI2705\Regular\RDA South Pointe Park-07272005-BODRreso,doc APPROVED AS TO FORM & LANGUAGE & FOR EXECUTION -If ~ Z-:;I.-)-,)~ Redeve opment Agency n Data General Coun~ CITY OF MIAMI BEACH MIAMI BEACH REDEVELOPMENT AGENCY ITEM SUMMARY m Condensed Title: A Resolution of the Chairman and Members of the Miami Beach Redevelopment Agency approving and officially adopting the Basis of Design Report (BODR) for the South Pointe Park improvements; authorizing the exercise of the option in Section 6 of the Alaska Parcel Settlement Agreement; and appropriating funds in the amount of $14,130,000 from the Redevelo ment A enc to com letel fund the Pro'ect. Issue: Shall the City Commission adopt the Resolution which includes the following? . Approval and adoption of the BODR. . Approval to enter into Agreement with the Related Group for design and construction of the Park. . Approval of the approach recommended for the dog park installations and design. . Appropriation of the total funding for the project in the amount of $14,130,000. . A roval of future additional fundin for the ier estimated at $1,500,000. Item Summary/Recommendation: In 1996, the City adopted a Parks Bond Master Plan that included improvements to South Pointe Park. In 1997, the City entered into an Agreement with Bermello and Ajamil (B&A) for the design improvements to South Pointe Park. In 2002, B&A and the City mutually agreed to remove this scope of work from the agreement with B&A. On July 28, 2004, the City reached a settlement on the Alaska Parcel land use litigation. As part of the Settlement Agreement, the developer is obligated to perform the improvements in the Park, at cost, without overhead, if the City notifies the developer of its concept plan by July 28, 2005. The City would be responsible for reimbursing the developer's cost. If the notification timeline is not met, then the City would need to bid and build the Park according to its standard procedures. Construction by the developer at its cost represents a projected substantial cost and time savings to the City. On January 12,2005, the City Commission authorized the execution of an Agreement between the City and Hargreaves. Hargreaves' Scope of Services is limited to the Planning Phase of the project. Based on the consensus achieved from community meetings and additional feedback from City staff, Hargreaves submitted for approval the BODR for the South Pointe Park's improvements. The proposed improvements include: redesigned park entrance, pavilion building with a small concession area, restroom facility, pedestrian walkways, playground, dog integrated park area without a fenced enclosure, extensive landscaping, irrigation, and site lighting. Although the improvements to the existing pier at South Pointe Park are not included as part of the current park funding or scope 1 the consultant was asked to review its condition and to provide an opinion as to its integration to the overall park design. Hargreaves' design recommendation is included in the BODR. Should the City Commission decide to incorporate the pier improvements to the South Pointe Park project, the additional project scope would be eligible to be funded from the South Pointe RDA TIF Funds. The Administration recommends the approval and adoption of the BODR as presented, the approval to exercise the option in the Alaska Parcel Settlement Agreement to have the developer complete the design and construction of the Project; and the appropriation of $14,130,000 from the Redevelopment Agency to completely fund the Project, $5,000,000 of which would be refunded when Miami-Dade County General Obligation Bond Funds become available. Adviso Board Recommendation: This item was recommended for approval by the General Obligation Bond Oversight Committee at their Jul 11, 2005 meetin . Financial Information: Source of Funds: I I Finance Dept. AGENDA ITEM DATE 3D 7-').1-O~ CITY OF MIAMI BEACH CITY HALL 1700 CONVENTION CENTER DRIVE MIAMI BEACH, FLORIDA 33139 WNW,miamibeachfl.gov To: From: Subject: MIAMI BEACH REDEVELOPMENT AGENCY MEMORANDUM Chairman and Members of the Board of the Date: July 27,2005 Miami Beach Redevelopment Agency Jorge M. Gonzalez ~ ~ Executive Director (). 0 A RESOLUTION OF THE CHAIRMAN AND MEMBERS OF THE MIAMI BEACH REDEVELOPMENT AGENCY, AUTHORIZING THE CHAIRMAN AND SECRETARY TO APPROVE AND OFFICIALLY ADOPT THE BASIS OF DESIGN REPORT (BODR) FOR THE SOUTH POINTE PARK IMPROVEMENTS (THE PROJECT); AUTHORIZING THE ADMINISTRATION TO EXERCISE THE OPTION STATED IN SECTION 6 OF THE SETTLEMENT AGREEMENT FOR THE ALASKA PARCEL WITH THE RELATED GROUP, TO DESIGN AND CONSTRUCT THE PARK PROJECT; AND TO APPROPRIATE FUNDS, IN THE AMOUNT OF $14,130,000, FROM THE SOUTH POINTE REDEVELOPMENT AGENCY FOR THE COMPLETION OF THE DESIGN AND CONSTRUCTION OF THE PROJECT, $5,000,000 OF WHICH WILL BE REFUNDED BY MIAMI-DADE COUNTY GENERAL OBLIGATION BOND FUNDS WHEN MADE AVAILABLE. ADMINISTRATION RECOMMENDATION: Adopt the Resolution. FUNDING: Although originally funded in part by City General Obligation Bond funds, the South Pointe Park project is currently budgeted to be completely funded from South Pointe RDA Tax Increment Financing (TIF) Funds and Miami-Dade County General Obligation Bond Funds when made available. The following is a breakdown of the Project funds. RDA $7,130,000 County GO Bond (to be refunded to RDA when made available) $5,000,000 RDA (City GO Bond reprogrammed to Flamingo Park Project) $2.000.000 Total $14,130,000 Continuum Settlement (to be determined) and any Cost savings Pursuant to settlement with The Related Group (to be determined) may reduce the RDA funding component. RDA Estimated funding for Pier Renovation $1,500,000 ANALYSIS: Neighborhood South Pointe Park, located within the South Pointe Redevelopment Area (RDA) and South Miami Beach Redevelopment Agency Memorandum July 27, 2005 South Pointe Park Basis of Design Report (BOOR) Page 2 of 5 Pointe Neighborhood, is bordered by multi-family high density developments to the North and West, the Atlantic Ocean to the East, and Government Cut to the South. Project Description The passive regional park lies at the Southern tip of Miami Beach. Anticipated Park improvements consist of the following: . Redesigned park entrance . New pavilion building, including a small concession area . New restroom facility . Pedestrian walkways . Playground . A dog integrated park area . Extensive Landscaping . Irrigation . Site lighting BACKGROUND: On June 19, 1996, the City adopted a Parks Bond Master Plan that included major improvements to South Pointe Park. On July 16, 1997, the Mayor and City Commission approved a Resolution authorizing the City to enter into an Agreement with Bermello and Ajamil (B&A) for the design of improvements to South Pointe Park. Because a minimal degree of planning of the park improvements was completed by 2002, B&A and the City agreed to remove this scope of work from the agreement with B&A and the City Commission authorized the issuance of a new Request for Qualifications (RFQ) for architecture and engineering services for the design of the park improvements. Responses to the RFQ were received in 2003, and an Evaluation Committee was appointed to short-list the top ranked firms. At approximately the same time, the City's options for settling the long standing land use litigation related to the Alaska Parcel expanded to include the addition of approximately two acres of land to the South Pointe Park. Exercising this option, the City substantially affected the scope of services for the projectoutlined in the RFQ. Therefore, the RFQ for architect and engineering services for the park was terminated by the City Commission on February 25, 2004. On July 28,2004, the City reached a settlement on the Alaska Parcel land use litigation. As part of the Settlement Agreement (Attached), the developer is obligated to perform the improvements in the Park, at cost, without overhead, if the City notifies the developer of its concept plan by the latter of either July 28, 2005 or two months after a Building permit is issued for the Apogee project. The City would be responsible for reimbursing the developer's cost. If the notification timeline is not met, then the City would need to bid and build the Park according to its standard procedures. Construction by the developer at its cost represents a projected substantial cost and time savings to the City. On September 8, 2004, the City Commission authorized the issuance of RFQ No. 39-03/04 Miami Beach Redevelopment Agency Memorandum July 27, 2005 South Pointe Park Basis of Design Report (BOOR) Page 3 of 5 which included a revised scope of architect and engineering services for the park improvements. Six responses were received. An Evaluation Committee was appointed by the City Manager to short-list the top ranked firms. Hargreaves Associates, Inc. (Hargreaves) was the top ranked firm. On January 12, 2005, the City Commission authorized the execution of an Agreement between the City of Miami Beach and Hargreaves for the planning of South Pointe Park Improvements. Hargreaves' Scope of Services is limited to the Planning Phase of the project. The Consultant's Notice to Proceed was issued on January 18, 2005. Project planning process has followed the standard park improvement project sequence, from project Kickoff meeting to Community Design Workshops (COW). COW NO.1 was held on April 7, 2005, where residents were generally supportive of the plans presented. There was a general consensus that the design approach was on track with the community's needs, but the attendees expressed the desire to have the following items further addressed prior to the second COW: . Park entrance at Washington Avenue and Ocean Drive . Dunes appearance / programming . Parking configuration within the park . Planting buffer from parking within the park . Cut-walk at Smith & Wollensky restaurant . Art / Lighting experience . Bay Inlet Input from COW No.1 was analyzed and plans were modified, as appropriate, and presented at a second COW (June 2, 2005). Residents' feedback showed support for the Recommended Plan presented by Hargreaves. The residents were generally supportive of the plan presented and felt that the design needed some minor fine-tuning. The following were some of the issues discussed: . Possibility of additional park funding . Possibility to decrease parking . Possibility to accommodate dogs in the park without having a fenced enclosure . Possibility of reconfigured outdoor seating for Smith & Wollensky restaurant Based on the consensus achieved from the aforementioned meetings and additional feedback from City staff, the draft BOOR for the South Pointe Park improvements was completed and submitted by Hargreaves on June 27, 2005. The draft BOOR was distributed to the relevant City departments for their review and comment. Comments from the relevant City departments have been reviewed and final BOOR has been prepared and submitted by Hargreaves. Because the South Pointe Park project was originally funded in part by General Obligation Miami Beach Redevelopment Agency Memorandum July 27, 2005 South Pointe Park Basis of Design Report (BOOR) Page 4 of 5 Bond Funds, the Administration presented draft BOOR to the General Obligation Bond Oversight Committee for their support on July 11 , 2005. The Park design was well received by the General Obligation Bond Oversight Committee and the draft BOOR was recommended for approval. The South Pointe Park project has a current construction budget of approximately $8.8 Million. The recommended scope for improvements in the BOOR is currently valued at $10.2 Million, a $1.4 Million difference. The project is located within the South Pointe Redevelopment Area (RDA), so the additional funding can be provided from South Pointe RDA Tax Increment Funds (TIF) if the BOOR is adopted as recommended. The settlement Agreement for the Alaska Parcel between the City of Miami Beach and The Related Group (TRG) provides the City exercises the option of negotiating with TRG for the completion of design, construction documents, and construction of the Project at cost without overhead fees provided the Administration completes and obtains approval by the Mayor and City Commission of the BOOR within the latter of either twelve months of the date of the Agreement which is dated July 28, 2004 or two months after the issuance of a Building permit for the Apogee project. In addition to the approval of the BOOR, the Administration seeks authorization from the Mayor and City Commission to enter into negotiations with TRG for the completion of the design and the construction of the Project as stipulated in the Agreement. Based on recent conversations between the parties, it is the intent of the Administration to enter in to negotiations that will retain involvement by Hargreaves in the continuing development of the park design while allowing the commissioning of a local architect to work with Hargreaves and TRG to complete the construction documents. TRG will then retain a contractor and provide the City with a Guaranteed Maximum Price which will contain no overhead fees as stipulated in the Agreement. The City will maintain oversight of the Project throughout. Finally, the City seeks authorization to appropriate the necessary funding, in the amount of $14,130,000, to complete the design, pricing and construction of the Project. The appropriation will fund the consultant services, the construction, the soft costs related to the City such as the CIP management fees, a Project contingency, and an estimated amount for fixtures, furniture and equipment (FF&E). The following is a breakdown of the project costs. BOOR Budgeted Improvements BOOR Proposed Improvements to be funded Consultants Services IT installations FF&E CI P Management fees Contingency AIPP Total $8,800,000 $1,400,000 $1,500,000 $ 50,000 $ 50,000 $ 700,000 $1,477,000 $ 153.000 $14,130,000 City Commission Memorandum July 27,2005 South Pointe Park Basis of Design Report (BOOR) Page 5 of 5 Although the improvements to the existing pier at South Pointe Park are not included as part of the current park funding or scope, the Consultant was asked to review its condition and to provide an opinion as to its integration to the overall park design. Hargreaves' design recommendation is included in the BOOR. Should the City Commission decide to incorporate the pier improvements to the South Pointe Park project, the additional project scope, with an estimated construction value of $1 ,500,000, would be eligible to be funded from the South Pointe RDA TIF Funds in the future but would not be part of the Agreement between the City and TRG. CONCLUSION: The Administration recommends approval of the South Pointe Park Basis of Design Report (BOOR) as submitted. By approving the BOOR, the City will officially end the planning process for this project and adopt the design concept. The Administration also recommends approval for the City to exercise the option of negotiating with TRG for the completion of design, construction documents, and construction of the Project at cost without overhead fees as stated in the Alaska Parcel Settlement Agreement. The Administration also recommends approval to complete the design and renovation of the South Pointe Pier in the future as a separate Project. The Administration finally recommends approval of an appropriation, in the amount of $14,130,000, for the design and construction of the Park project. The Administration will be able to proceed with the design development, construction documents, bidding and award, and construction phases ofthe Project with these approvals. Attachments T:\AGENDA\2005\JuI2705\Regular\South Pointe Park-07272005-BODRMemo.doc SETTLEMENT AGREEMENT ~t~.. THIS SETTLEMENT AGREEMENT (the "Agreement") is made and entered into as of the :2~ day of .J ULt,;.-- , 2004, by and among: (1) the City of Miami Beach, Florida, a Florida munklpal corporation (the "City"), and the Miami Beach Redevelopment Agency, a Florida public agency ("RDA"), collectively parties of the first part; (2) East Coastline Development, Ltd., a Florida limited partnership ("East Coastline"), Azure Coast Development, Ltd., a Florida limited partnership ("Azure"), Beachwalk Development Corporation, a Florida corporation ("Beachwalk"), Sun & Fun, Inc., a Florida corporation ("Sun & Fun"), Sandpoint Financial, Ltd., a Florida limited partnership ("Sand point"), Portofino Real Estate Fund, Ltd., a Florida limited partnership ("PREF"), Santorini Isle, Inc., a Florida corporation ("Santorini"), West Side Partners, Ltd, a Florida limited partnership (West Side"), 404 Investments, Ltd., a dissolved Florida limited partnership ("404"), St. Tropez Real Estate Fund, Ltd., a dissolved Florida limited partnership ("St. Tropez") and Marquesa, Inc., a Florida corporation ("Marquesa"), collectively, parties of the second part; and, (3) TRG-Alaska I, Ltd., a Florida limited partnership ("A-I") and TRG-Alaska III, LLC, a Florida limited liability company ("A-III"), collectively, parties of the third part. The parties of the second part are hereinafter referred to as the "Portofino Entities" and the parties of the third part are hereinafter referred to as the "Related Entities." Introduction and Backaround A. The Lawsuits. The Portofino Entities have filed a series of lawsuits against the City claiming, inter alia, damages and rights under the Bert J. Harris Private Property Rights Act, other civil rights violations, reverse spot zoning, breach of contract~ and seeking other relief in those certain lawsuits more particularly described in Exhibit "A" attached hereto (the "Lawsuits"). B, The Lands. In general, the Lawsuits arose out of certain prior charter amendment, zoning and land use actions taken by the City affecting, among others, those parcels of land (the "Land") located within the City, and commonly referred to as the -Block 1 Parcel," the -Blocks 51 and 52 Parcels", the "Hinson Tract," the "Goodman Terrace" property, and the "Alaska Parcel"; the Hinson Tract, Goodman Terrace and Alaska Parcel are collectively referred to as the "Alaska Assemblage"; all as more particularly described in Exhibit "B" attached hereto. C. Related's and Portofino's Interests. On September 11, 2003, the Related Entities acquired fee simple title to the Alaska Assemblage and the Blocks 51 and 52 Parcels from the Portofino Entities. The Portofino Entities retain title to the Block 1 Parcel, and interest in the Lawsuits. The Related Entities represent that (i) they and their officers executing this Agreement have full authority to enter this Settlement Agreement, (ii) they have legal title to the Alaska Assemblage and Blocks 51 and 52 Parcels, subject to no monetary liens except for real estate taxes and recorded mortgages, where the holders \\MIA.SRV01\GORSONM\1551613v15\ 1 FB7T15_,DOC\7/28104\ 10840,018700 have no objection to this Agreement, (iii) they are the only parties with interests in the Alaska Assemblage and Blocks 51 and 52 Parcels necessary to join in and make their obligations under this Agreement valid and binding. The Portofino Entities represent that (i) they and their officers executing this Agreement have full authority to enter into this Settlement Agreement, (ii) they have legal title to the Block 1 Parcel subject to no monetary liens except for real estate taxes and a recorded mortgage, where the mortgage holder has no objection to this Agreement, and (iii) they are the only parties with interest in the Block 1 Parcel necessary to join in and make their obligations under this Agreement valid and binding. D. Letter of Intent. On February 25, 2004, the City Commission of Miami Beach unanimously approved the terms of a letter of intent to settle the Lawsuits, by Resolution No. 2004-25509. The parties now wish to set forth the procedures and expectations by which, if the City and/or certain City boards approve certain applications for development approvals to be filed by the Portofino and Related Entities, the Lawsuits will be resolved and this Settlement Agreement will be fully implemented. All parties acknowledge, however, that the City and/or its boards are not agreeing in advance to any particular outcome on the applications to be filed that will be required to effectuate and implement the terms of this Agreement. E. Approval of Court. The parties have further agreed to seek the approval of either the state court or the federal court (as their respective attorneys hereafter agree) to the terms of this Agreement and for enforcement hereof provided that this Agreement shall in no way be conditioned upon such approval. NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree to fully settle the Lawsuits on the terms and conditions set forth below: 1. Recitations. The foregoing recitations are true and correct and are incorporated herein by this reference. 2. Development Approvals. (a) Condition to Obliaation. (i) The obligations of any and all of the Portofino Entities and/or the Related Entities under this Agreement are specifically conditioned upon the City and/or its boards, departments or agencies acting in their independent, quasi-judicial and/or legislative governmental capacity to consider and formally approve those certain amendments to the City Code and other governmental actions as more particularly described in Exhibit "C" hereto (the "Development Approvals".) (ii) The Development Approvals shall be deemed approved at such time as all requisite governmental action has become final, binding and no longer subject to appeal, and if appealed, all such appeals shall have been finally and -2- successfully resolved, which shall herein be referred to as having obtained the "Final Approvals." (iii) In the event that all of the Development Approvals, for any reason, have not been obtained on or before October 15, 2004 and/or the Final Approvals have not been obtained by December 24, 2004 or, in the event that any of the required Development Approvals have been denied by the City or other applicable governmental authority, then in any such event either the Portofino Entities or the Related Entities or the City at their respective sole option, may elect to terminate this Agreement by written notice of termination to the other parties (signed by the parties or by their respective attorneys,) whereupon all of the provisions and obligations of the parties under this Agreement shall fully terminate and be null and void, and all Development Approvals which have been theretofore adopted shall be treated by the City and the other parties as revoked and of no further force and effect. The Portofino Entities and the Related Entities shall have the right in their sole discretion to extend the foregoing deadlines by instrument in writing executed by the attorneys for all of the Portofino Entities and Related Entities. Should this agreement terminate, the parties agree to promptly execute and deliver to each other such other documentation as may be required to confirm the termination and revocation, and the parties shall otherwise be restored to the condition that existed immediately prior to the date of execution of this Agreement. The provisions of this paragraph 2(a)(iii) shall survive the termination of this Agreement. (iv) If the Final Approvals are obtained prior to the timely delivery of a written notice of termination permitted under paragraph 2(a){iii) above, then there shall be no further right of termination hereunder. In the event this Agreement is terminated pursuant to paragraph 2{a)(iii) above, each of the parties shall have the right to pursue any of the Lawsuits that existed prior to the execution of this Agreement, as if this Agreement had never taken place. The parties hereby covenant not to sue on or appeal any actions that any of the parties take or do not take on applications in pursuit of the Development Approvals. (b) Applications for Development Approvals. The Portofino Entities and Related Entities have initiated previously to the approval and execution of this Agreement, or will initiate subsequent to its execution, all of the Development Approval applications. The City is currently processing all Development Approval applications. The parties shall cooperate with each other in continuing to timely process (and City shall join in as necessary) all necessary Development Approvals from City, county, regional, state, and federal agencies as required by law. (c) Exercise of City Discretion. The parties recognize and agree that certain provisions of this Agreement will require the City and/or its boards, departments or agencies, acting in their governmental capacity, to consider certain changes in the City's Comprehensive Plan, Land Development Regulations and other applicable City codes, plans or regulations, as well as to consider other governmental actions as set forth in this Agreement. All such considerations and actions shall be undertaken in accordance with established requirements of federal or state statutes and City or county -3- ordinances, or other applicable law, in the exercise of the City's jurisdiction under the police power, as well as the requirements of this Agreement. Nothing in this Agreement is intended to limit or restrict the powers and responsibilities of the City in acting on applications for Comprehensive Plan changes, and applications for any other of the Development Approvals, by virtue of the fact that the City may have consented to the filing of such applications, solely in its capacity as the owner of affected lands or as the adjacent property owner, or by virtue of the City's entering into this Agreement. The parties recognize that the City, and its boards, retain sole discretion under their police powers as to whether to grant or deny the applications for Development Approvals. The parties fully 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 contained in this Agreement shall entitle the Portofino Entities or the Related Entities to compel the City to t~ke any actions processing or approving the applications for Development Approvals, or other actions contemplated by this Agreement, save and except the provisions of paragraphs 3 and 4 below if the Final Approvals are obtained prior to a termination of this Agreement. 3. Dismissal of Lawsuits and exchanQe of releases. The parties have agreed to continue and abate the Lawsuits until such time as the Final Approvals have been obtained or this Agreement has been terminated, in accordance with its terms, whichever is earlier. Upon obtaining the Final Approvals, the Lawsuits shall be dismissed with prejudice and the parties shall exchange releases in the forms attached as Exhibit "0" hereto. 4. Suoolemental Actions and Documentation. Contingent upon obtaining all of the Final Approvals, the parties hereto agree to accomplish the following as soon as reasonably feasible after the Final Approvals have been obtained, or if a time period is specifically provided for in the following paragraphs, within such time period specified: (a) Portions of Alaska. A-1 shall promptly execute and deliver a special warranty deed to the City in the form attached hereto as Exhibit "E", conveying title to approximately 87,550 square feet of land area within the Alaska Assemblage as more particularly described in Exhibit "E" (the "City Alaska Property"), and which title shall be subject to those certain permitted exceptions (including use restrictions) listed in Exhibit liE" and the covenant attached as Exhibit "I". Simultaneously with delivery of the forgoing special warranty deed, the City shall execute and deliver to A-1 a construction, staging and encroachment easement in the form attached hereto as Exhibit "F" for purposes of (1) construction of the baywalk and seawall repairs, (2) any additional construction required by paragraph 6 below, (3) a 40 foot staging and construction easement for the residential tower, garage, and other improvements to be built by the Related Entities on the portion of the Alaska Assemblage being retained by them (4) a 15 foot maintenance easement for future maintenance of the residential tower and garage and (5) an underground encroachment easement for minor encroachment of foundations for the residential tower and garage. A-1 shall simultaneously (i) execute and deliver to the City an attachment and cladding easement permitting the City at its cost and expense to berm up to and landscape the southern -4- facade of the parking garage to be built on the Alaska Parcel by A-1 and/or to connect any desired public or other improvements permitted to be constructed by the City on the City's portion of the Alaska Parcel to the southern face of A-1's parking garage (provided that the same does not adversely affect the structural integrity of A-1 's parking garage nor permit any access thereto by the City) and also permitting the City to remove at City's cost and expense any decorative detail cladding from the Southern face of A-1's garage for such purposes. Notwithstanding the foregoing, any berming and landscaping required by the City's Design Review Board as a method of cladding for the residential tower, garage, and other improvements to be built by the Related Entities on the portion of the Alaska Assemblage being retained by them shall be at A- 1 's cost and expense; (ii) execute and deliver to the City an underground encroachment easement for minor encroachment of foundations for any such City improvements; and (iii) deliver to the City a title policy from Chicago Title Insurance Company issuing title to the City's portion of the Alaska parcel and to the Washington Avenue Extension property in the amount of $1 0,000,000 showing title to be as set forth in the Exhibit "E". The foregoing easements to the City shall be drawn in the form attached hereto as Exhibit "G". The Portofino Entities and the Related Entities will cause Murano Two, Ltd., a Florida limited partnership, to deed to the City the property referred to as the "South Easement Area" in that certain Grant of Easements (150 Foot Easement Area) recorded on May 27, 1999 in Official Records Book 18626 at Page 4425 of the Public Records of Miami-Dade County, Florida, pursuant to the form deed attached hereto as Exhibit "P," and subject to the title exceptions and use restrictions set forth in Exhibit "P". The City may elect in its sole discretion not to receive the deed to such South Easement Area parcel. (b) Federal TrianQle. If A-I and the City are able to obtain approval of the federal government, the City will deed to A-I not more than 450 square feet of property within the parcel commonly referred to as the Federal Triangle and A-I will deed to the City an equal amount of land area, within the Alaska Assemblage pursuant to the form deeds attached hereto as Exhibit "H" as more particularly described in Exhibit "H" and subject to the title exceptions (including use restrictions) listed in Exhibit "H" as well as any requirements imposed by the federal government. In the event the City and A-I are unable to obtain the approval of the federal government to the title transfers referred to in this paragraph 4(b) by the time all of the Final Approvals have been obtained, then the relevant parties shall seek approval of the federal government to permit A-I and its successors to have vehicular and pedestrian access across the surface of such portion of the Federal Triangle pursuant to the form perpetual easement attached hereto as Exhibit "J". The City and A-1 shall have the right in their sole discretion to extend the foregoing deadline by instrument in writing executed by the attorneys for the City and A-1. Notwithstanding whether the federal government approves any exchange of lands or access rights, the parties shall enter into the covenant attached as Exhibit "I." -5- (c) Boat Basin. A-I is pursuing on behalf of and as directed by the City all necessary state, county and federal approvals to fill in, or alternatively, to bridge over the existing boat basin within the Alaska Assemblage. The City and A-I agree to cooperate in seeking all such necessary approvals. A-1 shall not proceed with permitted work on the boat basin unless and until directed in writing by the City Manager under authority of this Agreement. A-1 shall transfer all rights to the boat basin improvements to the City along with its conveyance referred to in Exhibit "E" attached hereto. The City may elect in its sole discretion not to fill in or bridge over such boat basin. (d) Bavwalk. Provided the City determines the location and dimensions of its baywalk amenities and appropriate permits therefore are issued by all applicable governmental authorities within 12 months of the date of this Agreement, then prior to the granting of the first temporary certificate of occupancy for the residential tower to be built within the Alaska Assemblage by A-I, A-I, at its sole cost and expense, will build-out, extend, and furnish the existing baywalk across the waterfront edge of the Alaska Assemblage and Federal Triangle from Washington Avenue to the parcel commonly known as SSDI South at a location within the City Alaska Property as the City determines. The build-out and furnishing shall be done substantially to the standards hereafter designated by the City, provided that A-1 shall only be responsible for payment of costs up to 125% (on a cost to install basis) of the standards presently designed and installed on the portion of the baywalk to the west of the Murano condominium project. As part of such baywalk construction, in addition, A-I will restore the shoreline with sheet pile and rip rap as required by the appropriate regulating authorities. If the City does not timely provide the foregoing information or if the permits are not timely issued therefore as provided above, then at the time of issuance of the first temporary certificate of occupancy for the residential tower, A-I will deliver a full payment and performance bond to the City guarantying completion of the baywalk and seawall work and will complete same within 12 months of the date of issuance of the permits. (e) Washinaton Avenue Extension. Before a building permit is issued for the residential tower to be developed on the Alaska Assemblage, the Washington Avenue Extension comprising approximately 42,000 sq. ft., will be deeded to the City, pursuant to a deed in the form attached as Exhibit "L" hereto. Upon such conveyance, all provisions of the Washington Avenue Extension Easement Dedication Agreement will terminate except for the provisions contained in paragraph 4 thereof, which shall survive, subject to a covenant to rebuild for FAR and Setback purposes as set forth in Exhibit "I". (f) Block 51 Parcel. (i) End Parcels. The City shall promptly execute and deliver a deed to A-III in the form attached hereto as Exhibit "M", conveying title to the end parcels the City owns on the south side of Block 51 as more particularly described in Exhibit "M" and subject to permitted exceptions listed in Exhibit "M". -6- (ii) Bridoino Alley. The City will permit A-III and its successors to bridge over the alley in Block 51 at the 3rd, 4th and 5th floor levels to access parking between the north and south sides of the Block pursuant to a perpetual air-rights easement in the form attached as Exhibit "N" hereto. A-III will not encroach into such alley in a manner so as to block vehicular deliveries. City will also permit the utility lines currently existing in the alley to be placed underground, subject to approval of the City's public works department. (iii) Parkino for Shops At Po rtofi no. A-III shall have the right to develop up to 75 spaces to satisfy the required parking for the Shops at Portofino retail parcel on Block 51 (the "Portofino Retail Parking"). The FAR on Block 51 shall not exceed 1.5 for A-Ill's intended development (excluding such Portofino Retail Parking) nor exceed 2.0 including such Portofino Retail Parking. (iv) Ramos. A-III shall have the right to develop required parking for up to 40 spaces in order to service lots 10 through 14 inclusive (the "Ramos Lots") on Block 51 and utilize FAR rights from those parcels, pursuant to a covenant-in-Iieu of unity of title in the form approved by the City Attorney. (g) Deceleration Lane. Subject to obtaining appropriate regulatory approvals, the Related Entities will construct, at their sole cost and expense, a deceleration lane at the south side of 1-395 as it intersects with the west side of Alton Road which will provide for (i) an eastbound right-turn lane on Fifth Street at the Alton Road intersection, (ii) dual northbound left-turn lanes on Alton Road at Fifth Street intersection, and (iii) modification of signalization at the Fifth Street/Alton Road intersection to complement the foregoing turn lanes pursuant to (i) and (ii) above, as required, such work to be completed (A) prior to issuance of a final Certificate of Occupancy for the ICON building if all regulatory approvals and permits are given by no later than October 1, 2004, otherwise (B) within 12 months after the granting of such approvals and permits. The Related Entities shall seek such regulatory approvals in good faith with due diligence. 5. Concept Plan. In order to provide assurances to the City that the future development of the Alaska Assemblage, the Block 51 Parcel, the Block 52 Parcel, and the Block 1 Parcel will be compatible with the City's desire for good neighborhood planning, the Related Entities and the Portofino Entities have agreed to submit to the City Commission for approval a concept plan for each of those parcels after consultation and consideration with neighborhood representatives, the City's internal staff, the Design Review Board and the Planning Board, and the City's outside architectural consultant. In the event the Concept Plan is not approved by September 30,2004, then in such event either the Portofino Entities or the Related Entities or the City at their respective sole option, may elect to terminate this Agreement by written notice of termination to the other parties (signed by the parties or by their respective attorneys), whereupon all of the provisions and obligations of the parties under this Agreement shall fully terminate and be null and void, and all Development Approvals which have been theretofore adopted shall be treated by the City and the other parties as revoked and of no further force and effect. The Portofino Entities and the Related Entities shall -7- have the right in their sole discretion to extend this deadline by written instrument signed by them or their attorneys. Once approved by the City, all subsequent actions taken by the City in connection with any other requested development approvals regarding these parcels must be consistent with the approved plan; provided that in the event of any conflict between the City's land development regulations existing as of the date of the obtaining of the Final Approvals and the concept plan, the said land development regulations shall govern. In addition, the Related Entities agree to reimburse or remit to the City, within 30 days of invoice, for the expenses of their outside architectural consultant in reviewing the concept plan, making recommendations to the plan, and meeting with the City, the neighborhood representativesl, and the other parties to this Agreement with respect thereto. 6. City Garaoe or other Public Facilities. To the extent the City, within the later of (a) 12 months of the date of this Agreement or (b) two months after the building permit is issued for the project to be constructed by A-1 on the portion of the Alaska Assemblage to be retained by A-1 and not conveyed to the City, develops a concept plan for public parking or other public facilities in South Pointe Park or the portion of the Alaska Assemblage to be deeded to the City under this Agreement, then contingent upon obtaining all of the Final Approvals, A-I, at the same time it is staged for development of the residential tower to be built on the balance of the Alaska Assemblage, will cause its architects to design and its contractors to build such public garage or other public facilities at A-I's direct cost (without overhead fees), and at City expense. That is, City will be responsible for payment of all direct costs incurred by A-I to develop such parking or other public facilities on the City's behalf. 7. DeveloDment of ReaionallmDact. Within 90 days after the issuance of the final certificate of occupancy on the Portofino Entities' and Related Entities' properties within the Alternative Portofino Development of Regional Impact, the Portofino Entities shall file a report with the appropriate governmental agencies that releases remaining unused trips attributable to the DR!. Except as otherwise modified by the terms of this Agreement or of the Exhibits hereto, the terms of the DRI and of that certain Agreement dated May 18, 2000 among West Side, Yacht Club at Portofino, Ltd., a Florida limited partnership, Sun & Fun, Beachwalk, Azure, East Coastline, Sand point, TRG-SSDI, Ltd., a Florida limited partnership and the City shall remain in full force and effect. 8. Miscellaneous Provisions. (a) No Permit. This Agreement is not and shall not be construed as a development permit, development approval, development order or authorization to commence development, nor shall it relieve the Portofino Entities and/or the Related Entities of the obligations to obtain necessary amendments to the Redevelopment Plan, if any, and the Comprehensive Plan, the Land Development Regulations, and any other development approvals that are required under applicable law and under and pursuant to the terms of this Agreement. (b) Further Assurances. It is the intent and agreement of the parties that they shall cooperate with each other to effectuate the purposes and intent of, and to -8- satisfy their obligations under, this Agreement in order to secure to themselves the mutual benefits created under this Agreement; and, in that regard, the parties shall execute such further documents as may be reasonably necessary to effectuate the provisions of this Agreement; provided that the foregoing shall in no way be deemed to inhibit, restrict or require the exercise of the City's police power or actions of the City when acting in a quasi-judicial or legislative capacity. This paragraph is a statement of intent only and shall not give rise to any cause of action if any party acts contrary to the intent hereof. The parties acknowledge that during the period that the Portofino and Related Entities have engaged in development of the South Pointe Area a number of instruments have been recorded, dealing with such matters, as, for example, and not by way of limitation, temporary land use for parking purposes or construction staging and access, various easements and the like. Pursuant to this Agreement, title to various properties is to be transferred, such as, for example, conveyance of portions of the Alaska Assemblage and the Washington Avenue extension from A-1 to the City. Many conditions, restrictions and limitations of record contained in the recorded instruments are, or will be, obsolete or irrelevant. Accordingly, the parties agree to mutually review title to the subject properties and to make, execute, deliver and exchange instruments which will remove or release such obsolete conditions, restrictions and limitations. All such conditions, restrictions and limitations not removed or released shall remain in full force and effect. (c) Omissions. The parties hereto recognize and agree that the failure of this Agreement to address a particular permit, condition, term, or restriction shall not relieve the Portofino Entities and the Related Entities of the necessity of complying with the law governing said permitting requirements, conditions, term, or restriction notwithstanding any such omission. (d) Notices. Any notices required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been given if delivered by hand, sent by recognized overnight courier (such as Federal Express) or mailed by certified or registered mail, return receipt requested, in a postage prepaid envelope, and addressed as follows: If to the City at: City of Miami Beach 1700 Convention Center Drive Miami Beach, Florida 33139 Attn: City Manager -9- With copies to: City of Miami Beach 1700 Convention Center Drive Miami Beach, Florida 33139 Attn: City Attorney 500 South Point Drive, Suite 220 Miami Beach, Florida 33139 Attn: Thomas Kramer If to the Portofino Entities Or anyone or more of them: With a copy to: Hogan & Hartson, L.L.P. 1111 Brickell Avenue, Suite 1900 Miami, Florida 33131 Attn: Parker Thomson If to the Related Entities Or either of them The Related Group 2828 Coral Way, Penthouse Suite Miami, FL 33145 Attn: Chairman With a copy to: Greenberg Traurig P.A. 1221 Brickell Avenue Miami, FL 33131 Attn: Matthew B. Gorson Notices personally delivered or sent by overnight courier shall be deemed given on the date of delivery and notices mailed in accordance with the foregoing shall be deemed given three (3) days after deposit in the U.S. Mail. (e) Construction. (i) This Agreement shall be construed and governed in accordance with the laws of the State of Florida. All of the parties to this Agreement have participated fully in the negotiation and preparation hereof; and, accordingly, this Agreement shall not be more strictly construed against anyone of the parties hereto. (ii) In construing this Agreement, the use of any gender shall include every other and all genders, and captions and section and paragraph headings shall be disregarded. (iii) All of the exhibits attached to this Agreement are incorporated in, and made a part of, this Agreement. (f) Time of Essence. Time shall be of the essence for each and every provision hereof. -10- (g) Entire Agreement. This Agreement, together with the documents referenced herein, constitute the entire agreement and understanding among the parties with respect to the subject matter hereof, and there are no other agreements, representations or warranties other than as set forth herein. This Agreement may not be changed, altered or modified except by an instrument in writing signed by the party against whom enforcement of such change would be sought. (h) Successors and Assign; Third Party Beneficiary. The benefits, rights, duties and obligations given to the parties under this Agreement shall inure to the benefit of and bind their successors in title and assigns. The parties acknowledge and agree that except only for the foregoing successors and assigns, there are no third party beneficiaries under this Agreement or the Exhibits attached hereto. (i) Approval by the City. The parties hereto understand and agree that this Agreement will not be binding on the City until such time as the City Commission of the City of Miami Beach has approved same. G) Surveys. All parcel sizes, and calculations based thereon, shall be subject to verification by certified survey. (k) Limitation of Remedies. In the event any party hereto fails or refuses to execute any of the deeds or easements required hereunder, then the sole and exclusive remedies available to the non-defaulting party or parties for such failure or refusal shall be those available in equity, including without limitation, specific performance, injunction and mandamus. The parties hereto waive the right to seek recovery of monetary damages or sanctions as a means of enforcement of any rights under this Agreement. Prior to initiating any litigation under this Agreement or under any of the Exhibits attached hereto, the party or parties desiring to initiate litigation will provide written notice to the other party or parties and shall be available for a period of 30 days after such written notice to attempt to meet and mediate the dispute prior to initiating litigation. (I) Non-Admissibility, Actions taken by any of the parties hereto pursuant to or in furtherance of the provisions hereof shall not be admissible in any proceeding under the Lawsuits in the event the transactions contemplated hereunder are not consummated. (m) Sovereign Immunity. Nothing in this Agreement or the exhibits attached hereto shall be deemed to be a waiver by the City of its rights and privileges under Florida Statutes Section 768.28. -11- 1 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. CITY: , ~ It.c ,.),.f ..Ii I ' .. (l. :{{,"'\.U::~ Signed, sealed and delivered in the presence of: Attest: ')1. I (/..1 Li.~ City Clerk APPROVED AS TO FORM & LANGUAGE & FOR EXECUTION ~ 2- "],-vy Date: -12- Attest: )1 ) " ~ ~'l t ./ICL..... t Secretary C(.. kl o-::,L~~ ~ ~ '. \.. I " ) ;' l/d/L/' " Name: -13- THE MIAMI BEACH REDEVELOPMENT AGENCY, a public agency organized and existing pursuant to the Community Redevelopq1ent Act of 1969, as amended, ChapteY6~, p~ III Florida Statutes / ' i ( I' / "! I I By: Titl : APPROVED AS TO FORM & LANGUAGE & FOR EXECUTION Redevelo ment Agency General Counsel Date: ~-l-o\.( PORTOFINO ENTITIES: -14- r SANDPOINT FINANCIAL, L TO., a Florida limited' 'ity P . ership By: Sa dpoint. ncial corp., Ci Ftorida corpo :iO~ .' By' ~/~ N e~ ~ Ae:cDeNl , ~.,.. B' T as Kramer, as sole surviving director and shareholder -IS- ST. TROPEZ REAL ESTATE FUND, LTD., a dissolved Florida limited partnership By: St. TROPEZ LIVING, INC. a dissolved . Florida corporation I ' ; /, I. By: I /\ .-r.l . Marg direct r I .' """, By: Thom ramer, as sole surviving sharehol~ MARQU:!A, INC. BY:/~ Name RELATED ENTITIES: TRG-ALASKA I, LTD., a Florida limited partnership By: TRG-Alaska I, In corpor TRG-ALASKA III, LLC., a Florida limited liability company ~~~