98-22718 RESO
RESOLUTION NO.
98-22718
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF
THE CITY OF MIAMI BEACH, FLORIDA APPROVING A
SETTLEMENT AGREEMENT BETWEEN WEST SIDE PARTNERS,
LTD. AND THE CITY OF MIAMI BEACH, ET AL. AND
AUTHORIZING THE EXECUTION OF ANY NECESSARY
DOCUMENTS.
WHEREAS, West Side Partners, Ltd., has, through its attorney, asserted claims against the
City of Miami Beach ("City") and the Miami Beach Redevelopment Agency ("RDA") in an
Emergency Motion styled, West Side Partners. Ltd.. a Florida Limited Partnership. Plaintiff vs. City
of Miami Beach. Florida. a Florida municioal corporation and the Miami Beach Redevelooment
Agency. a Florida municioal agency organized existing oursuant to the Community Development
Act of 1969. Defendants, Case No. 82-24526-CA 30 in the Circuit Court of the Eleventh Judicial
Circuit in and for Dade County, Florida (the "Emergency Motion"); and
WHEREAS, the parties desire to settle the outstanding claims to avoid further costs and
risks of litigation, and the City Attorney and the City Manager recommend that it is in the best
interest of the City to resolve this case; and
WHEREAS, the parties have agreed to the terms and conditions as set forth in the
Settlement Agreement attached hereto as Exhibit "A," and by this reference made a part hereof
as though fully set forth herein; and
WHEREAS, West Side Partners, Ltd. agreed to abate its Emergency Motion, and, upon
certain the fulfillment of certain conditions, to dismiss such Emergency Motion against the City and
the RDA.
NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, as follows:
Section 1:
That the City Commission approves the Settlement Agreement attached
hereto as Exhibit "A".
Section 2:
That the City Commission hereby authorizes all necessary City personnel
to execute the Settlement Agreement documents and consummate the
terms thereof.
PASSED and ADOPTED this 15th day of
April
11Fa
MAYOR
ATTEST:
_~J-'.r~
CITY CLERK
F:\A TTOILEVLIRESO&ORDlSETTLE1.RES
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
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06/05/98 FRI 11:48 F.\X 305 374 1005
THOMSON MUR~O
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~002
THOMSON MURARO RAZOOK 8: HART. P.A.
ATTORNEYS AT LAW
ONE SOUTHEAST THIRD AVENUE:
17TH fLOOR
MIA""'. FLORIDA 33131
I"ARt<ii:R Q. THOMSON
June 5, 1998
Mr. Thomas V. Eagan
Steel Hector & Davis LLP
200 South Biscayne Boulevard
Miami, Florida 33131-2398
Dear Tom:
TELI!:PHO"'~
(:JOSI :JOO-7Z00
TELECOPIER
(30!3) 374-1005
Robert Parcher forwarded to Marla Dumas, who forwarded to
Cathy Colonnese, who forwarded to us, six copies of an amendment to
the Pfoposed Settlement Agreement between the City and the RDA and
West Side Partners, Ltd. asking for signatures. It seems to me Mr.
Parcher has the cart well before the horse. We cannot sign an
amendment to the Settlement Agreement until we have reviewed the
final Settlement Agreement. To have a final Settlement Agreement,
we first must have all exhibits attached in agreed format. We
don't. Next we have to agree with respect to the further revisions
transmitted to you in my May 19,1998 letter. We haven't.
Also, Matt Gorson has advised me that he presented to you the
Parking ~ease Agreement for Yacht Club to which you then asked for
certain changes. I understand Matt made these changes some .time
ago and has received no response.
It's time to tie this up,
Sincerely,
PDT:emr
?~
Vl:A FACSiMILE
cc: Mr. Dennis M. Campbell
Mr. Murray H. Dubbin. (Via Facsimile)
Mr. Matthew B. Gorson (Via Facsimile)
Mr. Brian A. Hart .
Mr. Lawrence A. Levy (Via Facsimile)
Mr. Richard Ovelmen (Via Facsimile)
Mr. Robert Parcher (Via Facsimile)
Mr. Clifford A. Schulman (Via Facsimile)
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Author: RobertParcher at C-H-PO
Date: 6/25/98 10:37 AM
Priority: Normal
Receipt Requested
TO: HarryMavrogenes
TO: MarlaDumas
CC: SergioRodriguez (SergiolRodriguez)
CC: DorothyMerante
CC: MercediaWilliams
BCC: Admin
Subject: Settlement Ageement - West Side Partners, Ltd.
------------------------------------ Message Contents ------------------------------------
CC: Larry Levy
CC: Note to Resolution 98-22718
At the April 15, 1998 Commission meeting, the Mayor and City
commission passed Resolution 98-22718 (R7A) approved the settlement
agreement between West Side Partners Ltd. and the City of Miami Beach.
Pursuant to Larry's request, the settlement agreement has not been
forwarded to West Side Partners Ltd. for signature.
SETTLEMENT AGREEMENT
THIS SETTLEMENT AGREEMENT (the "Agreement") is made and entered into as of the
, S rh day of Ari\;..3-
, 1998, by and among the City of Miami Beach, Florida, a Florida
municipal corporation (the "City"); the Miami Beach Redevelopment Ageney, a Florida public
agency organized and existing pursuant to the Community Redevelopment Act of 1969, Chapter
163, Part III, Florida Statutes, as amended (the "Redevelopment Agency"); and West Side Partners,
Ltd., a Florida limited partnership ("West Side").
INTRODUCTION AND BACKGROUND
THE 1986 SSDI DOCUMENTS
WHEREAS, the properties that are the subject of this Agreement lie in the South Shore area
of Miami Beaeh. The South Shore area, generally the area lying south of Sixth Street, was the
earliest area of Miami Beach to develop. The area suffered economic and physical decline after
World War II. The Redevelopment Agency was created in 1973 to reverse these conditions. The
Redevelopment Agency created a redevelopment plan in 1976 that called for "predominant
clearanee" of buildings in the area and the seleetion of a master developer. The City considered
amending the original redevelopment plan and appointed an ad hoc committee on planned area
development to prepare a new revitalization strategy. In 1984, the City adopted a revised
redevelopment plan entitled "The South Shore Revitalization Strategy." The original 1976 plan, as
the same may have been revised or amended, is hereinafter referred to as the "Redevelopment Plan."
The four major goals of the Redevelopment Plan are: (i) to reestablish the area as an eeonomically
viable and functionally diverse urban neighborhood/resort community; (ii) to involve minimum
MIA9801/22783-2
relocation and condemnation; (iii) to enhance the diversity of form and activity through the use of
established planning and design principles; and (iv) to create a traffic system that adequately serves
both through and local-traffic needs of the area; and
WHEREAS, prior to the adoption of the South Shore Revitalization Strategy, the City
initiated a number of plans to encourage redevelopment in the area, some of which resulted in
controversies and litigations involving both the Miami Beaeh Marina (the "Marina") and the uplands
property adjaeent to the Marina, which is more particularly described in Exhibit A attached hereto
and made a part hereof, and is commonly referred to as "SSDI North," "SSDI South" and the "Core
Parcel" (hereinafter sometimes collectively referred to as the "Uplands Property"). In addition, the
City adopted City Resolution No. 75-14762, under Section 380.06, Florida Statutes, approving a
development order ("Original D.O.") for a Development of Regional Impact ("DRi") for a mixed use
development consisting of the Marina, SSDI North, SSDI South and the Core Parcel; and
WHEREAS, in order to resolve the controversies and the litigation involving the Uplands
Property, the City and the Redevelopment Agency entered into a stipulation and order ("Order") in
South Shore Developers. Inc.. et aI. v. City of Miami Beach. et aI., Case No. 82-24526 (19) (Fla.
11 th Cir. Ct. 1982) which was approved by the 11 th Judicial Circuit in and for Dade County, Florida
(the "Court") on July 8, 1985, and the Court retained jurisdiction over the parties and subject matter
in order to assure compliance with the terms of the Order. Pursuant to the Order, the City and
Redevelopment Agency ratified certain judgments and entered into a series of agreements with South
Shore Developers, Inc. ("SSDI") pertaining to the purchase, ownership and development rights of
SSDI South and SSDI North, and which, in part, dealt with certain duties and obligations relating
to the Marina and Core Pareels, pursuant to the following documents:
MIA9801/22783-2
2
1. A Contract of Sale from the City and Redevelopment Agency, as sellers thereunder,
in favor of SSDI as purchaser thereunder, dated July 24, 1985, and recorded July 31,
1985, in O.R. Book 12590, at Page 2795, as amended by Amendment of Contract of
Sale dated April17, 1986, and recorded Apri130, 1986, in O.R. Book 12873, at Page
2602, all in the Public Records of Dade County, Florida, pursuant to which the City
and Redevelopment Agency agreed to sell to SSDI two (2) tracts of land commonly
referred to as "SSDI South" and "SSDI North" (the "Contract of Sale");
2. A Final Judgment for monetary damages with interest thereon dated September 18,
1984, as recorded in O.R. Book 12276, at Page 2258, and a certified copy of which
was recorded in O.R. Book 16289, at Page 1495, together with a judgment for
attorneys' fees dated September 23, 1986, as recorded in O.R. Book 13033, at Page
1235, and a certified copy ofwhieh was recorded in O.R. Book 16293, at Page 1045,
all in the Public Records of Dade County, Florida (collectively, the "Judgments");
3. A Mortgage from the Redevelopment Agency to SSDI encumbering both SSDI
South and SSDI North as security for the payment of the Final Judgment referred to
in subparagraph 2 above and to ensure the performance by the City of its obligations
under the Order and other documents, which Mortgage was dated July 24, 1985, and
recorded on July 31, 1985, in O.R. Book 12590, at Page 2786, of the Public Records
of Dade County, Florida (the "Mortgage");
4. A Development Agreement dated as of April 17, 1986, and recorded in O.R. Book
12873, at Page 2612, of the Public Records of Dade County, Florida, by and among
the City, the Redevelopment Agency, and SSDI and established in order to define the
MIA9801/22783-2
3
rights and obligations of the parties relating to the development ofSSDI North and
SSDI South (the" 1986 Development Agreement"); and
5. A Parking Agreement dated as of April 17, 1986, and recorded in O.R. Book 12873,
at Page 2731, of the Public Records of Dade County, Florida, by and among the City,
the Redevelopment Agency, and SSDI, as further amended by letter agreement dated
April 17, 1986, pursuant to which the parties established certain rights and
obligations with respect to the construetion, cost, purehase, maintenance and
operation of certain parking spaces to be located on SSDI North and SSDI South (the
"1986 Parking Agreement").
The Order and other documents described in sub-paragraphs (1) through (5) above are
hereinafter sometimes eollectively referred to in this Agreement as the" 1986 SSDI Documents"; and
WHEREAS, all of the rights of SSDI under the 1986 SSDI Doeuments have been sold and
assigned to West Side as evidenced by that certain Assignment and Assumption of Mortgage and
Other Documents dated April 6, 1994, and recorded April7, 1994, in O.R. Book 16313, Page 1077,
of the Publie Records of Dade County, Florida; and
THE MARINA LEASE
WHEREAS, the City, as landlord, and Carner-Mason Associates, Ltd., as Lessee, entered
into a Lease Agreement dated June 24, 1983, as amended by a First Amendment dated October 23,
1991, a Seeond Amendment dated August 11, 1994, and a Third Amendment dated May 27, 1997
(collectively, the "Marina Lease"); and
WHEREAS, all of the rights of the lessee under the Marina Lease are currently held by
Miami Beach Marina Associates, Ltd., a Florida limited partnership (the "Marina Lessee"); and
MIA9801/22783-2
4
WHEREAS, SSDI North and the Core Parcel are still part of the real property leased
pursuant to the Marina Lease; and
THE 1995 DEVELOPMENT AGREEMENT
WHEREAS, West Side, East Coastline Development, Ltd., a Florida limited partnership
("East Coastline"), 404 Investments, Ltd., a Florida limited partnership ("404 Investments"), Azure
Coast Development, Ltd., a Florida limited partnership ("Azure"), Beachwalk Development
Corporation, a Florida corporation ("Beachwalk"), Portofino Real Estate Fund, Ltd., a Florida
limited partnership ("Portofino Real Estate Fund"), St. Tropez Real Estate Fund, Ltd., a Florida
limited partnership ("St. Tropez"), and Sun & Fun, Inc., a Florida corporation ("Sun & Fun"), which
are owned and/or controlled directly or indirectly by the same principal (hereinafter sometimes
collectively referred to as the "Portofino Entities" or individually, as a "Portofino Entity"), the City
and the Redevelopment Agency entered into that certain agreement dated November 7, 1995, which
was recorded in Official Records Book 16987, at Page 1197 of the Public Records of Dade County,
Florida (the" 1995 Development Agreement"), which 1995 Development Agreement was approved
by the Court on the 14th day of November, 1995; and
WHEREAS, the 1995 Development Agreement provided, among other things, for closing
on various parcels in three stages: (i) the first closing resulted in the conveyance of the northern
portion of SSDI South to the Yacht Club at Portofino, Ltd., a Florida limited partnership (the
"YCAP") and the southern portion of SSDI South to West Side, (ii) the second closing resulted in
the conveyance to the City of certain other properties described in the 1995 Development
Agreement, as well as Beachwalk and Sun & Fun acquiring title to the Goodman Terrace Parcel (as
defined below); and (iii) the third and final closing was to involve the release of certain rights and
MIA9801/22783-2
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obligations with respect to SSDI North and the conveyance of additional property to the Portofino
Entities, all predicated upon the timely obtaining of certain final approvals, as described in the 1995
Development Agreement (the" 1995 Final Approvals"); and
WHEREAS, the 1995 Final Approvals were not timely obtained, and on June 20, 1997, West
Side terminated the 1995 Development Agreement, except for those provisions of the 1995
Development Agreement which said agreement expressly provides were to survive; and
THE 1997 LITIGATION
WHEREAS, the City and the Redevelopment Agency on the one hand, and the Portofino
Entities on the other hand, disagreed over certain of their respective responsibilities, obligations and
rights arising out of the surviving provisions of the 1995 Development Agreement; and
WHEREAS, on November 5, 1997, West Side filed with the Court an Emergency Motion
to Enforee Court-Approved November 7, 1995 Development Agreement and for Contempt against
the City and Redevelopment Agency in the 11 th Judicial Circuit in and for Dade County, Florida,
Case No. 82-24526-CA-30, in the case styled West Side Partners. Ltd.. a Florida limited partnership.
Plaintiff. vs. City of Miami Beach. Florida. a Florida municipal cor:poration. and the Miami Beach
Redevelopment Allency. a Florida municipal allency or~anized and existin~ pursuant to the
Community Redevelopment Act of 1969. Defendants, seeking to enforce certain of the surviving
provisions of the 1995 Development Agreement and to request other relief set forth in said motion
(the" 1997 Litigation"); and
WHEREAS, the City, the Redevelopment Agency and West Side seek to reach an
understanding and agreement for the settlement of the 1997 Litigation, conditioned upon receipt of
the Final Approvals (as hereinafter defined), and as hereinafter set forth in this Agreement; and
MIA9801/22783-2
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CURRENT APPLICATIONS
WHEREAS, West Side has currently filed with the City proposed amendments to the City
of Miami Beach Comprehensive Plan (the "Comprehensive Plan") in order to, among other things,
reflect the correct and court-ordered comprehensive plan designation for the parcel of land referred
to as the "Former Park Parcel" from ROS ("Recreational Open Space") to C-PS4 (the
"Comprehensive Plan Amendments") and in order to be consistent with the Former Park Parcel's
present zoning classifications; and
WHEREAS, the existing zoning map for the City erroneously designates the Former Park
Parcel as GU ("Governmental Use") when, in fact, the Former Park Parcel was duly and properly
rezoned as CPS-4 in 1986. As a result, the City needs to modify its zoning map so as to eorrectiy
reflect the zoning classification of the Former Park Parcel to be C-PS4 (the "Zoning Map
Amendment"); and
WHEREAS, West Side and certain of the other Portofino Entities have currently filed with
the City a proposed Portofino Alternative DR! Application for Development Approval (the "ADA")
and is seeking a Development of Regional Impaet Development Order (the "Portofino D.O.") in
order to conform the previously issued DR! Development Order to the Order entered by the Court,
as well as to include other properties within the Original D.O. and to bifurcate the Original D.O. so
that the properties owned by or to be conveyed to the Portofino Entities and the properties to be
retained by the City are covered by separate and distinet development orders; and
WHEREAS, Exhibit E to the 1986 Development Agreement itemized the drawings that make
up the approved Concept Plan (the" 1986 Concept Plan") for the development of SSDI North, SSDI
South and the Core Parcel; and
MIA9801/22783-2
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WHEREAS, West Side has filed/shall file with the City an amendment to the 1986 Concept
Plan (the" I 998 Concept Plan"); and
WHEREAS, West Side has filed proposed amendments to the Redevelopment Plan (the
"Redevelopment Plan Amendments") in order to conform the Redevelopment Plan to the Order
entered by the Court; and
WHEREAS, the approval of the Comprehensive Plan Amendments, the Zoning Map
Amendment, the ADA, the 1998 Concept Plan and the Redevelopment Plan Amendments, in form
acceptable to the City and West Side are hereinafter sometimes collectively referred to as the
"Development Approvals "; and
WHEREAS, the Marina Lessee has consented to and agrees to be bound by those provisions
of this Agreement that affect said party.
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 settle the 1997 Litigation on terms and conditions set forth hereinbelow:
1. Recitations. The foregoing recitations are true and correct and are incorporated herein
by this reference.
2. Development Approvals.
2.1 Condition to Obligation.
2.1.1 The obligations of West Side and/or any and all of the other Portofino
Entities under this Agreement are specifically conditioned upon the City and/or its boards,
departments or agencies (including the Redevelopment Agency) acting in their governmental
capacity to consider certain changes to the Comprehensive Plan, Redevelopment Plan and Zoning
MIA9801/22783-2
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Map, as well as to consider taking all of the other governmental actions as more specifically noted
in the Recitations above. The term "Development Approvals" as used in this Agreement shall mean
all City and/or Redevelopment Agency approvals, consents, permits, amendments, as well as such
other official actions of the state or local governments which are necessary to accomplish and satisfy
the following in their pending form, or as same may be amended with the consent of West Side or
other Portofino Entities:
(i) The approval of the pending Zoning Map Amendment;
(ii) The approval of the pending ADA and issuance of the Portofino D.O.,
with modified local conditions of approval as specified in Paragraph 6 below;
(iii) The approval of the pending Comprehensive Plan Amendments;
(iv) The approval of the pending/to be filed 1998 Concept Plan; and
(v) The approval of the pending "Redevelopment Plan Amendments."
2.1.2 The Development Approvals shall be deemed adopted at such time
as all requisite governmental action has become final, binding and no longer subject to appeal, which
shall herein be referred to as having obtained the "Final Approvals."
2.1.3 In the event that all of the Development Approvals, for any reason,
have not been obtained on or before July 1, 1998 and/or the Final Approvals have not been obtained
by December 1, 1998 or, in the event that any of the required Development Approvals have been
denied by the City or the Redevelopment Agency, then West Side, at its sole option, may elect to
terminate this Agreement by written notice of termination to the City and the Redevelopment
Agency, whereupon all of the provisions and obligations of the parties under this Agreement shall
fully terminate and be null and void except for the approval of the Zoning Map Amendment and the
MIA9801/22783-2
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approval of the Comprehensive Plan Amendments, as described in subparagraphs (i) and (iii) above,
which shall survive the termination of this Agreement, and that all other Development Approvals
which have been adopted shall be treated by the City, the Redevelopment Agency and West Side as
revoked and of no further force and effect. West Side, the City and the Redevelopment Agency
agree to promptly execute and deliver to each other such other doeumentation as may be required
to confirm the foregoing, and the parties shall otherwise be restored to the condition that existed
prior to the date of exeeution of this Agreement, without prejudice to West Side or any other
Portofino Entity to apply to the City and/or the Redevelopment Agency for reconsideration of any
of the Development Approvals which were denied, or which were terminated in connection with the
termination of this Agreement, upon proper written notiee, as if this Agreement never existed, with
the further understanding that the applications for Development Approvals shall not be terminated
in connection with the termination of this Agreement, and shall be treated in the same fashion as if
this Agreement never existed. The provisions of this Paragraph 2.1.3 shall survive the termination
of this Agreement.
2.1.4 If the Final Approvals are obtained prior to the delivery of a written
notice of termination, then there shall be no further right of termination hereunder. In the event this
Agreement is terminated as a result of the failure to obtain, for any reason, the Final Approvals, each
of the parties shall have the right to pursue any and all remedies and/or defenses, as if this
Agreement had never taken plaee.
2.1.5 In the event the City and/or the Redevelopment Agency, as the owner
of SSDI North or any adjacent property, are required to consent to or join in any application in
connection with the Development Approvals, then the City and/or the Redevelopment Agency shall
MIA 9801/22783-2
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consent and join in to such application, but only as the owner of the SSDI North or any adjacent
property, and nothing in this Agreement is intended to limit or restrict the powers and
responsibilities of the City and/or the Redevelopment Agency in acting on applications for the
Redevelopment Plan and/or the Comprehensive Plan changes, or any other application for other of
the Development Approvals.
2.1.6 Notwithstanding the foregoing, the term Development Approvals is
not intended to include building permits, certificates of use or occupancy, plat approvals, or such
other City, Redevelopment Agency or other similar governmental permits or approvals that are
purely ministerial (as opposed to discretionary) in nature.
2.2 Application for Development Approvals. West Side (and/or such other
Porto fino Entity as may be applicable) has previously to the approval and execution of this
Agreement initiated all of the Development Approval applications. The City is processing all
Development Approval applications and both the City and the Redevelopment Agency shall
cooperate with the Portofino Entities (at no cost to the City and/or the Redevelopment Agency,
except for the obligation of the City and/or the Redevelopment Agency to pay for one-half of the
advertising fees associated with said applications) in continuing to timely process all necessary
Development Approvals from county, regional and state agencies (as needed), as well as those filed
with the City.
2.3 Comprehensive Plan. Redevelopment Plan. Zoning Map and Other Approvals.
As provided above, the parties recognize and agree that certain provisions of this Agreement will
require the City and/or its boards, departments or ageneies (including the Redevelopment Agency),
acting in their governmental eapacity, to consider certain changes in the City's Comprehensive Plan,
MIA9801/22783-2
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Redevelopment Plan and/or Zoning Map or other applicable City or Redevelopment Agency 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 state statute and City ordinanees, in the exercise of the City's jurisdiction under the police power,
as well as the requirements of the Order and this Agreement. Nothing in this Agreement is intended
to limit or restriet the powers and responsibilities of the City and/or the Redevelopment Agency in
acting on applications for Redevelopment Plan and Comprehensive Plan ehanges, and applications
for other of the Development Approvals, by virtue ofthe fact that the City and/or the Redevelopment
Agency may have consented to such applications, solely in their capacity as the owner of SSDI
North or as the adjacent property owners. The parties further recognize and agree that these
proeeedings shall be conducted openly, fully, freely and fairly in full accordance with law and with
both procedural and substantive due proeess to be aecorded the applicant and any member of the
public. Nothing contained in this Agreement shall entitle the Portofino Entities to compel the City
or the Redevelopment Agency to take any such actions, save and except the consents to the filing
of such applications for land use approvals, comprehensive plan amendments, redevelopment plan
amendments, eoneept plan amendments or other required approvals, in their capaeity as the owner
of SSDI North, or the owner of adjacent property, as more fully set forth herein, and to timely
process such applications.
2.4 Confirmation of Existin~ Development Rights. This Agreement and/or the
ADA, Comprehensive Plan Amendments, Redevelopment Plan Amendments and the 1998 Concept
Plan do hereby and shall confirm that: (i) SSDI North and SSDI South are duly and properly zoned
C-PS4, with a permissible floor area ratio of 3.5, (ii) that, in addition, 174,388 square feet have been
MIA9801/22783-2
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duly and properly transferred to SSDI North pursuant to Section 6(d) of the 1986 Development
Agreement, less 13,984 square feet subsequently transferred to 404 Washington Avenue, and (iii)
that the parking spaces, and any laundry, lavatory and shower facilities and/or retail facility to be
provided to the City (for use by the Marina Lessee) and located on either SSDI North or SSDI South,
as noted in this Agreement or otherwise, will not be included in the calculation of floor area ratio
for the parcel where said improvements are located or for any other purpose whatsoever. The 1986
Development Agreement remains in full foree and effeet and binding upon the parties hereto, except
as said agreement is amended by: (i) the Development Approvals obtained and not subsequently
terminated in connection with any termination of this Agreement, or (ii) by the terms and provisions
of this Agreement, in the event this Agreement is not terminated.
3. 1997 Litigation. The 1997 Litigation shall be abated 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 motion filed in the 1997 Litigation
shall be withdrawn. Further, within ten (10) days of the date of execution of this Agreement by City
and the Redevelopment Agency, the parties shall submit this Agreement to the Court for approval,
by joint motion and the parties shall cooperate in expediting any hearing to be held on said motion.
The Court shall be the forum and shall continue to reserve jurisdiction for the purposes of:
(i) determining any disputes among the parties under this Agreement, as well as the 1986 SSDI
Documents and the 1995 Development Agreement, and (ii) implementing and enforcing the terms
and conditions of this Agreement. However, nothing contained in this Agreement shall require any
of the parties to waive any of their respective rights to further invoke the Court's continuing
MIA9801/22783-2
13
jurisdiction over the terms of the Order and/or this Agreement (once approved by the Court as a
supplemental Settlement Agreement between the parties). This Agreement shall be construed as
supplemental to and not in substitution of the Order, except when the provisions hereof are in
conflict with the Order.
4. Supplemental Documentation and Deed for SSDI North. Contingent upon obtaining
all of the Final Approvals, the parties hereto agree to accomplish the following within ten (10) days
after the Final Approvals have been obtained:
4.1 Deed for SSDI North. With respect to the closing of title to SSDI North, as
provided in subparagraph 5.3(f) of the 1995 Development Agreement, as well as the escrow
agreement exeeuted in eonnection therewith. the parties shall instruct the escrow agent pursuant to
said escrow agreement to immediately deliver the deed for SSDI North to West Side, which deed
. shall be subjeet to those eertain documents which are required pursuant to this Agreement whieh
affect SSDI North, and those certain permitted exceptions to be provided by Chicago Title Insurance
Company and agreed upon by the parties hereto, and otherwise pursuant to the standard of title for
SSDI North set forth in subparagraph 5.3(c) of the 1995 Development Agreement.
4.2 Documentation.
4.2.1 West Side Closing Documents. West Side shall execute the following
documents and deliver same to the City:
4.2.1.1 Consent to the Elimination of Drystack. West Side shall
execute a release and consent (the "Release and Consent") setting forth: (i) its consent to the
elimination of any requirement by any party to construct a drystack faeility on the Core Parcel, (ii)
terminating any interest West Side may have to require the construction of a drystack on the Core
MIA9801/22783-2
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Parcel, as well as any future right to lease such drystack spaces; provided, however, that without any
obligation by any party at any time to actually build a drystack facility on the Core Pareel, if a
drystack facility is built on the Core Parcel or any other parcel that is directly or indirectly subject
to the Marina Lease by the City, the Redevelopment Agency or the Marina Lessee (its successors
or assigns), then the Marina Lessee agrees to grant to the City or West Side (or another Qualified
Entity), a right of first refusal for the lease by any Qualified Occupant (Qualified Entity and
Qualified Occupant are defined in that certain Marina Slip Agreement entered into by and between
the Tallahassee Building Corporation, a Florida corporation, and the City as of the 10th day of
January, 1996 and recorded in Official Records Book 17077, Page 1260 of the Public Records of
Dade County, Florida) of 50% less one of the dry slips which may ever be constructed on the Core
Parcel or any other parcel that is directly or indirectly subjeet to the Marina Lease; provided,
however, that the number of such dry storage slips may be reduced only as required in order to
insure that the Marina shall at all times maintain its status as a public marina, and (iii) its consent
to the use of the Core Parcel for parking or any other purposes as the City deems appropriate.
4.2.1.2 Termination of Leaseback ofSSDI North. West Side shall
execute and deliver a termination agreement (the "Termination Agreement"), which shall terminate
those provisions of Section 5.3 of the 1995 Development Agreement and any other provisions of the
1995 Development Agreement which pertain to the leasing of SSDI North by the City and/or the
Redevelopment Agency at a fair market "triple net" rental, and West Side shall waive all right to be
paid rent or other charges associated with the lease contemplated in Section 5.3 of the 1995
Development Agreement; provided, further, that the Marina Lessee shall bear the costs and expenses
associated with the Marina Lessee being granted a license to use existing improvements on SSDI
MIA9801/22783-2
15
North, including, but not limited to the cost of operating said improvements, insurance, maintenance,
and real property taxes assessed against said improvements, as shall be more particularly described
in that certain license described in Paragraph 4.2.1.4 below.
4.2.1.3 License to Park on SSDI North and Portofino Parcels.
4.2.1.3.1 West Side, as the owner of SSDI North, and the
southern portion of SSDI South, East Coastline, as the owner of the Alaska Pareel, Azure as the
owner of the Hinson Parcel, Beachwalk and Sun & Fun, as the owners of Goodman Terrace, and
Sandpoint Financial Ltd., a Florida limited partnership ("Sandpoint"), as the owner oflots 5, 6, 7,
the east 26' of8, 9,10,11,12,13,19,20,21,22,23,24,25,26,27 and 28 in Block 51, according
to the Plat of Oeean Beach Third Edition, as recorded in Plat Book 2, Page 81 of the Public Records
of Dade County, Florida, and lots 4, 5, 6, east 22' of 7, 9, 10, 11, 25, 32 and 33 of Bloek 52,
_ aecordip.g to the Plat of Ocean Beach Third Edition, as recorded in Plat Book 2, Page 81, Public
Records of Dade County, Florida, as well as certain other lots in said Blocks 51 and 52 currently
being leased by Sandpoint, shall execute and deliver a license (the "Parking License"), which shall
set forth said parties' obligation to provide to the City certain free surface parking for use by the
Marina Lessee on SSDI North commencing from the time that West Side acquires title to SSDI
North and subsequently on the Portofino Parcels (as defined below). The rights granted in
connection with SSDI North pursuant to the Parking Lieense shall be subjeet to the right of West
Side to conduct an environmental audit and any required environmental remediation on SSDI North,
as well as to construct the Projects (as defined in Paragraph 4.2.2.1.2 below); provided that West
Side gives the written notice (as described in Paragraph 4.2.2.1.2.2 below), all pursuant to the
procedures set forth in the Parking License, and that prior to discontinuing the use of parking spaces
MIA9801/22783-2
16
by the Marina Lessee in order to commence such audit, remediation or construction, West Side, East
Coastline, Azure and/or Sandpoint shall provide to the City land for certain free surface parking
(along with reasonable aeeess thereto for the purpose of parking vehicles that fit in a standard
parking space) for use by the Marina Lessee of sufficient area to make up for the loss of parking
spaces on SSDI North resulting from the commencement of such audit, remediation and/or
construction on: (i) the remaining portion of SSDI North not being used for audit or remediation
purposes, and/or not under construction or being used for staging purposes (as provided in this
Agreement), and (ii) the "Alaska Parcel," "Hinson Parcel, " "Goodman Terrace Pareel," those certain
lots located within Block 51 and Block 52, and the remaining undeveloped portion of SSDI South
(other than the northerly portion currently being utilized by YCAP for construction of the Yacht
Club rental project), as said parcels are described in the 1995 Development Agreement and
graphieally described on Exhibit B, attaehed hereto and made a part hereof (sometimes hereinafter
collectively referred to as the "Portofino Parcels"). In the event that the Alaska Parcel is eneumbered
by any mortgage, then at the time the Parking License is executed and delivered, the owner of sueh
parcel shall be obligated to secure the joinder and consent of its mortgagee subordinating said
mortgagee's interest in the subject parcel to the Parking License. The City shall bear the costs and
expenses associated with any improvements that may be required in order to make any portion of
the Portofino Parcels designated for surface parking useable for said purpose, and West Side, as well
as any other Portofino Entity which owns any of the Porto fino Parcels designated for this purpose,
shall cooperate with the City in connection with accomplishing said improvements, at no expense
to West Side or any other Porto fino Entity.
MIA9801/22783-2
17
4.2.1.3.2 In the event that: (i) West Side has completed any
environmental remediation on SSDI North, or (ii) the first Project on SSDI North is completed and
the appropriate eertificate of occupancy issued, and West Side has not given its written notice in
connection with the commencement of construction for the second Project, then, in both events,
West Side shall clean and restore that portion of SSDI North previously used for staging and/or
environmental remediation, so that said area(s) may again be used for surface parking on SSDI North
until such time as West Side eommences any additional environmental remediation for the second
Project, or the construetion of the second Project.
4.2.1.3.3 The Parking License shall allow for West Side or any
other Porto fino Entity to seek a release for any of the Porto fino Parcels from the obligation to
provide land for surface parking, as set forth in the Parking License and the City shall not
unreasonably withhold its eonsent to such partial release, provided that West Side can reasonably
demonstrate to the City that there is sufficient land on other Portofino Parcels (and reasonable access
to such land for the purpose of parking vehicles that fit in a standard parking space) which shall
remain subject to the obligation to provide land for surface parking pursuant to the Parking License,
to accommodate the existing and future surface parking requirements under this Agreement and the
Parking License; provided, however, that the remaining undeveloped portion of SSDI South (other
than the northerly portion currently being utilized by YCAP for construction of the Yacht Club
rental project) shall be released by the City from the obligation to provide land for surface parking,
as set forth in the Parking License, upon West Side constructing and delivering to the City the
parking spaees required on said parcel, as more particularly described in Paragraph 4.2.2.1.1.2
below.
MIA980 1 /22783-2
18
4.2.1.3.4 The Parking License shall terminate at sueh time as
West Side completes and delivers to the City the parking spaces to be located on SSDI North and
SSDI South, pursuant to this Agreement; provided, however, notwithstanding anything in this
Agreement to the contrary, if the City acquires title to the Alaska Parcel, as provided in Paragraph
7 below, then the Parking License shall terminate as to the Portofino Parcels, and the surface parking
spaces which otherwise would have been located on the Portofino Parcels, as provided above, shall
then be provided solely by the City on the Alaska Parcel.
4.2.1.4 License to Use Existin~ Improvements. West Side shall
execute and deliver a lieense (the "Improvements Lieense"), which shall allow the Marina Lessee
to use the existing improvements located on SSDI North, induding, but not limited to, the use of the
Junior's building located in the northwest quadrant ofSSDI North, in the area where the Baywalk
will be located, as well as bathroom and laundry facilities located on SSDI North (collectively, the
"Existing Improvements") until sueh time as West Side (in its sole discretion) needs the site(s) where
such facility is located for construction and/or staging, and/or environmental audit or remediation
purposes, whereupon, West Side shall provide temporary laundry, lavatory and shower faeilities to
be located on SSDI North or in a barge adjacent to the seawall abutting SSDI North at a location to
be determined by West Side, in its sole discretion, and West Side may relocate said temporary
laundry, lavatory and shower facility from time to time, as West Side may determine, in its sole
discretion; provided, however, that: (i) in connection with providing temporary laundry, lavatory and
shower facilities, West Side shall make reasonable efforts to minimize the disturbance to the
operations of the Marina, provided that such efforts do not materially delay West Side or materially
increase West Side's expenses as a result thereof, (ii) West Side shall provide eopies of all plans for
MIA9801/22783-2
19
temporary facilities in advance to the Marina Lessee and shall review said plans with the Marina
Lessee in a spirit of mutual cooperation so as to minimize disruption of the operation of the Marina
and the construction activities of West Side, provided, however, that notwithstanding anything
herein to the contrary, the temporary lavatory, shower and laundry facilities shall be loeated as close
as reasonably convenient to the Marina without disrupting West Side's construction work (either
within SSDI North or on a barge adjacent to the seawall abutting SSDI North), and there shall be
continuous access to the Baywalk, no interruption of utility service, and continuous aecess to the
temporary facilities, subject only to emergency interruption or other brief access interruption, as may
be required for seawall installation and repair, (iii) any costs or expenses associated with the use of
the Existing Improvements (including, but not limited to, the cost of maintaining said improvements,
the cost of insurance premiums associated with said improvements, as well as any real estate taxes
assessed against said improvements, excluding the land upon which said improvements are
constructed) shall be borne by the Marina Lessee, and (iv) West Side shall not bear any costs or
expenses in connection with the Marina Lessee using the Existing Improvements.
4.2.1.5 Waiver of Riparian Rights. West Side shall execute and
deliver a waiver of riparian rights, without reservation, as to SSDI North (the "Waiver of Riparian
Rights"). The Waiver of Riparian Rights, as to SSDI North and SSDI South, shall: (i) provide that
West Side shall convey to the City (for $10.00 and other good and valuable consideration) the
minimum amount of land necessary (but in no event greater than the Baywalk Easement), contiguous
to the water and sufficient to further confirm or preserve the City's riparian rights in connection with
the Submerged Land Lease with the Trustees of the Internal Improvement Fund, as lessor and the
City, as lessee, (the "Submerged Land Lease") in the event that said conveyance is required by the
MIA9801/22783-2
20
Florida Department of Environmental Protection or any other state governmental body in order to
maintain the Submerged Land Lease, and (ii) authorize the City and/or the Redevelopment Agency
to apply for and obtain, in its own name, (and if applicable, on behalf of West Side, its successors
and assigns in title), any and all permits, licenses or other governmental approvals necessary to keep
the Marina open and operating on the same or substantially similar basis that the Marina is currently
operating, and/or to restore or rebuild any of the improvements in the Marina, as said improvements
exist on the date hereof.
4.2.1.6 Baywalk. West Side shall execute and deliver a non-exclusive
baywalk easement (the "Baywalk Easement"). The execution and delivery of the Baywalk Easement
shall substitute for and satisfy in full the obligation of West Side to execute and deliver a baywalk
easement, as provided in the 1986 Development Agreement and the 1995 Development Agreement.
Further,. the Baywalk Easement will allow for the use of the Baywalk by electric powered-type
vehicles (including electric-powered shuttle vehicles similar to those currently used in Miami Beach
on Lincoln Road to transport people, which will accommodate up to approximately 20 people, and
electric-powered golf earts, and speeifieally excluding any long, enclosed bus or similar motor
vehicles ).
4.2.1.7 Satisfaction of Mort~age and Judgments. West Side agrees
to execute and deliver a satisfaction for the Judgments and the Mortgage (the "Satisfaction").
4.2.1.8 ISO-Foot Easement. West Side shall execute and deliver an
easement which shall encumber Lots 30, 31 and 32, Block 111 "Ocean Beach, Florida Addition No.
3", as recorded in Plat Book 2, at Page 81, of the Public Records of Dade County, Florida (the "150-
Foot Easement Area") (the" ISO-Foot Easement"), and said easement shall provide that: (i) the
MIA9801/22783-2
21
northerly fifty (50') feet of the ISO-Foot Easement Area (the "Northerly 50 Feet"), along with the
southerly ten (10') feet of the northerly sixty (60') feet of the westerly sixty (60') feet of the ISO-Foot
Easement Area (the "Additional 10 Feet"), shall be used for pedestrian and vehicular access,
underground utility purposes and planters and other appropriate landscaping, as shown on the 1998
Concept Plan, by the City, the Redevelopment Ageney, and the Marina Lessee, and all of their
respective guests, invitees, suceessors and assigns, and West Side shall also reserve an easement to
use the Northerly 50 Feet and the Additional 10 Feet for the same purposes; provided, however, that
West Side may also reserve the right to use a portion of the Northerly 50 Feet on a temporary basis
for the following uses: (y) during the period that the Project on the southerly portion of SSDI North
is being constructed, for daytime access for and location of a construction crane, as may be required
to perform construction work on the Project, and for access for other construction purposes, and (z)
during the period following construction of the Project on the southerly portion of SSDI North, for
such daytime access as is reasonable and necessary to perform any maintenance, repair and
reconstruetion work on the Project constructed on the southerly portion of SSDI North, as may be
reasonably necessary, provided, further, that the uses described in the proceeding subparagraphs (y)
and (z) shall not unreasonably interfere with or impede the access to and through the Northerly 50
Feet by the Marina Lessee, and its guests, invitees, successors and assigns, and West Side may not
at any time otherwise use the ISO-Foot Easement Area for construction or construction staging
purposes, and (ii) the southerly one hundred (100') feet of the ISO-Foot Easement Area, less the
Additional 10 Feet, shall be used by the City, the Redevelopment Agency and the Marina Lessee,
in order to: (x) allow for the maintenance of the existing vehicular and pedestrian access to the east
side (front) of the core building located on the Core Parcel, (y) allow for the service and maintenance
MIA9801/22783-2
22
by the Marina Lessee or the City, in the event there is no Marina Lessee, of the existing underground
fuel tanks currently located in the south 100 feet ofthe west 100 feet of the 1 50-Foot Easement Area,
and (z) allow for the relocation of the surface drop-off parking described in the 1986 Development
Agreement, which was otherwise to be located on the northerly portion of SSDI North; provided,
however, that the curb cut currently located on the northerly fifty (50') feet of the ISO-Foot Easement
Area may not be moved by the City, the Redevelopment Agency or the Marina Lessee, its successors
or assigns, without securing the written consent of West Side, which consent will not be withheld
provided that: (i) a limited aceess easement in favor of West Side is exeeuted and delivered to West
Side which will encumber existing roadways currently loeated on the southerly one hundred (100')
feet of the ISO-Foot Easement Area (as said roadways may be relocated, from time to time) so as to
allow West Side its suceessors and assigns, reasonably convenient, direct and continuous aecess for
pedestrian and vehicular traffic through said curb cut. to the northerly fifty (50') foot portion of the
ISO-Foot Easement Area, and (ii) such new curb cut is integrated with any future traffic signalization
and median openings on Alton Road. The ISO-Foot Easement shall also provide that the area
encumbered by said easement will be included in any zoning or planning calculations, including,
without limitation, setbacks, floor area ratio, lot size and/or frontage, as though said easement did
not encumber said area.
4.2.2 The City. the Redevelopment Agency and West Side Documentation.
The parties hereto shall execute and deliver to each other the following documents:
4.2.2.1 New Parking A~reement. The City, the Redevelopment
Agency and West Side shall execute and deliver in recordable form a new parking agreement (the
"New Parking Agreement"), which shall replace the 1986 Parking Agreement in its entirety, and
MIA9801/22783-2
23
shall incorporate the following terms and eonditions, as well as such other terms and conditions as
are consistent with the provisions of this Agreement, to wit:
4.2.2.1.1 Parking Spaces. In connection with the construction
of the buildings on SSDI North and SSDI South, West Side agrees to construct the following parking
spaces in a parking garage and will sell (or lease) said parking spaees to the City for $10,000 per
parking space (said cost per parking space shall increase based upon an adjustment for any increase
in the cost of construetion in South Florida pursuant to a cost of living index to be set forth in the
New Parking Agreement), to wit:
4.2.2.1.1.1 SSDI North. With respect to the future
build-out of SSDI North, West Side shall locate 370 parking spaces on all of SSDI North; provided,
however, that the number of parking spaces may be reduced based upon the needs of the Marina
. Lessee for bathroom and laundry facilities (to be similar in size and scope to those provided on the
northerly portion of SSDI South in the building commonly referred to as the "Yacht Club") and
office and/or retail facilities (similar to those existing as of the date hereof in the Junior's Building,
but in any event not to exeeed 7,500 square feet of floor area, and not to eontain any food or
beverage sales or service) in said parking garages. West Side has agreed to exercise all reasonable
efforts so as to design and construct the buildings on SSDI North so that all of the parking spaces
for the City (to be used by the Marina Lessee) can be located on the ground level; provided,
however, that the City and the Marina Lessee acknowledge and agree that: (i) it may be necessary
for West Side to construct some of the parking spaces for the City for use by the Marina Lessee on
the second floor of the parking garage, and (ii) in aqdition to the parking spaces on the ground level
to be constructed for the City for use by the Marina Lessee, West Side may also construct on the
MIA9801/22783-2
24
ground level appropriate "porte cochere" or other entrances and short-term parking for the subject
Project, together with loading docks, trash removal facilities and other service facilities (collectively,
the "Back of the House Facilities"), as deemed appropriate by West Side, provided, however, that
any Back of the House Facilities construeted on part of the Project (as defined below) located on the
southerly portion ofSSDI North shall be subject to the normal design review process and approval
by the Design Review Board (the "DRB"). In the event that West Side is suecessful in designing
said parking garage to allow for more than 370 parking spaces on SSDI North for the City (to be
used by the Marina Lessee), then the number of parking spaces to be located on the southerly portion
of SSDI South as otherwise provided below shall be reduced by the number of spaces so provided
in excess of 370 on SSDI North. In the event that the parking spaces in the southerly portion of
SSDI South are reduced due to the positioning of the tower on the parking pedestal, as provided in
the 1998 Coneept Plan (i.e., as a result of the "turning" of the building from a purely horizontal
position, in relationship to Alton Road), and said parking spaces are not otherwise made up through
the construction of additional parking spaces on SSDI North, then the Marina Lessee agrees that not
more than 55 parking spaces may be made up through the use of tandem parking by valet on SSDI
North in the space allocated for a minimum of 370 parking spaces in the parking garages to be
constructed on SSDI North; and West Side agrees to make reasonable efforts to design the building
to accommodate up to 55 tandem parking spaces; provided, however, that the design of the building
shall be solely within West Side's discretion, and such design of the building shall not in any way:
(i) interfere with West Side's (including West Side's successors or assigns) access to West Side's
Projects, including, but not limited to, driveup parking and/or the use of the entranceways, loading
MIA980 1 /22783-2
25
docks, trash removal facilities or other service facilities, (ii) delay the construction of the Projects,
or (iii) increase the cost of construction of the building.
4.2.2.1.1.2 SSDI South. With respect to the future
build-out of the southerly portion ofSSDI South, West Side shall seek to locate approximately 115
parking spaces on such southerly portion of SSDI South; provided, however, that the number of
parking spaces at this location may be reduced in eonnection with the following events: (i) in the
event that more than 370 parking spaces are provided on SSDI North, then the parking spaces to be
provided on the southerly portion of SSDI South shall be reduced by one parking space for each
parking space provided on SSDI North in excess of 370 parking spaces, and (ii) the 1998 Concept
Plan will provide for the "turning" of the building to be built on the southerly portion of SSDI South,
which may result in a reduction in the actual number of parking spaees which West Side can
reasonably develop for the City (for use by the Marina Lessee) on the ground level of sueh buildings'
parking garage in which event West Side shall be permitted to reduce the number of parking spaces
otherwise required on the southerly portion of SSDI South to be provided to the City (for use by the
Marina Lessee); provided, further, that in no event shall there be less than 60 parking spaces so
provided by West Side to the City (for use by the Marina Lessee) on the southerly portion of SSDI
South. The City and the Marina Lessee acknowledge and agree that in addition to the parking spaees
on the ground level to be constructed for the City for use by the Marina Lessee, West Side may also
construct on the ground level appropriate "porte cochere" or other entrances and short-term parking
for the subject Project, together with loading docks, trash removal facilities and other service
facilities, as deemed appropriate by West Side.
MIA980 1 /22783-2
26
4.2.2.1.2 Construction Sequencing on SSDI North. In order
to minimize the disruption to the operation of the Marina during the period that West Side is
constructing the buildings on SSDI North as contemplated under the 1998 Concept Plan or
conducting an environmental audit or environmental remediation, West Side agrees as follows:
4.2.2.1.2.1 Projects. Two high rise towers, each with
related amenities (each tower, plus related amenities shall be considered a "Project," while both
towers and related amenities shall be considered the "Projects") may be construeted on SSDI North
on the sites shown on the 1998 Concept Plan, and that each such site shall not be materially changed
as to the size of the land area encompassed thereby, without securing an appropriate amendment to
the 1998 Concept Plan. The Project lying to the north shall be eonsidered the Project being built on
the northerly portion of SSDI North and the Project lying to the south shall be considered the Project
being built on the southerly portion of SSDI North, and neither Project will be constructed at the
same time (i.e., after West Side eleets to commence the construction of either the Project to be built
on the northerly portion of SSDI North or the Project to be built on the southerly portion of SSDI
North, at West Side's option, West Side must complete the construction of the first Project on SSDI
North and deliver to the City (for use by the Marina Lessee) the required parking spaces in
connection with said Projeet prior to commeneing construction on the second Project on SSDI
North), nor will environmental remediation be conducted on SSDI North which will result in the
Marina Lessee being unable to use parking spaces on one site for a Project at the same time that the
other site for a Project is either under construction or environmental remediation (it being the
intention and agreement of the parties hereto that the City not lose parking on all ofSSDI North at
the same time, but only on one site at a time); provided, however, that upon written notice and
MIA980 I/22783-2
27
providing additional parking spaces on the Portofino Parcels, West Side may commence a de
minimis environmental remediation that involves ten (10) or less parking spaces (in the aggregate)
and does not interfere with vehicular access to the subject pareel or in a material fashion disrupt the
operation of the Marina ("Spot Remediation") at the same time that the other site for a project is
either under construction or environmental remediation. Notwithstanding anything in this
Agreement to the contrary, in the event that the City and/or the Redevelopment Agency elects to
construct a parking garage on the Core Parcel, and gives notice of such election to West Side on or
before thirty (30) days after the Final Approvals have been secured and West Side has either secured
a building permit to construct the improvements on the southernly portion of SSDI South, or has the
uneneumbered right (upon payment of required fees) to secure the building permit for the
improvements to be eonstructed on the southerly portion ofSSDI South, then West Side shall not
commence eonstruetion on SSDI North of any of the improvements eontemplated under the 1998
Concept Plan for a period of eighteen (18) months after the Final Approvals have been secured, and
the City and/or the Redevelopment Agency shall pay the real estate taxes in connection with that
portion of SSDI North that West Side could have otherwise commenced construction on, for the
period of time that West Side does not commenee construction, but in any event not to exceed
eighteen (18) months.
4.2.2.1.2.2 Notice. West Side shall provide not less
than 10 days written notice to the City, the Redevelopment Agency and the Marina Lessee of the
date when any environmental audit will be conducted, and not less than 90 days written notice to the
City, the Redevelopment Agency and the Marina Lessee of the date when any required
environmental remediation on SSDI North will commenee, and not less than 90 days written notice
MIA9801/22783-2
28
to the City, the Redevelopment Agency and the Marina Lessee of the date when it shall commence
construction on SSDI North.
4.2.2.1.2.3 Staging. When constructing a Project on
either the northerly portion of SSDI North or the southerly portion of SSDI North, as shown on the
1998 Concept Plan not to stage the construction on more than three lots contiguous to said site
(exclusive of the 150-Foot Easement Area, which parcel may not be used for eonstruetion or
construetion staging purposes, except as otherwise provided in Paragraph 4.2.1.8 above).
4.2.2.1.2.4 Restoration. In the event that the Project
that is first constructed on SSDI North is completed and the appropriate certifieate of occupancy
issued, and West Side has not yet given its written notice in connection with an environmental
remediation for the second Projeet, or in eonneetion with the eommencement of construction for the
second Pr~ject, then West Side shall clean and restore that portion of SSDI North used for staging
in connection with the first Project, so that said area may again be provided to the City (for use by
the Marina Lessee) for surface parking, at no expense to the City, until such time as West Side
commences the environmental remediation or the construction of the second Project, and in the event
that West Side has completed any environmental remediation on SSDI North, and West Side has not
given its written notice in connection with any additional environmental remediation on SSDI North,
or in connection with the commencement of further construction on SSDI North, then West Side
shall clean and restore that portion of SSDI North previously used for environmental remediation,
so that said area may again be provided to the City (for use by the Marina Lessee) for surface
parking, at no expense to the City (except for any expenses associated with the environmental
remediation of SSDI North, which the City has agreed to share with West Side, pursuant to the
MIA9801/22783-2
29
provisions of the 1995 Development Agreement), until such time as West Side commences any
environmental remediation or construction on SSDI North.
4.2.2.1.3 Completion of Parking Requirements. West Side's
obligations to provide parking to the City on SSDI North and SSDI South shall be satisfied in
connection with the eompletion and delivery of the following parking: (i) the parking spaces
described in Paragraph 4.2.2.1 above, (ii) the 115 parking spaces eonstructed/to be constructed in
the Yacht Club building, (iii) the drop-off parking on SSDI South required under the 1986
Development Agreement as amended by the 1995 Parking Agreement, and (iv) the drop-off parking
on SSDI North relocated from the north end of SSDI North to the ISO-Foot Easement Area.
4.2.2.1.4 Income. Any income generated from the leasing of
said parking spaces to the Marina Lessee shall belong to the City.
4.2.2.1.5 Alternate Curb Cut. In the event that the eonstruction
on the southerly portion of SSDI North and/or the construction staging associated with said
construction results in the closing of the current access from Alton Road to SSDI North whieh
straddles the lot line between Lots 40 and 41, and is westerly of 4th Street (the "Current Curb Cut"),
then until said construction is completed, and said staging area is restored by West Side for parking
purposes so that the Current Curb Cut is again useable, the City will provide for temporary access
from Alton Road to SSDI North in a location north of said construction staging area in order to allow
for access to the remaining free surface parking on the northern portion of SSDI North (the
"Alternate Curb Cut").
4.2.2.2 Diamond C Parcel. The City shall execute and deliver its
release of the Aceess Easement (the "Access Easement") recorded in Official Records Book 13368,
MIA9801/22783-2
30
Page 2769 of the Public Records of Dade County, Florida, and the Utility Easement (the "Utility
Easement") recorded in Official Reeords Book 13368, Page 2774, Public Records of Dade County,
Florida (the "Release of Easements"). West Side shall execute and deliver: (i) a license which shall
allow the City to use the land encumbered by the Access Easement and the Utility Easement for the
same purposes set forth in said easements for a period of one (1) year from the date the Final
Approvals have been secured (the "Access and Utility License"), and (ii) the easement for the
dedieation of the extension of the public right-of-way of Washington Avenue to serve South Pointe
Park (the "Dedieation Easement"), which will provide that said easement area will be included in
any zoning or planning calculations, including, without limitations, setbacks, floor area ratio, lot size
and/or frontage, as though the Dedication Easement did not encumber said parcel. Further, the City
shall execute and deliver a removal agreement (the "Removal Agreement"), which shall provide that
at such t.ime as the City constructs the improvements which are to be part of the Washington Avenue
Extension, the City, at its expense, shall relocate the utilities installed pursuant to the above-
deseribed utility easement; provided, however, that the City agrees to construct said improvements
and reloeate said utilities on or before one year after the Final Approvals have been secured.
4.2.2.3 Pedestrian Easement on SSDI South: Drop-Off Parkinll and
Access Easement. The City shall execute and deliver a release and termination of those certain
easements described in Exhibit B and Exhibit C of that certain Grant of Access Easement recorded
in Official Records Book 17077, Page 1245, Public Records of Dade County, Florida (the "Release
of Easement"), and West Side shall execute and deliver an easement (the "SSDI South Drop-Off
Parking and Access Easement"), which shall encumber a portion of the southerly portion of SSDI
South and shall provide for the required drop-off parking on the southerly portion of SSDI South,
MIA980 I /22783-2
31
as well as for a pedestrian and emergency vehicle access easement to the Baywalk not less than forty
(40) feet wide. Further, the SSDI South Drop-Off Parking and Access Easement shall provide that
said easement area will be included in any zoning or planning calculations, including, without
limitation, setbacks, floor area ratio, lot size and/or frontage, as though the SSDI South Drop-Off
Parking and Access Easement did not encumber said parcel, and shall be in lieu of the southern
access easement for SSDI South as provided for under the 1986 Development Agreement.
4.2.3 The City Documentation. The City shall execute the following
documents and deliver same to West Side:
4.2.3.1 Staging Area on Alton Road. To offset West Side's loss of the
ISO-Foot Easement Area as a staging area, the City will exeeute and deliver a license (the "Staging
Area License"), which will provide that, within forty-five (45) days of West Side giving notice to
the City of the date that construction will commence, West Side may close off the contiguous
sidewalk and the western lane of Alton Road contiguous to the construction site described in said
notice (either the southerly portion of SSDI North or the northerly portion of SSDI North) so that
West Side may use same as a staging area for said construction; provided, however, that the expense
of removing the median strip on Alton Road and paving same in order to create a new lane to replace
the westernmost lane to be used as a staging area, as well as the expense of restoring the landscaped
median strip on Alton Road and related paving (currently estimated to cost $150,000) shall be borne
one-third by the City, one-third by the Marina Lessee and one-third by West Side. The above-
referenced restoration shall be in compliance with applicable laws, rules and regulations, as well as
with the South Pointe Streetscape. Prior to the issuance of the certificate of occupancy for the
Project which used said staging area in connection with its eonstruetion, West Side shall either: (i)
MIA9801/22783-2
32
pay to the City its fair share of the costs of such restoration or if said costs are not known, as
reasonably estimated by the City and West Side, provided that said estimated costs shall be
readjusted and any appropriate payment or refund promptly made at such time as the aetual costs of
such restoration are known, or (ii) complete said restoration.
4.2.3.2 SSDI North Pump Station. The City will execute and deliver
an agreement (the "Pump Station Removal Agreement") which will provide that within one (1) year
of the date of the Final Approvals having been secured, the City shall remove from SSDI North, at
its expense, the pump station currently located on SSDI North.
5. 1998 Concept Plan. West Side has filed/shall file the 1998 Concept Plan with the
City, for its review and approval, which plan provides/may provide for, among other things, one
tower, plus related amenities on the southern portion of SSDI South. In connection with its review
of the 1998 Concept Plan, the City will seek the advisory recommendations and comments of the
ORB and the Planning Department, using the design review criteria in effect at the time the 1998
Coneept Plan was filed with the City. In connection with pulling building permits, West Side will
have to submit the building plans for review and approval by the ORB using the same criteria as set
forth above. Onee the 1998 Concept Plan has been approved by the City (the "Approved Concept
Plan"), then all subsequent action taken by the City in connection with any other requested
development approvals regarding SSDI North and SSOI South must be consistent with the Approved
Concept Plan.
6. Local Conditions. In connection with the ADA application, the City and West Side
have agreed to those certain local conditions more particularly described in Exhibit C attached hereto
and made a part hereof. Both parties recognize, however, that final approval of the ADA and
MIA9801/22783-2
33
Porto fino D.O. is subject to consideration of said applications by the City acting in its governmental
capacity. While West Side and/or the other Portofino Entities recognize and agree that the City has
the right to deny or approve the ADA with or without these or other conditions, the City hereby
agrees that West Side and/or the other Portofino Entities reserve any and all rights to seek appellate
or any other available review or legal remedies in the event that the City chooses not to approve the
ADA with the local conditions as noted above, unless the amendment to said local conditions has
been approved by West Side, in writing. In addition, any approval of the ADA and the adoption of
an Portofino D.O. with local conditions other than as noted above, shall not constitute a Final
Approval under the terms of this Agreement, and West Side and/or the Portofino Entities shall have
the unilateral right to declare this Agreement null and void in the event of approval of the ADA with
any conditions other than those specified in Exhibit C attaehed hereto and made a part hereof, or
. otherwise agreed to in writing by West Side (in West Side's sole discretion) and, in the event that
the City chooses to approve the ADA and issue the Porto fino D.O. with amended local conditions,
as approved in writing by West Side, then said local conditions shall be considered to have been
ineorporated herein, by reference, as if they were fully set forth herein and may be enforeed pursuant
to the terms of the Order and this Agreement.
7. Alaska Parcel. East Coastline has advised the City that it will sell the Alaska Parcel
(as said parcel is defined in the 1995 Development Agreement) to the City and/or the Redevelopment
Agency for $7,200,000.00 (subject to the allocation of customary closing costs, as well as such
adjustments as would be appropriate based upon normal and customary prorations to be made at the
time of closing), provided that: (i) within 90 days of the approval of this Agreement by all parties,
the City Commission votes in favor of acquiring the Alaska Parcel, (ii) East Coastline shall not be
MIA9801/22783-2
34
obligated to sell the Alaska Parcel to the City or the Redevelopment Agency, unless the Final
Approvals have been granted prior to any earlier termination of this Agreement, and (iii) a purchase
and sale agreement is entered into by the City within ten (10) days following the issuance of the
Final Approvals, and the City or the Redevelopment Agency escrows a deposit with counsel for East
Coastline in the amount of$250,000.00. The purchase and sale agreement shall provide for a closing
on or before 90 days of the date of said purchase and sale agreement; provided, further, that the City
may extend said closing date for an additional 90 days provided that the stated purchase priee is
increased to refleet East Coastline's additional carrying charges (i.&., taxes, maintenance and
insurance) from the date of the purchase and sale agreement. In any event, the parties hereto agree
that neither party is stipulating that the proposed purchase price is reflective of or equal to the fair
market value of said parcel, and that the proposed purchase price cannot be used by any party hereto
against any other party hereto as an admission against interest in any subsequent proceeding, and that
the provisions of this paragraph may not be used against any party at any time in connection with
any determination of the fair market value of said parcel. In the event the City does acquire the
Alaska Parcel and forms a special taxing distriet to pay for the acquisition of said pareel, then all
parcels that benefit from such acquisition, including the properties currently owned by the Portofino
Entities, shall be included in such special taxing district, and such benefit shall be established in
accordance with Chapter 170, Florida Statutes, and the applicable portions of the Home Rule
Charter.
8. Miscellaneous Provisions.
8.1 No Permit. This Agreement is not and shall not be construed as a
development permit, development approval, development order or authorization to commenee
MIA9801/22783-2
35
development, nor shall it relieve the Portofino Entities of the obligations to obtain necessary
amendments to the Redevelopment Plan and the Comprehensive Plan, and any other development
approvals that are required under applicable law and under and pursuant to the terms of this
Agreement.
8.2 Good Faith: Further Assurances. The parties to this Agreement have
negotiated in good faith. It is the intent and agreement of the parties that they shall cooperate with
each other in good faith to effeetuate the purposes and intent of, and to 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 neeessary to effectuate the provisions of this Agreement; provided that the foregoing
shall in no way be deemed to inhibit, restriet or require the exercise of the City's police power or
.aetions 9fthe City when acting in a quasi-judieial capacity.
8.3 Omissions. The parties hereto recognize and agree that the failure of this
Agreement to address a particular permit, condition, term, or restrietion shall not relieve the
Porto fino Entities of the necessity of complying with the law governing said permitting
requirements, conditions, term, or restriction notwithstanding any such omission. In such regard,
unless directly addressed herein, nothing herein shall be construed or interpreted to limit West Side's
or Porto fino Entities' rights and defenses to seek any and all remedies that may be available to it
under the constitution of Florida and the United States, the laws of Florida and the United States
and/or the ordinances of any and all governmental ageneies with jurisdiction.
8.4 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
MIA9801/22783-2
36
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
or Redevelopment
Agency at:
1700 Convention Center Drive
Miami Beach, Florida 33139
Attn: City Manager
With copies to:
1700 Convention Center Drive
Miami Beach, Florida 33139
Attn: City Attorney
and
Steel Hector & Davis LLP
4000 First Union Financial Center
Miami, FL 33131
Attn: Thomas V. Eagan, P.A.
and in connection with notice of the date West
Side shall commence construction or
environmental remediation on any portion of
SSDI North
Miami Beach Marina Associates, Ltd.
Miami Beach Marina
300 Alton Road
Miami Beach, FL 33139
Attn: Robert W. Christoph
with copy to: Carter McDowell, Esquire
Eckert Seamans Cherin & Mellott
Barnett Tower, 18th Floor
701 Briekell Avenue
Miami, Florida 33131
If to the Porto fino
Entities or anyone
or more of them:
One South Pointe Drive
Miami Beach, Florida 33 139
Attn: Heinrich Hanau
MIA980 1 /22783-2
37
With a copy to:
Greenberg, Traurig, Hoffman,
Lipoff, Rosen & Quentel, P.A.
1221 Brickell Avenue
Miami, Florida 33131
Attn: Matthew B. Gorson, Esq.
Notices personally delivered or sent by overnight courier shall be deemed given on the date
of delivery and notices mailed in accordance with the foregoing shall be deemed given three (3) days
after deposit in the U.S. mails.
8.5 Construetion.
8.5.1 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.
8.5.2 In eonstruing this Agreement, the use of any gender shall include every
other and all genders, and captions and section and paragraph headings shall be disregarded.
8.5.3 All of the exhibits attached to this Agreement are incorporated in, and
made a part of, this Agreement.
8.6 Time of Essence. Time shall be of the essence for each and every provision
hereof.
8.7 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.
MIA9801/22783-2
38
8.8 Successors and Assign: Third Party Beneficiary. The benefits, rights, duties
and obligations given to West Side and/or the other Portofino Entities under this Agreement shall
inure to the benefit of and bind their successors in title and assigns. The parties acknowledge and
agree that exeept only for the foregoing successors and assigns, there are no third party beneficiaries
under this Agreement.
8.9 Approval by the City and the Redevelopment Agency. The parties hereto
understand and agree that this Agreement will not be binding on the City or the Redevelopment
Agency until such time as the City Commission of the City of Miami Beach and the Chairman and
Members of the Redevelopment Agency have approved same.
9. Amendment to Marina Lease. The City and the Marina Lessee have agreed to prepare
an amendment to the Marina Lease (the "Marina Lease Amendment") to incorporate the parking and
related arrangements for SSDI North and SSDI South described in Paragraph 4.2.2.1 above. The
Marina Lease Amendment shall further provide that: (i) the Marina Lessee shall: (x) provide to the
City within ten (10) days of receipt of each written notice from West Side of West Side's date of
commencement of construction or date of commencement of environmental remediation, an
accounting as to the current cost and expense of valet parking incurred in connection with the core
building on the Core Parcel, (y) maintain the underground fuel tanks located on the ISO-Foot
Easement Area in accordance with all federal, state and local laws and regulations governing same,
and shall indemnify, defend and hold West Side, the City and the Redevelopment Agency and their
successors and assigns in title harmless regarding any environmental matters arising out of the
construction, installation, use and/or maintenance of said underground fuel tanks including, without
limitation, any and all claims of third parties, claims and/or orders of governmental entities with
MIA9801/22783-2
39
jurisdiction, on-site or off-site remedial actions, damages, liabilities, costs of compliance with any
court or administrative orders or injunctions, any and all costs or damages of any kind as a result of
the failure or inability of said fuel tanks to be in operation either temporarily or permanently, any
costs of relocation that may be required and all other costs and expenses arising in relation to any
of the foregoing, including, without limitation, attorneys fees and court costs at trial and all appellate
levels, and notwithstanding the foregoing, nothing contained herein shall be construed or operate to
require the Marina Lessee to indemnify any Porto fino Entity and/or their officers, directors,
employees, consultants, agents or invitees, as well as their sueeessors and assigns in title to SSDI
North and SSDI South and/or their offieers, directors, employees, consultants, agents or invitees,
hereinafter collectively referred to as "PES A" for loss or damage to the extent occasioned by any
aet or omission of PESA or any member of PESA, or for any loss or damage occasioned solely from
any act or omission of PESA, and (z) promptly replace, remove and relocate the existing
underground tanks if such replacement, removal and/or relocation is a requirement by any applicable
governmental entity with jurisdiction or by any applicable law, rule or regulation to the obtaining
of a building permit or certificate of occupancy with respect to any future construction by West Side
on the balance of the SSDI North (i.e., if there is any requirement that the Project to be constructed
on the southerly portion of SSDI North cannot be built down to the northerly boundary line of the
I 50-Foot Easement Area, then it shall be the responsibility of the Marina Lessee to relocate and/or
remove the existing underground tanks as necessary to allow such construction to be legal, valid and
promptly commenced), and (ii) the City shall: (w) pay any increase in the amount of the operational
cost and expense of valet parking resulting from valet parking on the Portofino Parcels or on the
Alaska Parcel, if the City acquires said parcel, as provided in Paragraph 7 above, up to the amount
MIA9801/22783-2
40
of $72,000.00 per year, as said amount may be adjusted for cost of living pursuant to a cost of living
index to be provided for in the Marina Lease Amendment, during the period that the first Project and
the second Project on SSDI North are being constructed, or any environmental remediation is taking
place, (x) to the fullest extent allowed by law, indemnify, defend and hold West Side and its
successors and assigns in title harmless regarding any environmental matters arising out of the
construetion, installation, use and/or maintenanee of said underground fuel tanks including, without
limitation, any and all claims of third parties, claims and/or orders of governmental entities with
jurisdiction, on-site or off-site remedial actions, damages, liabilities, costs of compliance with any
court or administrative orders or injunctions, any costs of relocation that may be required and all
other costs and expenses arising in relation to any of the foregoing (including, without limitation,
attorneys fees and court costs at trial and all appellate levels), (y) to the extent the City has standing,
to fully and promptly enforce against the Marina Lessee the Marina Lessee's indemnity and hold
harmless in favor ofthe City and the Redevelopment Agency, as well as other obligations as set forth
in subparagraphs (i)(y) and (i)(z) above, and (z) in the event that the Marina Lease expires, or is
caneeled or terminated, and a new lease for the Marina is not immediately entered into, then, for the
period of time that there is no Marina Lease or a new lease for the Marina, the City and/or the
Redevelopment Agency shall (1) maintain the underground fuel tanks located on the 150-Foot
Easement Area in accordance with all federal, state and local laws and regulations governing same,
and (2) promptly replaee, remove and reloeate the existing underground tanks if sueh replacement,
removal and/or relocation is a requirement by any applicable governmental entity with jurisdiction
or by any applicable law, rule or regulation to the obtaining of a building permit or certificate of
occupaney with respect to any future construction by West Side on the balance of the SSDI North
MIA9801/22783-2
41
(i.e., if there is any requirement that the Project to be constructed on the southerly portion of SSDI
North cannot be built down to the northerly boundary line of the ISO-Foot Easement Area, then, for
said period of time, it shall be the responsibility of the City to relocate and/or remove the existing
underground tanks as necessary to allow such construetion to be legal, valid and promptly
commenced).
10. New Marina Lease. In the event that the Marina Lease is canceled or terminated and
a new lease for the Marina is entered into with the City and/or the Redevelopment Ageney, as lessor,
then the City and the Redevelopment Agency agree as a condition to entering into such new marina
lease, that the new marina lessee shall be obligated to maintain the underground fuel tanks located
on the ISO-Foot Easement Area and to indemnify, defend and hold West Side and its successors and
assigns in title and the City and the Redevelopment Agency harmless regarding any environmental
matter arising out of the construction, installation, use and/or maintenance of said underground fuel
tanks, as provided in Paragraph 9(i)(y) above, as well as to promptly replace, remove and relocate
the existing underground tanks if such replacement, removal and/or relocation is a requirement by
any applicable governmental entity with jurisdiction or by any applicable law, rule or regulation, as
provided in Paragraph 9(i)(z) above.
EXECUTED as of the date first above written in several counterparts, each of which
MIA9801/22783-2
42
shall be deemed an original, but all constituting only one agreement.
Signed, sealed and delivered
in the presence of:
CITY OF MIAMI BEACH, FLORIDA,
a municipal co oration
tv! It-Vor2..
",
\.Jl 'j /
r{ (; :' !J A
~~alYe: ~J / 1<:"'1 d-iA U /)1
.' 0 \J~(,~
Na e: - \\" ') \ u E:.~
By:
/1 / d
l.+:t.( . h"Ci.i"~
Nain~' ,.J ll:'.t !?';,{,/i(-l,rvI S
~~g;AAN
THE MIAMI BEACH REDEVELOPMENT
AGENCY, a public agency organized and
existing pursuant to the Community
Redevelopment Act of 1969, as amended,
Chapter 163, art II Florida Statutes
~
By:
Name:
Title: Chairman
Attest:~J- fit~
Name: B~T Mfll-ll-L
Title: C. (T~ <!.- Lb-~
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
~~<C
City Attor
/!) !l6h/
Do1e
/ ~/A;/f%
Dote
MIA9801/22783-2
43
MlA9801/22783-2
WEST SIDE PARTNERS, LTD., a Florida
limited partnership
By: WEST/~!D. E PARTNERS, INC., a
Florida corp~on, Ge ner
By:
Name:
Title:
44
T I< ({ 1}.;Vj bIZ
trf. CSl dtf1v r
JOINDER
The undersigned MIAMI BEACH MARINA ASSOCIATES, LTD., a Florida limited
partnership, as the Marina Lessee, hereby joins in the foregoing Agreement for purposes of
confirming its agreement to the provisions of Paragraph 4 and Paragraph 9 thereof. to negotiate and
execute such documentation as is required of the Marina Lessee pursuant to the provisions of
Paragraph 9, and otherwise to perform such acts as is reasonable and necessary to carry out the intent
and purpose of the provisions of Paragraph 9. Further, the Marina Lessee acknowledges and
confirms its obligation to take the actions required (after receiving notice to terminate the Marina
Lease as to SSDI North from the Redevelopment Agency, as provided in the Marina Lease) in order
to exeeute a termination of the Marina Lease as to SSDI North, secure a partial release of the
leasehold mortgage in connection with said termination, give appropriate notice to any subtenants
on SSDI North and otherwise to cooperate in resolving any title issues regarding SSDI North, in
accordance with the provisions of the 1995 Development Agreement.
MIAMI BEACH MARINA ASSOCIATES, LTD., a
Florida limited partnership
By: SoBe Marine, Inc., a Florida eorporation,
general partner
B
MIA9801/22783-2
45
JOINDER
The undersigned, as the owner of the Alaska Parcel, hereby joins in and consents to the
provisions of the Settlement Agreement which effect the Alaska Parcel. and agrees to enter into the
Parking License referenced in the Settlement Agreement.
~~)uz
0t-';f~
MIA9801/22783-2
EAST COASTLINE DEVELOPMENT, LTD., a
Florida limited partnership
By: EASI COASTLINE,
corporation, ~l Part~/
/
/
I
Florida
INC., a
By:
PI<.. t S I J &/v r
46
JOINDER
The undersigned, as the owner of the Hinson Parcel, hereby joins in and consents to the
provisions of the Settlement Agreement which effect the Hinson Parcel, and agrees to enter into the
Parking License refereneed in the Settlement Agreement.
MIA9801/22783-2
AZURE COAST DEVELOPMENT, LTD., a Florida
limited partnership
By: AZURE C~ST, INC., ~ROrida eorporation,
General Partner /
By:
47
JOINDER
The undersigned, as the owner and/or lessee of the those certain lots located in Block 51 and
Block 52 (the "Lots"), hereby joins in and consents to the provisions of the Settlement Agreement
which effect the Lots, and agrees to enter into the Parking License referenced in the Settlement
Agreement.
a Florida limited
MIA9801/22783-2
48
JOINDER
The undersigned HELLER FINANCIAL, INe., a.=De. lal-Jc(. '{ C corporation, as the
holder of the leasehold mortgage encumbering the Marina Lease, and recorded in Offieial Reeords
Book 17673, Page 2862 of the Public Records of Dade County, Florida hereby joins in and consents
to the foregoing Agreement for purposes of confirming said agreement to the provisions of
Paragraph 4 and Paragraph 9, and to provide a partial release of its leasehold mortgage in connection
with the termination of the Marina Lease as to SSDI North.
HELLER FINANCIAL, INC., a Uz \CCvVu. rZ--
corporation
By:
Name:
Title:
M1A9801/22783-2
49
EXHIBIT A
EXHIBIT B
EXHIBIT C
MIA9801/22783-3
INVENTORY OF EXHIBITS
Legal Descriptions For SSDI North, SSDI South And The Core Parcel
Graphic Depictions of the Portofino Parcels
Local Conditions
EXHIBIT A
Legal Descriptions For SSDI North, SSDI South And The Core Parcel
SSDI South
Lots 1 through 14, inclusive, in Block 111, of OCEAN BEACH FLORIDA ADDITION NO.3,
according to the Plat thereof, as recorded in Plat Book 2, at Page 81, in the Publie Records of
Dade County, Florida, together with the accretions thereto.
ALSO:
That Part of Biscayne Street (also known as Biscayne Avenue) as shown on said Plat of OCEAN
BEACH FLORIDA ADDITION NO.3, lying westerly of the southerly projection of the west
Right of Way line of Jefferson Avenue as shown on said Plat and being bounded on the west by
Biscayne Bay, together with the accretions thereto.
ALSO:
All that part of the North 132.0' of Section 10, Township 54 South, Range 42 East, described as:
Beginning at a point on the Northern boundary of said Section 10, which is intersected by the
Easterly boundary of Jefferson Avenue extended Southerly across Biscayne Street as a point or
place of beginning: thence Southerly continuing the Easterly boundary of Jefferson A venue
_extended for a distance of 132.0' to a point; thence Westerly 208.1' more or less along a line
parallel to and 132.0' Southerly from the Northern line of said Section 10 to Biscayne Bay:
thence Northwesterly meandering the Bay to the intersection of the Northern line of Section 10;
thence Easterly along the Northern line of Section 10, 285.0' more or less to the point or plaee of
beginning (the Northerly boundary of said Section 10 being common with the Southerly
boundary of Biscayne Street); Also described as: All of that part of the North 132.0' of Section
10 Township 54 South, Range 42 East, known as Tract A or the Smith Company Bay Front Tract
more particularly described as follows to wit: Bounded on the North by the Northern line of said
Section 10: bounded on the East by the East line of Jefferson A venue extended: bounded on the
South by a line parallel to and distant 132.0' South of the Northern line of said Section 10, and
bounded on the West by Biscayne Bay, together with the aceretions thereto.
MIA9801/22783-2
SSDI North
Lots 30 through 42 inclusive, in Block 111, of OCEAN BEACH FLORIDA ADDITION NO.3,
according to the Plat thereof, recorded in Plat Book 2, at Page 81, of the Public Records of Dade
County, Florida, together with the accretions thereto.
ALSO:
Lots 43, 44, 45, 46, 47, 48A, 49B and 50C of DADE COUNTY PROPERTY, according to the
Plat thereof, recorded in Plat Book 14, at Page 70, of the Public Records of Dade County,
Florida, together with the accretions thereto.
MIA9801/22783-2
2
Core Parcel
All of Lots 22 through 29, inclusive, and Lot 21, less the Southerly 40 feet thereof in Block 111,
of OCEAN BEACH FLORIDA ADDITION NO.3, according to the Plat thereof as recorded in
Plat Book 2, Page 81, of the Public Records of Dade County, Florida; together with a 40-foot
right-of-way on the Bay side of the Hope and Rebecca Tower property, (being Lots 15 through
20 and the Southerly 40 feet of Lot 21 in Bloek 111, of OCEAN BEACH FLORIDA
ADDITION NO.3);
TOGETHER WITH:
The West 2 feet of Lots 15 through 20, inclusive, and the Westerly
40 feet of the Southerly 40 feet of Lot 21, in Block 111, of
OCEAN BEACH FLORIDA ADDITION NO.3, according to the
Plat thereof as reeorded in Plat Book 2, Page 81, of the Public
Records of Dade County, Florida.
TOGETHER WITH:
An easement over or under and upon the Westerly 100 feet of Lots
30 and 31, all in Block 111, OCEAN BEACH FLORIDA
ADDITION NO.3, as recorded in Plat Book 2, Page 81, of the
Public Records of Dade County, Florida.
MIA980I/22783-2
3
EXHIBIT B
Graphic Depictions of the Portofino Parcels
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EXHIBIT C
LOCAL CONDITIONS
B. CONDITIONS TO MITIGATE LOCAL IMP ACTS
THE APPLICANT, ITS SUCCESSORS, AND/OR ASSIGNS, JOINTLY OR
SEVERALL Y, SHALL:
1. Local traffic conditions: Prior to the issuance of building pennits for
development which will generate more than 1515 new net external P.M. peak
hour trips. either, at its option, eonstruct (with reasonable City approval),
cause to be constructed or contribute an agreed amount of funds to the City
to construct the following traffic improvements. subject to all applicable
governmental approvals:
(a) striping and installation of westbound left turn lane for 4 or 5 vehicle
capacity on Meridian Avenue (south) as it app.roaches 5th Street,
without any widening of the existing right-of-way;
(b) installation of westbound left turn signal on Meridian A venue (south
as it intersects with 5th Street);
(c) installation of a westbound left turn lane (striping) for 4 or 5 vehicle
capacity on Michigan Avenue (south) as it intersects with 5th Street,
without any widening of the existing right-of-way;
(d) installation of westbound left turn signal on Washington A venue
(south) as it intersects with 5th Street;
( e) installation of ~ westbound left turn lane (striping) for 4 or 5 vehicle
capacity on Collins Avenue (south) as it approaches 5th Street,
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without any widening of the existing right-of-way;
(f) installation of westbound left turn signal on Collins A venue (south)
as it intersects with 5th Street;
(g) installation of westbound left turn lane (striping) for 3 or 4 vehicles
capacity on Jefferson Avenue (south) as it approaches 5th Street,
without any widening of the existing right-of-way;
(h) reset signalization phasing at the major intersections along 5th Street,
to give more time for pedestrian/bicyc1e crossing movements, as may
be permitted by the City of Miami Beach Publie Works Department
and the FDOT: (signalization should be adjusted for weekend traffic
conditions,
(i) installation of No "U-Turns Permitted" signage along Biscayne Street
(ak.aSouth Pointe Drive)/Alton Rd., as it defin~s the boundaries of
the development site.
The determination of new net external trips shall be conducted pursuant to the trip generation
calculations set forth in Exhibit "G," hereto, [Tables 21.8-1 through 21.8-3 of the Portofino
DRl Alternative ADA.]
2. Police and Fire: Pay its fair share costs of additional police and fire capital
equipment that are required as a result of the Portofino Development Order,
which costs shall include additional police vehicles for the City in an amount
not to exceed two hundred forty thousand ($240.000) dollars, and one fire
rescue vehicle in an amount not to exceed ninety five thousand ($95,000)
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dollars. These fair share contributions shall be paid in accordance with
Paragraph 12 below.
3. Storm Drainage: Treat and dispose of all storm drainage on-site and without
use of the City's stormwater colleetion system. In addition, at sueh time as
Applieant is required to design, construct and build the traffic improvements
at the southwest comer intersection of MacArthur Causeway and Alton Road,
pursuant to the terms of this Development Order, Applieant shall be
responsible for the eosts of replacement or modified storm water drainage
facilities that are required to maintain the drainage of the parking or other
facilities as they exist on the date of the proposed improvement to the
intersection noted above.
4. Water and Sewer: Be solely responsible for the cost of any water or sewer
main extensions or expansions that are necessary to ~ring available City
water and/or sewer lines to adequately serve any of the properties that are part
of the Development Order. In the event that the City wishes Applicant to
oversize any of said lines for other potential users of the system. Applicant
shall only be responsible for its hydraulic share of such oversizing.
5. Washiniton Avenue and Alton Road Streetsc~ and Landsca,pe Plans:
Within eighteen (18) months of the date of the final approval of the
Development Order, prepare and submit to the City a landscape and
streetscape plan for Washington Avenue and Alton Road south of Fifth Street
to South Pointe Drive. at Applicant's sole cost and expense. Applieant
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hereby agrees to participate in the funding of the implementation of such
plan[s], provided that the plans are not materially changed without
Applicant's consent (not to be unreasonably withheld) and provided further
that Applicant's fair share contributions for the funding of the implementation
of said plan shall be not to exceed Two Hundred Ten Thousand Dollars
($210,000) for the Washington Avenue plan and Two Hundred Fifty
Thousand Dollars ($250.000) for the Alton Road portion of the plans. These
fair share contributions shall be paid by Portofino in aceordance with
Paragraph 12 below.
6. Library Facilities: The City of Miami Beach has the physical facilities
available to establish a branch library but is lacking adequate funding for the
eost of stocking said library. Applicant will pay to the City ofMiarni Beach,
for the funding of the stocking of said library. the s~ of Fifty Thousand
Dollars ($50,000) contingent upon changing the name of the library, subject
to the process established by Dade County. from "South Shore Branch
Library" to " South Pointe Branch Library," as well as the placement of a
commemorative plaque to be placed on the Library acknowledging
Applicant's contribution. The design and expense of the plaque shall be paid
for by the Applicant. These fair share contributions shall be paid by the
Applicant. as noted in Paragraph 12 below; provided, however. that the
design and expense of the plaque shall be paid for by the Applicant at such
time as said plaque is commissioned.
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7. Eleetrie Shuttle: Provided that adequate stops are adjacent to the properties
o\Vl1ed by the Applicant, Applicant will pay to the City its fair share of Fifty
Thousand Dollars ($50,000) for the marketing and operation of generie or
any other public mass transit initiative. Furthermore, provided that stops are
adjacent to Applicant's properties, Applicant will pay the eost of "Electric
Wave" transit stop signs, meeting the design approval of the City. at such
locations adjacent to the Applicant's properties hereunder as may be approved
by the City. These fair share contributions shall be paid by Applicant in
aceordance with Paragraph 12 below.
8. Booster Pump Station: Provided that the Applicant has eonsented to the
plans therefor (such consent not to be unreasonably withheld), landscaping
for the site in an amount of Twenty-Five Thousand Dollars ($25,000) shall
be paid by the Applicant. This fair share contributiqn shall be paid by
Applicant in accordance with Paragraph 12 below.
9. Baywalk: Fulfill its obligations for baywalk improvements adjacent to SSDI-
North, SSDI-South, and the Hinson Parcel (i.e., south to the northern
boundary line of the Federal Triangle Parcel, all as graphically depieted on
Exhibit E to the Settlement Agreement by and among the City of Miami
Beach, Miami Beach Redevelopment Agency and Wests ide Partners, Ltd.,
dated , 1998 (the "Settlement Agreement"), which is on file
with the Clerk of the City Commission, by constructing a public baywalk
along the entire length of these properties fronting on Biscayne Bay on (i) the
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west twenty five (25) feet of the plotted lots, and (ii) any land currently
existing west of the west lot line of the plotted lots. In order to complete said
baywalk, West Side agrees to fill the western portion of the Hinson Parcel to
the western boundary of said parcel. as graphieally depicted on Exhibit E to the
Settlement Agreement. All construction costs including design and
construction, including, but not limited to, the seawall (solely along the Hinson
Parce!), paving, lighting. street furniture, signage and landseaping are to be
paid by the Applicant These improvements shall be completed upon issuance
on any certificates of occupancy for the adjacent parcels; provided, however,
that the extension of the public baywalk to the northern boundary line of the
Federal Triangle Parcel shall be completed by the Applicant within five (5)
years of this Development Order becoming final.
10, Washiniton Avenue Extension: The Applicant will dedi.eate. by easement, the
extension of the public right-of-way of Washington Avenue to serve South Pointe
Park, when the closing of SSDI North occurs (provided that all of the "Final
Approvals," as such term is defined in the Settlement Agreement have been
obtained); provided, however, that said easement area will be included in any
calculations of setbacks or Floor Area Ratio ("F.A.R "), lot size or any other zoning
or planning requirement of the City in connection with the development of the
parcels encumbered by said easement, and in connection with any condemnation
or purchase of the parcels encumbered by said easement, said parcels will be treated
as though said parcels were not encumbered by said easement; provided further,
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that the Cireuit Court of the 11 th Judicial Circuit in and for Dade County, Florida,
will retain jurisdiction to enforee the terms of the Settlement Agreement, and if the
City fails to calculate the setbacks, F.A.R., lot size or any other zoning or planning
requirement of the City, as noted above, or fails to treat said parcels as though said
parcels were not encumbered by said easement in eonnection with any
condemnation or purchase of the parcels encumbered by said easement, then
Applicant, may file the appropriate action in said Circuit Court of the 11 th Judicial
Circuit in and for Dade County, Florida, to enforce its rights under the aforesaid
Settlement Agreement.
11. Sunset Pla7a: The City shall release the pedestrian easement and the southern
access easement on the southern side of the building known as the "Yaeht Club" on
the northern portion of SSDI South and the Applicant will provide plans to the City
for: (i) a limited access corridor to the Baywalk not less tqan forty (40) feet wide
which will allow for public access to the Baywalk, as well as emergency vehicle
access. and (ll) the driveway access and drop-offparking area required pursuant to
the 1986 Development Agreement (as such term is defined in the Settlement
Agreement). said interest to be granted pursuant to an easement to be executed by
Applicant to the City at the time the existing pedestrian easement is released. The
grant of the above-noted easement to the City shall not affect the setbacks. F.A.R.,
lot size or any other zoning or planning requirements of the City that would affect
or limit the ability of the Applicant to fully develop any properties adjacent to said
easement. Plans for such access corridor, driveway access and drop-off parking
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