OFFICE OF THE CITY ATTORNEY

e"
F

NCO

JOSE SMITH
2

City Attorney

Telephone:

( 305) 673- 7470

Facsimile:

( 305) 673- 7002

August 18, 2008

Martin A. Schwartz, Esquire

Bilzin

Sumberg

Baena Price & Axelrod LLP

200 So. Biscayne Blvd., Suite 2500

Miami, Florida 33131

RE:

Predevelopment Agreement

City

of

Miami Beach/ SRC Properties, LLC

Dear Mr. Schwartz:

i

Enclosed

please

find two ( 2)

original fully executed Agreements regarding the

above- referenced.

Should

you

have any

questions or comments,

please do not hesitate to contact

me.

Ve

tr

ours

Raul J. Aguil

Deputy City

ttorney

RJA/ed
Encl.

1700 Convention Center Drive-- Fourth Floor -- Miami Beach, Florida 33139

ffi

Sumberg

ATTORNEYS

AT

LAW

Martin A. Schwartz, Esq.

Tel

305. 350. 2367

Fax 305. 351. 2255

mschwartz @bilzin. com

August 14, 2008

VIA FEDERAL EXPRESS

Raul J. Aguila,

Esq.
First Assistant City Attorney
City of Miami Beach
1700 Convention Center Drive, 4th Floor
Miami Beach FL 33139

Re:

Predevelopment Agreement

City

of

Miami Beach/ SRC Properties, LLC

Dear Raul:
Enclosed
Agreement

on

please

behalf

of

find

five

original

signed

SRC Properties LLC.

copies

of

the

Predevelopment

Please have them executed and dated

on behalf of the City and return two of the fully executed copies to me.
Very truly yours,

art'

wa rtz

MAS/ d

Encl.
cc:

Brian Tague,

Esq. ( via

email)

Scott Robins ( via

email)

Levine ( via

email)

Philip

MIAMI 1623 23 7. 1 7319009976

BILZIN

SUMBERG

BAENA PRICE &

AXELROD

LLP

200 S. Biscayne Boulevard, Suite 2500, Miami, FL 33131- 5340

Tel 305. 374. 7580

Fax 305. 374. 7593

n; n ;.

biizin.

orr

PREDEVELOPMENT AGREEMENT

THIS AGREEMENT dated

MIAMI BEACH,

Florida

as of

August

municipal

liability company (" SRC").

individually as a " Party."

Florida limited
Parties"

and

2008 (" Agreement") between CITY OF

City") and SRC PROPERTIES, LLC, a

City and SRC are collectively referred to as the

corporation ("

RECITALS
A.-

SRC, through

certain affiliates, controls

certain

located in Miami Beach, Florida in the. area bounded

19th

by
the south, Bay Road on the east and Purdy Avenue on the east.
B.
some

of

parking

properties ("

Street

on

the

Project Properties")
north,

18`

Street on

City and SRC are exploring an arrangement for the purchase of the air rights over .

the Project Properties

garage ("

by

the

City (" Purchase") and the construction by the City of a

Project").

C.
In order to determine the feasibility of the Purchase, the City has requested SRC
to obtain approvals of the Project from the City Planning Board and the City Design Review
Board ( collectively, " Board Approvals").

D.

In

predevelopment

such

to

order

work ("

Predevelopment

obtain

it will be necessary to perform- certain

and- the City has agreed to share the cost of

the Board Approvals,

Predevelopment Work")

Work (" Predevelopment Costs")

with

SRC; notwithstanding that the

Parties have: not at this time entered into a formal agreement with respect to the Project
Properties and the development thereof.
NOW, THEREFORE, in consideration of the premises recited above, the undertakings of
the

Parties described below

and $

10. 00 and other good and valuable consideration paid by each

Party to the other, the City and SRC agree as set forth below.
1.

SRC shall perform the Predevelopment Work consisting

Predevelopment Work.

of the following:
a)

Obtain

Obtain a traffic study;.

c)

Obtain a concurrency report;

d)

Use

sufficient

architectural . and

engineering

plans

for

the

Board

Approvals;

reasonable

commercial

efforts

to

obtain a proposed design/ build

contract from a contractor reasonably acceptable to the City for execution by the City providing
for completion of the Project ( exclusive of the build out of the first floor retail space) at a cost of
approximately$ 15, 805 ( low) to $

20, 377 ( high) per parking space in accordance with SRC' s prior

submission to the City without consideration of any changes that may be necessitated in such
contract by reason of the Board Approvals;
MIAMI 1 598569. 6 7319009976
8/ 12/ 08 10: 59 AM

e)
Obtain such other materials as may be required by the Planning Board
and/ or the Design Review Board to obtain the Board Approvals, including the items described in

Schedule A; and

Obtain approval from any other City Boards whose approval may be

f)

required for the initial design and site plan of the Project.
Predevelopment Costs Payments.

2.

SRC

a)
shall

be

responsible

responsible

for 65%

for 35%

of

City

the

and

agree

to

Approved

of

share

Approved Predevelopment Costs.

Predevelopment

Costs

City

the

and

SRC

shall be

Approved Predevelopment Costs. Approved Predevelopment Costs shall

mean those Predevelopment Costs up to the amounts described in Schedule A.

The

b)

limits

on

Predevelopment

Approved

Costs

and

any

additional

Predevelopment Costs shall be subject to change from time to time upon written approval

between the City and SRC.

Both the City and SRC agree to pay their respective share of Approved

c)

Predevelopment Costs within 30 days of receipt of an invoice for an item of such Approved
Predevelopment Costs together with such additional information with respect to such invoice as

The Parties agree that either Party may, by

agreement between the Parties, be the disbursing agent for any such invoice and, in such event,
the allocable share of each Party for such invoice shall be paid to the disbursing agent. Upon
payment of any invoice, the disbursing agent shall obtain evidence of payment and distribute
may be reasonably

requested

by

any

of

the Parties.

such evidence to the nondisbursing Party.

Predevelopment Costs shall not include any costs incident to developing

d)

retail facilities on the first floor of the Project Properties.

3.

Notices.

Any

and

all

notices

required

or

desired to be

given under this

Agreement shall be in writing and shall be deemed to have been duly given when delivered by( i)
hand, ( ii) facsimile ( provided
overnight

courier

certified mail,

address of

the

a confirmation sheet

service ( such

as

is

provided

Federal Express)

or (

by

the sending

iv) United States

machine), (

mail,

iii) any

registered

or

and in any such case addressed to the

set forth below (or to such other address as either Party may
given in accordance with this- Section 5 to the other Party). Any

return receipt requested, postage prepaid,

Party

subsequently specify

to be

by

notified

a notice

Party may change the address for notice purposes by giving written notice in accordance with
this Section 5.

The Parties designate the following as the respective places for giving of notice:
FOR CITY:

City of Miami Beach

1700 Convention Center Drive

Miami Beach, Florida 33139

Attn:

Jorge M. Gonzalez, City Manager

Fax No.: 305- 673- 7782

2
MIAMI 1599569. 6 7319009976
8/ 12/ 08 10: 59 AM

With a copy to:

City of Miami Beach

1700 Convention Center Drive

Miami Beach, Florida 33139

Attn: Kevin Crowder
Fax No.: 305- 673- 7033

For SRC:
SRC Properties LLC
230 Fifth Street
Miami Beach, Florida 33139

Attn: Scott Robins

Fax No.: 305- 674- 0619

All captions in this Agreement are for convenience only and are not to

Captions.

4.

be referred to in connection with the construction or interpretation of this Agreement or any of its
provisions.

Attorneys Fees.

5.

In any litigation brought

or maintained pursuant

to, or arising

out of, the terms of this Agreement, the prevailing Party shall be entitled to recover its reasonable
attorneys' fees from the other Party.
6.

Assignment.

SRC may

assign

this

Agreement to

any entity meeting the

following requirements:
a)

Scott Robins has a direct or indirect ownership interest in the entity;

b)

the entity has an ownership interest in any of the Project Properties; and

c)

the

entity

assumes

in

writing

all

of

SRC'

obligations

under

this

Agreement.

Upon any
under

such

assignment,

this Agreement.

SRC shall remain jointly and severally- liable for all obligations

This Agreement and its obligations shall nt otherwise be assignable

Party. Except as otherwise indicated in

this Section, this Agreement shall be binding on the successors and assigns of the respective
without

the

prior written consent of

the

non- assigning

Parties.
Termination.

7.
the other

Either Party may terminate this Agreement at any time by notice to

Party. Such termination will not relieve either of the Parties of its payment obligation

for Predevelopment Costs incurred or for which an obligation for payment has been incurred

pursuant to any written or oral agreement entered into by either Party prior to the nonterminating Party' s receipt of notice of termination. The obligation for payment of such
Predevelopment Costs shall survive termination of this Agreement.

3
MIAMI 1598569. 6 7319009976
8/ 12/ 08 10: 59 AM

Complete Agreement.

8.

This Agreement contains the entire understanding of the

Parties relating to the subject matter of this Agreement and cannot be changed or- terminated
except by an instrument signed by both Parties.
No Joint Venture Nor Agreement to Purchase.

9.
shal

shall

not

be

construed

to create a partnership

be liable for any act or omission of the

or

oint venture

other

This Agreement does not and

between the Parties.

Neither Party

Party. This Agreement does not constitute an

agreement to sell or an agreement to purchase any portion of the Project Properties nor shall it
bind

either of

agreement,

it

the Parties to

will

be the

reach such

subject of a

agreement.

further

To the extent the Parties reach any such

written agreement executed

by

the Parties.

The

failure of the Parties to reach an agreement for the sale and purchase of the Project Properties

shall not relieve either Party of its payment obligations under this Agreement.
10.

Governing Law. This Agreement has been entered into in the State of Florida,

and the validity, interpretation and legal effect of this Agreement shall be governed by the laws
of the State of Florida applicable to contracts entered into and performed entirely within the State
of Florida. Jurisdiction and venue of any controversies regarding this Agreement, and any action

or other proceeding which involves such a controversy will be brought in Miami=Dade County,
Florida and not elsewhere.

In the event any provision of. this Agreement shall be

determined to be invalid or unenforceable by a court of competent jurisdiction or by any other
11.

Partial Invalidity.

legally constituted body having jurisdiction to make such determination, the remainder of the
Agreement shall remain in full force and effect.

4
MIAMI 1598569.6 73I9009976
8/ 12/ 08 10: 59 AM

Construction

12.

The Parties acknowledge that each has participated

Agreement.

of

in and has been equally responsible for preparation of this Agreement, and that this Agreement
or any possible ambiguities contained therein shall not be construed against either Party.
Agreement

13.
acknowledge

Project, the

that,

City

Subject

no obligation

Ratification

by

City

The

Commission.

Parties

pursuant to prior authorization of the City Commission with regard to the

has ( as

of the effective

the Predevelopment Costs, as

Predevelopment Costs shall be
have

to

to

set

date

of

this Agreement)

appropriated $

50, 000 toward

Accordingly, the balance of

City Commission. The City shall

forth in Schedule A hereto.

subject

to

appropriation

by

the

any Predevelopment Costs beyond $ 50, 000 until such time as

approved by the City Commission.
In the event that the City

reimburse

the balance of said Costs

are

Commission does not approve the appropriation of the balance of the Predevelopment Costs by
October 1, 2008, then this Agreement may be terminated by either party, upon three ( 3) days
In the event of a termination pursuant to this Section 13, the City
written notice to the other.

shall compensate SRC for the City' s portion of the Predevelopment Costs incurred up to the date
of termination (

up to

a maximum of$

50, 000), and thereafter the Parties shall have no further

liability to each other with regard to this Agreement.

CITY OF MIAMI BEACH

By:

7ROPERTIES, LLC

By
Scott Robins, Managing Member

APPROVED AS TO
LANGUAGE
FOR EXECUTION

FORM&

5
MIAMI 1598569. 6 7319009976
8/ 12/ 08 10: 59 AM

City Attom

ate

SCHEDULE A

PREDE'VELOPMENT WORK
MAXIMUM COST

ITEM
Landscape Plans

1.

Architectural

2.

Traffic

Renderings

4.

Survey

5.

Environmental Reports

6.

Application,

and

952000

22, 100

Study

6, 000
11050

Preparation

Filing

Fees

2, 000
and

20, 000

Miscellaneous fees
7.

Attorneys

and

Miscellaneous

20, 000

Consultants Fees
166 150

MIAMI 1598569. 6 7319009976

8/ 12/ 08 10: 59 AM

PREDEVELOPMENT AGREEMENT

THIS AGREEMENT dated

MIAMI BEACH,

Florida

as

August

of

municipal

2008 (" Agreement") between CITY OF

corporation ("

City")

and

SRC PROPERTIES, LLC,

liability company (" SRC"). City and SRC are collectively referred to as the
individually as a " Party."

Florida limited
Parties"

and

RECITALS
A.-

SRC, through

certain affiliates, controls certain properties ("

Street
by
the south, Bay Road on the east and Purdy' Avenue on the east.
located in Miami Beach, Florida in the

B.
some of

parking

area

bounded

Project Properties")

19t"

on the north,

18t"

Street on

City and SRC are exploring an arrangement for the purchase of the air rights over .
by the City (" Purchase") and the construction by the City of a

the Project Properties

Project").

garage ("

C.

In order to determine the feasibility of the Purchase, the City has requested SRC
from the City Planning Board and the City Design Review

to obtain approvals of the Project

Board ( collectively, " Board Approvals").

D.

In

predeveloprnent

order

to- obtain the Board Approvals,

work ("

Predevelopment Work")

it will be necessary to perform certain

and the City has agreed to share the cost of

Predevelopment Work (" Predevelopment Costs") with SRC; notwithstanding that the
Parties have not at this time entered into a formal agreement with respect to the Project
such

Properties and the development thereof.

NOW,.THEREFORE, in consideration of the premises recited above, the undertakings of

the Parties described below

and $

10. 00 and other good and valuable consideration paid by each

Party to the other, the City and SRC agree as set forth below.
1.

Predevelonnient Work.

SRC shall perform the Predevelopment Work consisting

of the following:
for

the

Board

a)

Obtain

b)

Obtain a traffic study;.

c)

Obtain a concurrency report;

d)

Use reasonable commercial efforts to obtain a proposed design/build

sufficient

architectural . and

engineering

plans

Approvals;

contract from a contractor reasonably acceptable to the City for execution by the City providing
for

completion of

the Project ( exclusive

approximately $ 15, 805 ( low) to $ 20, 377

of the build out of the first floor retail space) at a cost of

( high) per parking space in accordance with SRC' s prior

submission to the City without consideration of any changes that may be necessitated in such
contract by reason of the Board Approvals;
MIAMI 1598569. 6 7319009976
8/ 12/ 08 10: 59 AM

Obtain such other materials as may be required by the Planning Board

and/ or the Design Review Board to obtain the Board Approvals, including the items described in
e)

Schedule A; and

Obtain approval from any other City Boards whose approval may be

f)

required for the initial design and site plan of the Project.

Predevelopment Costs Payments.

2.

SRC

a)
shall

be

responsible

responsible

for 65%

City

and

the

for 35%

of

of

agree

to

share

Approved Predevelopment Costs.

Approved Predevelopment

Costs

City shall be

the

and

SRC

Approved Predevelopment Costs. Approved Predevelopment Costs shall

mean those Predevelopment Costs up to the amounts described in Schedule A.

The

b)

limits

Predevelopment

Approved

on

Costs

and

any

additional

Predevelopment Costs shall be subject to change from time to time upon written approval

between the City and SRC.

Both the City and SRC agree to pay their respective share of Approved

c)

Predevelopment Costs within 30 days of receipt of an invoice for an item of such Approved
Predevelopment Costs together with such additional information with respect to such invoice as
Parties.

The Parties agree that either Party may, by

agreement between the Parties, be the disbursing agent for any such invoice and, in such event,
the allocable share of each Party for such invoice shall be paid to the disbursing agent. Upon
payment of any invoice, the disbursing agent shall obtain evidence of payment and distribute
may be reasonably

requested

by

any

of

the

such evidence to the nondisbursing Party.

Predevelopment Costs shall not include any costs incident to developing

d)

retail facilities on the first floor of the Project Properties.

Notices.

3.

Any

and

all

notices

or

required

desired to be

given under this

Agreement shall be in writing and shall be deemed to have been duly given when delivered by (i)
hand, ( ii) facsimile ( provided
overnight

courier

a confirmation sheet

service ( such

as

is

provided

Federal Express)

or (

certified mail, return receipt requested, postage prepaid,

by

the sending

iv) United States

machine), (

mail,

iii) any

registered or

and in any such case addressed to the

address of the Party to be notified set forth below (or to such other address as either Party may
subsequently specify

by

a notice given

in

accordance with

this' Section 5 to the other

Party). Any

Party may change the address for notice purposes by giving written notice in accordance with
this Section 5.

The Parties designate the following as the respective places for giving of notice:
FOR CITY:

City of Miami Beach

1700 Convention Center Drive
Miami Beach, Florida 33139
Attn:

Jorge M. Gonzalez, City Manager

Fax No.: 305- 673- 7782

2
MIAMI 1598569. 6 7319009976
8/ 12/ 08 10: 59 AM

With a copy to:

City of Miami Beach

1700 Convention Center Drive
Miami Beach, Florida 33139
Attn: Kevin Crowder

Fax No.: 305- 673- 7033

For SRC:

SRC Properties LLC

230 Fifth Street
Miami Beach, Florida 33139

Attn: Scott Robins

Fax No.: 305- 674- 0619

All captions in this Agreement are for convenience only and are not to
be referred to in connection with the construction or interpretation of this Agreement or any of its
Captions.

4.

provisions.

In any litigation brought

Attorneys Fees.

5.

or maintained pursuant

to, or arising

out of, the terms of this Agreement, the prevailing Party shall be entitled to recover its reasonable
attorneys' fees from the other Party.
6.

Assignment.

SRC may

assign

this

Agreement

to

any entity meeting the

following requirements:
a)

Scott Robins has a direct or indirect ownership interest in the entity;

b)

the entity has an ownership interest in any of the Project Properties; and

c)

the

entity

assumes

in

writing

all

of

SRC'

obligations

under

this

Agreement.

Upon any
under

such

assignment,

this Agreement.

without

the

Party. Except as otherwise indicated in

this Agreement shall be binding on the successors and assigns of the respective

prior written

this Section,

SRC shall remain jointly and severally liable for all obligations

This Agreement and its obligations shall not otherwise be assignable

consent of

the non- assigning

Parties.
Termination.

7.

Either Party may terminate this Agreement at any time by notice to.

Party. Such termination will not relieve either of the Parties of its payment obligation
for Predevelopment Costs incurred or for which an obligation for payment has been incurred
the

other

pursuant

to

any written or oral agreement entered into by either Party prior to the non-

terminating Party' s

receipt

of

notice

of

termination.

The obligation for payment of such

Predevelopment Costs shall survive termination of this Agreement.

3
MIAMI 1598569. 6 7319009976
8/ 12/ 08 10: 59 AM

Complete Agreement.

8.

This Agreement contains the entire understanding of the

Parties relating to the subject matter of this Agreement and cannot be changed or terminated
except by an instrument signed by both Parties.
9.
shall not
shall

No Joint Venture Nor Agreement to Purchase. This Agreement does not and
be construed to create a partnership or joint venture between the Parties. Neither Party

be liable for any

act or omission of the other

Party. This Agreement does not constitute an

agreement to sell or an agreement to purchase any portion of the Project Properties nor shall it
bind

either of

agreement,

it

the Parties to

will

be the

reach

subject

such

of a

agreement.

further

To the extent the Parties reach any such

written agreement executed

by

the Parties.

The

failure of the Parties to reach an agreement for the sale and purchase of the Project Properties

shall not relieve either Party of its payment obligations under this Agreement.
10.

Governing Law. This Agreement has been entered into in the State of Florida,

and the validity, interpretation and legal effect of this Agreement shall be governed by the laws
of the State of Florida applicable to contracts entered into and performed entirely within the State
of Florida. Jurisdiction and venue of any controversies regarding this Agreement, and any action

or other proceeding which involves such a controversy will be brought in Miami- Dade County,
Florida and not elsewhere.

Partial Invalidity.
11.
In the event any provision of this Agreement shall be
determined-to be invalid or unenforceable by a court of competent jurisdiction or by any other

legally

constituted

body having

jurisdiction to

make such

Agreement shall remain in full force and effect.

4
MIAMI 1 598569. 6 7319009976
8/ 12/ 08 10: 59 AM

determination, the remainder of the

12.

Construction

of

Agreement. The Parties acknowledge that each has participated

in and has been equally responsible for preparation of this Agreement, and that this Agreement
or any possible ambiguities contained therein shall not be construed against either Party.
13.

Agreement

Subject

to

Ratification

by

City Commission.

The

Parties

pursuant to prior authorization of the City Commission with regard to the

City has ( as of the effective date of this Agreement) appropriated $ 50, 000 toward
the Predevelopment Costs, as set forth in Schedule A hereto.
Accordingly, the balance of
Predevelopment Costs shall be subject to appropriation by the City Commission. The City shall
acknowledge

that,

Project, the

have

no obligation

the balance of said

to

any Predevelopment Costs beyond $ 50, 000 until such time as

approved by the City Commission.
In the event that the City

reimburse

Costs

are

Commission does not approve the appropriation of the balance of the Predevelopment Costs by
October 1, 2008, then this Agreement may be terminated by either party, upon three ( 3) days
In the event of a termination pursuant to this Section 13, the City
written notice to the other.

shall compensate SRC for the City' s portion of the Predevelopment Costs incurred up to the date
of termination (

up to

a maximum of$

50, 000), and thereafter the Parties shall. have no further

liability to each other with regard to this Agreement.

CITY OF MIAMI BEACH

By:

SRC

By:

TIES, LLC

7.

Scott Robins, Managing Member

APPROVED AS TO
FORM & LANGUAGE
FOR EXECUTION
5
MIAMI 1598569. 6 7319009976
O

8/ 12/ 08 10: 59 AM

ity

ttorn

ate

SCHEDULE A

PREDEVELOPMENT WORK

MAXIMUM COST

ITEM
Landscape Plans

1.

Architectural

2.

Traffic

3.

Renderings

4.

Survey

5.

Environmental Reports

6.

Application,

and

951000
22, 100

Study

6, 000
1, 050

Preparation

Filing

Fees

2, 000
and

20, 000

Miscellaneous fees
7.

Attorneys

and

Miscellaneous

20, 000

Consultants Fees
166 150

MIAMI 1598569. 6 7319009976

8/ 12/ 08 10: 59 AM

AGREEMENT BETWEEN

CITY OF MIAMI BEACH

AND

ARQUITECTONICA INTERNATIONAL CORP.

FOR

PROFESSIONAL ARCHITECTURE AND ENGINEERING SERVICES

FOR THE

PURDY AVENUE GARAGE AND RETAIL PROJECT

Resolution No.

TABLE OF CONTENTS
DESCRIPTION

DEFINITIONS

Commission

1. 3

City
City
City

Manager

1. 4

Proposal Documents

1. 5

Consultant

ARTICLE 1

1. 1
1. 2

Project Coordinator

1. 6

City

1. 8

Basic Services

1. 9

The Project

1. 9. 1

The Project Cost

The Project Scope

Construction Cost
1. 10
1. 10. 1 Construction Cost Budget
1. 10. 2 Statement of Probable Construction Cost

1. 9. 2

3
3
3

1. 11

Force Majeure

1. 12

Contractor

1. 13

Contract Documents

1. 14

Contract for Construction

1. 15

Construction Documents

1. 16

Contract Amendment

1. 17

Additional Services

1. 18

Work

1. 19

Services

1. 20

Base Bid

1. 21

Schedules

1. 22

Scope

of

2. 2

BASIC SERVICES
Planning Services
Design Services

2. 3

Bidding

ARTICLE 2.

2. 1

Services

and

6
7

2. 4

Construction Phase Services

2. 5

Additional Services

2. 6

Responsibility for Claims

Time

2. 7

Award Services

7
7

and

Liabilities

ARTICLE 3.

THE CITY' S RESPONSIBILITIES

11

ARTICLE 4.

RESPONSIBILITY FOR CONSTRUCTION COST

14

ARTICLE 5.

ADDITIONAL SERVICES

15

ARTICLE 6.

REIMBURSABLE EXPENSES

16

ii

ARTICLE 7.

COMPENSATION FOR SERVICES

16

ARTICLE 8.

CONSULTANT' S ACCOUNTING RECORDS

18

ARTICLE 9.

OWNERSHIP AND USE OF DOCUMENTS

18

ARTICLE 10.

TERMINATION OF AGREEMENT

19

Funds

19

10. 1

Termination for Lack

10. 2

Termination for Cause

19

10. 3

Termination for Convenience

20

10. 4

Termination for Condition Precedent

20

10. 5

Termination

10. 6

Implementation

10. 7

Non- Solicitation

21

ARTICLE 11.

INSURANCE

21

ARTICLE 12.

INDEMNIFICATION

22

ARTICLE 13.

VENUE

22

ARTICLE 14.

LIMITATION OF LIABILITY

22

ARTICLE 15.

MISCELLANEOUS PROVISIONS

23

ARTICLE 16.

NOTICE

25

by

of

20

Consultant
of

Termination

SCHEDULES:
SCHEDULE A

SCOPE OF SERVICES

SCHEDULE B

CONSULTANT COMPENSATION

SCHEDULE C

HOURLY BILLING RATE

SCHEDULE D

PROJECT SCHEDULE

SCHEDULE E

GENERAL CONDITIONS OF THE CONSTRUCTION CONTRACT

SCHEDULE F

INSURANCE AND SWORN AFFIDAVITS

SCHEDULE G

BEST VALUE AMENDMENT

iii

21

TERMS AND CONDITIONS OF AGREEMENT

BETWEEN THE CITY OF MIAMI BEACH AND CONSULTANT

ARQUITECTONICA INTERNATIONAL CORP.

FOR PROFESSIONAL
ARCHITECTURE AND ENGINEERING ( A/ E) SERVICES

FOR THE

PURDY AVENUE GARAGE AND RETAIL PROJECT

0

This Agreement
BEACH,

made

municipal

City), having its

corporation

existing
at

offices

principal

into this ?

entered

and

Arquitectonica International

Corp.,

under

of:

AMsch 2009

the laws

1700 Convention

Florida

dayy

of

b Y and between the CITY OF MIAMI

the State of Florida ( hereinafter referred to as

Beach,

Center Drive, Miami

having its

corporation

principal

office

at

Florida, 33139,

and

801 Brickell Avenue,

Suite 1100, Miami, Florida, 33131 ( hereinafter referred to as Consultant).

WITNESSETH:

WHEREAS, the

City

intends to

particularly described in this Agreement

undertake

and

the

the

project within

attached

City

of

Miami Beach, which is more

Schedule " A", and wishes to engage the Consultant

to provide architecture, landscape architecture, and engineering services for the Project at the agreed fees as
set forth in this Agreement; and

WHEREAS,

engineering,

urban

the

desires

Consultant

design,

and

landscape

to

contract

architectural,

with

the

City

for

performance

of

architectural,

and related professional services relative to the

Project, as hereinafter set forth; and

NOW THEREFORE,

City

and

Consultant, in consideration of the mutual covenants and agreement

herein contained, agree as follows:

ARTICLE 1. DEFINITIONS

1. 1

CITY: The "

City"

principal offices at

shall

mean

the

City

of

Miami Beach,

a Florida municipal corporation having its

1700 Convention Center Drive, Miami Beach, Florida, 33139.

CITY COMMISSION: "

1. 2

City

Commission"

shall mean the governing and legislative body of the

City.

1. 3 CITY MANAGER: The " City Manager"

Manager

City

be

shall

construed

shall mean

to include any

the

duly

chief administrative officer of

authorized

designees,

the

City.

The

including the Project

Coordinator and shall serve as the City's representative to whom administrative requests for approvals
shall

be

made and who shall

issue

authorizations (

exclusive of those authorizations reserved to the

City Commission) to the Consultant.

1. 4 PROPOSAL DOCUMENTS: " Proposal Documents" shall mean the documents dated August 01,

2008, and submitted to and approved by the Design Review Board for the Project.

1. 5 CONSULTANT:

Florida

corporation

The " Consultant" is herein defined

having its

principal offices at

and

any

Arquitectonica

International

Corp.,

801 Brickell Avenue, Suite 1100, Miami, FL 33131.

is used in this Agreement it shall be deemed to include any sub-

When the term " Consultant"

consultants

as

other person or

entity acting

under

the direction

or control of

Consultant.

Any

subconsultants retained by Consultant pursuant to this Agreement and the Project shall be subject to
prior written approval of

the

City. The following subconsultants are hereby approved by the City for

Proj

the Project:

Structural Engineer: Donnell Duquesne Albarsa Engineers, PA.

Landscape Architect: Arquitectonica GEO

M/ E/ P: Fire Engineer: PGI Group

Civil Engineer: Terra Civil Engineering

PROJECT COORDINATOR: The " Project

1. 6

City

Manager

who

shall

be the

City' s

Coordinator" shall mean the individual appointed by the

authorized

representative

to

coordinate,

direct,

and review on

behalf of the City, all matters related to the Project, except as otherwise provided herein.
1. 8

BASIC SERVICES: " Basic Services" shall include the architectural and interior design, landscape

architectural, and/ or engineering and related professional services relative to the Project, as hereinafter
set

forth,

including:

planning,

described in Article 2 herein

1. 9

design, bidding/ award, and construction administration for the Project, as

and

PROJECT: The " Project"

in Schedule" A"

entitled " Scope of

Services" attached hereto.

shall mean the City Capital Project that has been approved by the City

Commission and as described in Schedule " A" attached hereto.

The " Project Cost",

PROJECT COST:

1. 9. 1

the Project to the

financing

cost, materials

testing

Cost,

Construction

City including:

by

as established

the

shall mean the total cost of

City,

compensation,

professional

land

cost,

if any,

services, surveys, contingencies and other miscellaneous costs.

The " Project Scope" shall mean the description of the Project contained in

1. 9. 2 PROJECT SCOPE:

Schedule " A" attached hereto.

The " Construction Cost" for the Project shall mean the sum which is

1. 10 CONSTRUCTION COST:

the total cost or estimated cost to the City of all elements of the Project designed or specified by the
Consultant

for

overhead and

contingency

for

construction cost

historic buildings,
cost of

or

land,

the

City, including,

at current market rates ( with a

reasonable allowance

the cost of labor and materials and any equipment which has been designed,

profit),

selected

specified,

including

by

and approved

for

allowance

including

rights- of- way, surveys,

the

the Consultant

by

twenty

percent (

compensation

testing,

not

conditions,

unforeseen

new construction, or

and not

for

provided

specifically

of

to

and

by

approved

ten

exceed

the

percent (

City,

10%)

and

of the

20%) of construction cost for rehabilitation of

the Consultant

and

or other reimbursable expenses.

any

subconsultants,

the

For Work not constructed,

the Construction Cost shall be the same as the lowest bona fide bid or competitive bid received and

accepted from a responsible bidder or proposer for any and all of such Work.

The " Construction Cost Budget"

1. 10. 1 CONSTRUCTION COST BUDGET:

budgeted

the

by

City

for Construction Cost,

as specified

shall mean an amount

in the Project Scope in Schedule " A"

attached

hereto.

1. 10. 2 STATEMENT OF PROBABLE CONSTRUCTION COST: The

Construction Cost"

in
or

attached

Probable

have

of

Probable

shall mean a forecast of Construction Cost prepared by the Consultant, as defined

Schedule " A",

proposals

" Statement

not

Construction

entitled "

Scope

of

Services",

for the guidance of the City. For Work which bids

been let, the Construction Cost shall be the same as the latest Statement of
Cost. The

City

have

shall

the

right

to

verify the

Statement of Probable

Construction Cost or detailed cost estimate by the Consultant.

FORCE MAJEURE: " Force Majeure"

1. 11

shall mean any delay occasioned by superior or irresistible

force occasioned by violence in nature without the interference of human agency such as hurricanes,
tornadoes, floods, loss

Federal, State
and

having

other

such

or

caused

local laws,

a substantial
causes

which

by

fire

and

other

similar

unavoidable

ordinances, codes or regulations,

impact

on

the Project;

the Consultant
3

and

City

or by changes in

enacted after the date of this Agreement

other causes

the

casualties;

beyond the

decide in writing

parties'

justify

control;

the

delay;

or by any
provided,

however, that

market conditions,

labor

construction industry price trends and similar matters

conditions,

which normally impact on the bidding process shall not be considered a Force Majeure.
1. 12

CONTRACTORS: " Contractor"

CONTRACTOR /

entities

for performing the Work

responsible

or

Contractors" shall mean those persons or

or "

providing

the

materials,

and

supplies

equipment

identified in the Bid and Construction Documents for the Project.

" Contract Documents"

1. 13 CONTRACT DOCUMENTS:
between the
General,

City

Contractor; Contract for Construction; Conditions of the Contract for Construction

and

Supplementary,

amendment

Conditions); Construction Documents; and addenda issued prior to

and other

Contract for Construction.

the

of

execution

to this Agreement

Change Order; ( 3)

this Agreement; the Agreement

mean

shall

or

modification

the Contract for Construction

Construction Change Directive;

or (

is

one

by

signed

following: ( 1)

the

of

both

parties; (

2)

written

an approved

4) a written order for a minor change in the

Work issued by the Consultant.

1. 14

CONTRACT FOR CONSTRUCTION:

" Contract for Construction"

shall mean a legally binding

agreement with Contractors.

1. 15 CONSTRUCTION

Documents"

" Construction

DOCUMENTS:

mean

shall

final

the

plans,

specifications, drawings, documents and diagrams submitted by the Consultant pursuant to Article 2. 2
and

Schedule " A" attached hereto.

I,

by

the

Consultant

approved

authorized

representative,

performance

Amendments

amount

( or

Ordinance,

authorizing
adjustment

be

by

or

the

other

as

25, 000. 00),

specified

as

thereof, or an
shall

25, 000. 00)

City,

approved

City

such

the

Manager if
amount

amended).

Even

Amendment"

" Contract

1. 16 CONTRACT AMENDMENT:

as

in the fees

are

may

be

for

in

Project

the

or

specified

the

written

signed

the

by the City' s duly

method

dates,

as

order to the

manner

and

applicable.

of

Contract

if they exceed twenty-five thousand dollars

twenty- five

Contract

and

and/ or completion

Commission,

they

mean

in this Agreement,

change

City

shall

by

thousand dollars ($ 25, 000. 00) or less in

the

Amendments

City
for

of

less

Miami
than

Beach

Procurement

twenty- five

thousand

the City Manager shall retain the right to seek and obtain concurrence of the City

Commission for the approval of any such Contract Amendment.

1. 17 ADDITIONAL SERVICES: " Additional Services" shall mean those services described in Article
5 herein,

which have been duly authorized in writing by the City Manager prior to commencement of

same.

1. 18 WORK: " Work"

to the

shall mean the work to be performed on the Project by the Contractor, pursuant

Documents,

applicable

equipment,

materials,

and

completed

whether

or

provided,

services

or

to

partially

be

provided,

by

includes labor and

and

completed,

Contractor to fulfill its

the

obligations.

1. 19 SERVICES:
Consultant

labor

and

" Services"

pursuant

materials,

mean

shall

to this Agreement,

the

to

be

whether completed or

services

equipment and

services

provided,

or

performed

partially

to be

on

Project

the

completed,

by the

and includes other

by Consultant to fulfill its

provided,

obligations herein.

BASE BID: " Base Bid"

1. 20

shall mean the elements contained in the Construction Documents

recommended by the Consultant and approved by the City as being within the Construction Cost
Budget

pursuant

shall not

1. 21

to the Statement

of

Probable Construction Cost

provided

by

Consultant. " Base Bid"

include " Additive Alternates" or" Deductive Alternates".

SCHEDULES: " Schedules"

shall mean the various schedules attached to this Agreement

and referred to as follows:

Schedule A Scope of Services.

Schedule B Consultant Compensation:

Services,

and

The schedule of compensation to the Consultant for Basic

for Reimbursable Expenses,

as

defined,

plus

any Additional Services,

as submitted by

the Consultant and approved by the City.

Schedule C

Hourly Billing

The schedule of Hourly Compensation Rates to the

Rate Schedule:

Consultant as submitted by the Consultant and approved by the City.

Schedule D Project Schedule.

Schedule E

General Conditions of the Construction Contract

Schedule F Insurance and Sworn Affidavits

Schedule G Best Value Amendment

1. 22

SCOPE OF SERVICES: " Scope

Schedule " A", together

with

of

Services" shall mean the Project Scope as described in

the Basic Services

and

described in Articles 2 and 5, respectively herein.

any Additional Services

approved

by

the

City,

as

ARTICLE 2. BASIC SERVICES

The Consultant

Basic Services for the Project

provide

shall

forth hereafter.

as set

The Services for

this Project will be performed by the Consultant upon receipt of a written Notice to Proceed issued by
the

Manager,

City

his designee,

or

separate

Notice to Proceed

attached

Schedule " A"

bidding/ award,
A ", Scope

Services,

of

The Consultant

warrants

and

laws,

shall

building

which

Miami- Dade
rules and

and

five ( 5) Tasks ( inclusive

that it is knowledgeable

the Project is located,

of

it

as

codes,

including,

The Consultant
may be

design,

planning,

local

agrees

rules

to its Services,

and

regulations

ordinances and codes (

rules

to comply

foregoing,

and

consultants,

relates

of which

and

with

amended or adopted at

to the

changes

of

as described in attached Schedule

other

and

Florida Statutes, Administrative

known pending

Task, as defined in

the Construction Contract ( Schedule " E").

of

Consultant,

regulations.

effect, and as

limitation, any and all of consultant' s responsibilities

subconsultants

with

coordinate

County),

in

without

forth in the General Conditions

regulations.

regulations now

account all

commencement of each

of

consist

shall

including,

and

Proceed.

Notice to

the

Scope of Services".

Services

codes

City

to the

jurisdictions in

for

required

countersign

shall

construction administration and additional services)

and obligations, as set

applicable

entitled "

Basic

The Consultant' s

be

shall

Consultant

and

it

represents

all

and

applicable in the

City of Miami Beach

regulations

all such

to

conform

laws,

including,
codes,

Federal

rules, and

any time, and shall further take into

should

reasonably be

aware.

The

Consultant shall insert the provisions of all required laws, codes rules and regulations into the Contract
Documents.

The Consultant expressly

agrees

that

all

of

its duties,

services

and

responsibilities

under this

Agreement shall be performed in accordance with the standard of care normally exercised in the
design

of

projects

of

this

nature

in

South

Florida.

In

addition,

Consultant

represents

that

it

is

experienced and fully qualified to perform the Services contemplated by this Agreement, and that it is
properly licensed

pursuant

to the

applicable

laws, rules and regulations to perform such Services.

Consultant warrants that it shall be responsible for the technical accuracy of its work, including without
limitation the Design Documents contemplated in Section 2. 1 below and the attached Schedule " A".

2. 1

PLANNING SERVICES:

Consultant

shall

prepare

Planning

services,

Scope of Services".

as

noted

in

attached

Schedule " A" ( Task 1)

entitled

2. 2

DESIGN SERVICES:

Based

on

the

Planning documents

approved

Design Documents,

as noted

in

attached

developed

Section 2. 1,

under

Schedule " A", ( Task 2)

Consultant shall prepare

entitled " Scope

of Services"

2. 3 BIDDING AND AWARD SERVICES:

Consultant
entitled "

bidding

provide

shall

and

award

noted

as

services

in

attached

Schedule " A" ( Task 3)

Scope of Services".

2. 4 CONSTRUCTION ADMINISTRATION SERVICES:

Consultant

Task 4)

shall

furnish

entitled "

construction administration services as noted

in

attached

Schedule " A"

Scope of Services".

2. 5 ADDITIONAL SERVICES:
If

required

so

approved

by

Schedule " A", ( Task 5)

attached

2. 6

and

City, Consultant shall provide Additional Services as noted in

the

entitled " Scope

of Services".

RESPONSIBILITY FOR CLAIMS AND LIABILITIES: Approval by the City shall not constitute nor

be deemed a release of the responsibility and liability of the Consultant, its employees, subcontractors,
agents

specifications

assumption

drawings,

for the

consultants

and

or

other

of such

accuracy

documents

responsibility
or

specifications

and

by

and

services;

the

City for

documents

other

subcontractors, agents and consultants.

competency

such

defect,

error

by

prepared

designs,

their

shall

nor

of

approval
or

the

working

drawings,

be deemed to

omission

be

an

in designs, working

Consultant,

its

employees,

However, the Consultant shall be entitled to reasonably rely

upon
the accuracyY and validityY of written decisions and approvals furnished by the City and its
P
employees.

2. 7 TIME: It is

understood

that time is

of

the

essence

in the

of

completion

this Project, and in this

respect the parties agree as follows:

2. 7. 1

The Consultant

shall

perform

the Services

as

expeditiously

as

is consistent with the

standard of professional skill and care required by this Agreement and the orderly progress of the
Work.

2. 7. 2
be

The parties agree that the Consultant' s Services during all phases of this Project will

performed

attached

in

manner

to this Agreement

that
as

shall

conform

Schedule " D".

with

The

the

approved

Project Schedule, which is

Consultant may submit requests for an

the Consultant' s
parts of

made necessary by undue time taken by the City to approve

to the Project Schedule,

adjustment

submissions,

The

the Services.

and/ or excessive time taken by the City to approve the Services or

City

shall

not

unreasonably

refuse

to

approve

such adjustment( s)

to

the Project Schedule if the request is made in a timely manner and is fully justified.

In providing the Services described in this Agreement, the Consultant shall use its

2. 7. 3
best

to

efforts

maintain,

the

of

City,

a constructive, professional,

cooperative working

and others that have been contracted to perform Services

the Contractor( s),

with

relationship

behalf

on

and/ or Work pertaining to the Project. While the Services to be provided by Consultant under this
Agreement will be provided under the general direction of the City' s Program Coordinator, it is the
intent of this Agreement to allow the Consultant to coordinate the performance of all design and

construction administration to the extent such coordination by the Consultant is permitted by the
contracts for the design and construction administration.

It is further the intent of this Agreement that the Consultant shall perform its duties

2. 7. 4

in

this Agreement

under

City for any failure in its

to the

responsible

timely

competent,

professional

and

performance

manner and that it shall be

except

to the

that

extent

acts

or

omissions by the City or others make such performance impossible.

Whenever

2. 7. 5

during

the term

of

this Agreement,

others are required

to verify,

review, or

consider any work performed by Consultant, including but not limited to the design professionals,
Contractors, and other consultants retained by the City, the intent of such requirement is to enable
the Consultant to

receive

input from

professional expertise to identify any discrepancies,

others

errors or omissions that are inconsistent with industry standards for design or construction of
comparable

and

public

regulations;

City' s

inconsistent

with

applicable

laws,

codes,

ordinances,

or which are inconsistent with standards or decisions provided in writing by the

Project Coordinator.
with

consistent

are

or which

projects;

Consultant will use reasonable care and skill in accordance with and

customary

standards

professional

in

i
responding

to

items

identified

as

discrepancies, errors and omissions by others. Consultant shall receive comments from reviewers
a

via

of

set

marked-

forwarded to it in

up

timely

drawings

and

manner.

The term "

specifications.

Consultant

shall

address

comments

timely" shall be construed to mean as soon as

possible under the circumstances, taking into account the requirements of the Project Schedule.
The

2. 7. 6
for

City

review

at

its

City

shall

have the

to consulting
own

right at

engineers

expense

for that
8

or

any time, and in its sole and absolute discretion, to submit

consulting

purpose,

any

architects

or

all

or other consultants,

engaged by the

parts of the services performed by the

Consultant, and the Consultant shall cooperate fully in such review at the City' s request.

Consultant agrees to certify and warrant all estimates of Construction Cost prepared

2. 7. 7

by

Consultant.

Said certifications shall be in a form and manner as approved by the City' s Project

Coordinator.

Consultant

2. 7. 8
Consultant

Statement

generated

best judgment

Consultant' s

to

represents

as

that

City

all

evaluations

the

of

City' s

Project

Budget,

of

Probable Construction Cost, and detailed estimates represent

design

professional

familiar

with

the

industry.

construction

Consultant cannot and does not guarantee that bids or negotiated prices will not vary from any
estimate of Construction Cost or evaluation prepared or agreed to by Consultant.

Consultant

2. 7. 9

agrees

that,

professional service which, under

or

form

other

of

legal

Services

the

when

Florida Statutes,
to

entitlement

be

provided

license,

requires a

such

practice

to

hereunder

relate

to

certification of authorization,

it shall employ and/ or retain only

services,

qualified personnel to provide such services.

Consultant

2. 7. 10

agrees

to employ

and

designate in writing,

within

five ( 5) calendar days after

receiving its initial Notice to Proceed, a qualified licensed professional to serve as the Consultant's
project

manager (

authorized

herein

after

and responsible

to

to

referred

act on

as "

behalf

Project Manager"). The Project Manager shall be

of

Consultant

with respect

to

directing,

coordinating

and administrating all aspects of Services to be provided and performed under this Agreement.
The person selected by Consultant to serve as Project Manager shall be subject to approval and
acceptance

Replacement (

by City.

including

reassignment)

of said Project Manager shall not be

made without the prior written approval of the City.

Consultant

2. 7. 11
such

from

employed

City,
or

agrees,

to

within

promptly

retained

by

fourteen ( 14) calendar days of receipt of written notice to do

and

remove

Consultant,

or

replace

any

Project

Manager,

subconsultant

or

or

any

other

subcontractors

personnel

engaged

by

Consultant, which request may be made by City with or without stating its cause.
2. 7. 12
services

Consultant herein

that

will

be

represents

performed

and

to

City

that it has

pursuant

expertise

to this Agreement.

in the type of professional

Consultant

agrees that all

Services to be provided by Consultant pursuant to this Agreement shall be subject to City' s review
and approval and shall be in accordance with the generally accepted standards of professional
practice

in the State

of

Florida,

as well as

in

accordance with applicable published

laws,

statutes,

regulations and requirements of any governmental agencies having

rules,

codes,

ordinances,

jurisdiction over the Project or the Services to be performed by Consultant hereunder. In the event
of

conflicts

any

in these

Consultant shall notify City of such conflict and utilize its

requirements,

best professional judgment to advise City regarding resolution of each such conflict.

Consultant

2. 7. 13

to divulge, furnish

not

agrees

or make

available

to any third

person,

firm or

organization,

without City' s prior written consent, or unless incident to the proper performance of

Consultant' s

obligations

such

information has been properly

to be

rendered

by

or in the course of judicial or legislative proceedings where

hereunder,

subpoenaed,

Consultant hereunder,

and

any non- public information concerning Services

Consultant

shall

its

require

employees,

agents,

subconsultants and subcontractors to comply with the provisions of this paragraph.

The City and Consultant acknowledge that the Scope of Services does not delineate every

2. 7. 14

detail

and

task

minor work

required

to be

performed

by

Consultant to

complete

the Project. If,

during the course of the performance of the Services contemplated in this Agreement, Consultant
determines that work
opinion,

outside

the level

work

manner, and

obtain said

level

addressed

originally

of

consent

of effort,

shall

must

comply

anticipated,

which

is, in the Consultant' s

whether or not the Scope of Services

notify the Project Coordinator, in writing,

with

written consent,

in a timely

before proceeding with the work.

Contract Amendment processing

requirements

as

If Consultant proceeds with additional Services without notifying and

the Project Coordinator,

said work shall be deemed to be within the

and deemed included as a Basic Service herein, whether or not specifically

in the Scope

of

Services.

or approval

by

the

authorization

the Project

complete

prior to issuance of any written authorization to proceed with Additional

in Article 1. 16,

Services to Consultant.

original

effort

to

Project Coordinator' s

The Project Coordinator

obtaining the

of

performed

items, Consultant

identifies the

outlined

be

should

City

to

Notice to the Project Coordinator does not constitute

perform

the

work.

Performance of work by Consultant

outside the originally anticipated level of effort without the prior written consent of the City shall be
at Consultant' s sole risk,

Consultant

2. 7. 15
pertinent

to

the

correspondence

shall establish and maintain

Project.
for

City

Consultant

to file in its

shall

filing

files

provide

system.

In

of

City

documents, letters,
with

addition,

copy

of

reports, plans, etc.

applicable

Project

Consultant shall provide electronic

Project document files to the City, at the completion of the Project.

2. 7. 16
under

It is further the intent of this Agreement that the Consultant shall perform its duties
this Agreement in

competent,

10

timely

and

professional

manner

and

that

it

shall

be

any failure

City for

to the

responsible

its performance except to the extent that acts or

in

omissions by the City or others make such performance impossible.

In the event Consultant is unable to timely complete the Project because of delays

2. 7. 17

resulting from untimely review by City or other governmental authorities having jurisdiction over
the

Project,

or

such

delays

which

are

caused

by factors outside the control of Consultant,

Consultant shall provide City with immediate written notice stating the reason for such delay and a
City,

revised anticipated schedule of completion.

documentation

other

as

the

City

may.

upon review of Consultant' s submittal and such

may grant a reasonable extension of time for

require,

completion of the Project and may provide reasonable compensation, if appropriate.

The Consultant

2. 7. 18

covenants with

the

City

to furnish its Services hereunder properly, in

accordance with the standards of its profession and in conformance with applicable construction,

building
laws,

health

and

codes

and

other applicable

Federal, State

and

local

rules,

regulations

and

of which it should reasonably be aware, throughout the term of this Agreement. The City' s

participation in the design and construction of the Project in no way relieves the Consultant of its
professional duties and responsibilities under applicable law and under the Contract Documents

ARTICLE 3. THE CITY' S RESPONSIBILITIES

3. 1

The City shall designate in writing a Project Coordinator to act as the City' s representative with

respect

to the

services

to be

rendered

Coordinator). The Project Coordinator

under

shall

this Agreement ( herein after referred to as Project

have authority to transmit instructions, receive information,

interpret and define City policies and decisions with respect to Consultant' s Services on this Project.
However, the Project Coordinator is not authorized to issue any verbal or written orders or instructions
to Consultant that

would

have the

effect, or

be interpreted to have the

effect,

of modifying or changing

in any way whatsoever, unless approved by the City (Manager and/ or City Commission in compliance
with Article 1. 16 requirements, including but not limited to the following:

a)

The Scope of Services to be provided and performed by Consultant hereunder;

b)

The time the Consultant is obligated to commence and complete all such Services; or

c)

The amount of compensation the City is obligated or committed to pay Consultant.

3. 2 The City shall assist Consultant by placing at Consultant's disposal all information that the City
has available pertinent to the Project, including previous reports and any other data relative to design
or

construction

of

the Project.

It

shall

be

fully

understood

that

City,

in making

such

reports,

site

information,

and documents available to the Consultant is in no way certifying representing and/ or

as

warranting

to the accuracy

or completeness

of such

data.

Any conclusions or assumptions drawn

through examination thereof shall be the sole responsibility of the Consultant and subject to whatever

measure it deems necessary to final verification essential to its performance under this Agreement.
Additional Services required due to inaccurate, incomplete or incorrect information supplied by the City
may be

undertaken

the Consultant

by

as an

notify the Project Coordinator, in writing,

written consent,

before proceeding

Consultant shall

in a timely manner and obtain said Project Coordinator's

the

with

Additional Service to this Agreement.

work.

If Consultant proceeds with the Additional Services

without notifying and obtaining the consent of the Project Coordinator, said work shall be deemed to
be within the original level of effort and deemed included as a Basic Service herein.

3. 3 The City has established a Construction Cost Budget for the Project, as stated in Schedule A.
3. 4

In the

services

City' s

as

discretion, the

sole

may be

required

at

City may furnish

legal,

accounting and insurance counseling

including such auditing services as the City

any time for the Project,

may require to verify the Consultant' s applications for payment or to ascertain that Consultant has
properly

remitted

payment
P Y

due to

consultants

sub

or

vendors

working

on

this

Project for which

Consultant has received payment from the City.

3. 5

If the City observes or otherwise becomes aware of any fault or defect in the Project or non-

conformance

with

the Contract Documents,

the City shall give prompt written notice thereof to the

Consultant.

The City shall furnish required information and services and render approvals and decisions in
writing as reasonably expeditious as necessary for the orderly progress of the Consultant' s Services
3. 6

and of

the Work.

No approvals required by the City during the various phases of the Project shall be

unreasonably delayed or

withheld;

provided that the City shall at all times have the right to approve or

reject any proposed submissions of Consultant for any reasonable basis.

3. 7

The City Commission shall be the final authority to do or to approve the following actions or

conduct by passage of an enabling resolution or amendment to this Agreement.

3. 7. 1

The

City

Commission

shall

amendments or modifications

delegated to the

City

Manager

12

be the

body

to

to this Agreement,
or

consider, comment upon,

or approve any

except when noted otherwise (

his designee) in this Agreement.

i.

e.,

where

3. 7. 2

The

Commission

City

assignment, sale,

be the

body

to

consider, comment upon,

or approve any

transfer or subletting of this Agreement or any interest therein and any

made pursuant

subcontracts

shall

to this Agreement.

Assignment and transfer shall be defined

to include sale of the majority of the stock of a corporate Consultant.

3. 7. 3 All required City Commission approvals and authorizations shall be expressed by

passage of an appropriate

resolution and,

enabling

if an amendment, by the execution of an

appropriate amendment to this Agreement.

3. 7. 4 The City Commission shall hear appeals from the administrative decision of the City
Manager' s

appointed

designee( s),

upon

the Consultant' s

written request,

in which case the

Commission' s decision shall be final.

3. 7. 5 The City Commission shall approve or consider all Contract Amendments that exceed
the

or other such amount as may be

thousand dollars ($ 25, 000. 00) (

twenty five

of

sum

specified by the City of Miami Beach Procurement Ordinance, as amended).

3. 8

The

administrative

those

Manager

City

requests

authorizations

include,

without

or

for

his

designee( s)

reserved

to the

City

the

as

City' s

representative

to

whom

authorizations ( exclusive of

Commission) to the Consultant.

These authorizations shall

be

made and who shall

limitation: reviewing, approving,

reports, estimates,

serve

issue

shall

approvals

shall

or otherwise

commenting

upon

the

schedules, plans,

contracts and other documents submitted to the City by the Consultant.

3. 8. 1 The

City

Manager

to this Agreement

shall

which

are

decide, in his

professional

not otherwise

expressly

discretion, matters arising pursuant

provided

for in. this Agreement,

and

shall attempt to render administrative decisions promptly to avoid unreasonable delay in the
progress of

the Consultant' s Services.

The

Manager, in his administrative discretion,

City

may consult with the City Commission concerning disputes or matters arising under this
Agreement regardless of whether such matters or disputes are enumerated herein.

3. 8. 2 The

City

Consultant, to
provided,

Manager
reallocate

shall

be

monies

authorized,

but

not

required,

already budgeted toward

at

the

request

of the

payment of the Consultant,

however, that the Consultant' s compensation or other budgets established by this

Agreement cannot be increased.

3. 8. 3 The

City

Manager,

or

13

his designee,

shall

be the

sole representative of the City

issue

to

authorized

Schedule " A"

Notice to Proceed, as referenced in Article 2 and the attached

entitled "

Scope of Services".

3. 8. 4 The City Manager may approve Contract Amendments which do not exceed the sum
of

thousand dollars ($ 25, 000. 00) (

twenty five

the

City

of

or other such amount as may be specified by

Purchasing Ordinance,

Miami Beach

and which do not increase

as amended)

any of the budgets established herein.

3. 8. 5 The

City

Manager may, in his

discretion, form

sole

committee

or committees,

or

inquire of or consult with persons for the purpose of receiving advice and recommendations

relating to the exercise of his powers, duties and responsibilities under this Agreement.
ARTICLE 4. RESPONSIBILITY FOR CONSTRUCTION COST

4. 1 The Construction Cost Budget,

without

exceeded

Majeure,

which

as established

justifiable,

fully

is beyond the

by

and

extraordinary

control

of

the

the

parties.

City

and stated

unforeseen

in Schedule " A", shall not be

circumstances,

Force

as

such

Any expenditure above this amount shall be

subject to prior City Commission approval by passage of an enabling resolution and amendments to
the appropriate agreements relative to the Project, prior to any modification of the Construction Cost.
Provided further, however, that

even

in the

event of a

Force Majeure,

defined in Article 1. 11. the

as

City shall have no obligation to approve an increase in the Construction Cost Budget limitations
established herein, and, if such budget is exceeded the City Commission ma y, at its sole option and

discretion, terminate this Agreement without any further liability to the City.

4. 2 If the lowest bona fide base bid exceeds the Construction Cost Budget by more than five percent
5%),

the

written

Commission

approval

authorize

time'

City

of

rebidding,

shall,

at

its

sole

discretion, have any

of

the

following

options: (

1)

give

increase in the Construction Cost Budget; ( 2) reject all bids or proposals,

an

or (

if

permissible)

authorize a renegotiation of the Project within a reasonable

and terminate the Consultant' s Services for the Project covered by this
3 abandon the Project
J
O

Agreement

without

necessary to

bring

further
the

liability

award

within

Consultant in reducing the Project

required

to

reduce

services,

City; ( 4) select as many Deductive Alternatives as may be

the

Construction

as

shall

provide

many times

Cost

Budget;

or (

5)

cooperate

scope, construction schedule, and sequence of

the Construction Cost Budget.

Scope, the Consultant

rebidding

to the

as

14

such

as may be

in the event the City elects to reduce the Project

revisions

reasonably

Work,

with the

to the

requested

Construction

by

the

City,

as

Documents,
a

and

Basic Service,

provide
with no

additional cost

to the

City,

in

order

to

bring

the bids

within

five

percent (

5%) of the Construction Cost

Budget.

ARTICLE 5.

5. 1

Additional Services for this Project will only be performed by the Consultant following receipt of a

written

authorization

shall contain a

C"

ADDITIONAL SERVICES

with

an "

by

the Project Coordinator

description

to Exceed"
exceed

the Additional Services

of

Not to Exceed"

Construction Cost Budget ( if

to

prior

amount

on

commencement of same.

required; an

Such authorization

hourly fee, as provided in Schedule

Reimbursable Expenses ( if any); the amended

additional

applicable); and an amended completion

date for the Project ( if any). " Not

shall mean the maximum cumulative hourly fees allowable, which the Consultant shall not

without

specific

written

authorization

from the

City.

The " Not to Exceed" amount is not a

guaranteed maximum cost for the services requested by the City and all costs applied to such shall be
verifiable through time sheet and reimbursable expense reviews.

5. 2

The term " Additional Services"

includes services involving the Consultant or any subconsultants

whether previously retained for the Services or not or whether participating as members with Consultant
or not, subject to the City's right to previously approve any change in Consultants as set forth in this
Agreement.

5. 3

Additional Services may consist of the following:

Serving

5. 3. 1

as an expert witness

in

connection with

any

public

hearing,

arbitration

proceeding or legal proceeding unless such preparation has arisen from the failure of the
Consultant to meet the Standard of Care set forth in Article 2.

5. 3. 2

Preparing

documents for Change Orders, or supplemental Work, initiated at the

City's request and outside the scope of the Work specified in the Construction Documents,
after commencement of the construction phase.

Providing such other professional services to the City relative to the Project

5. 3. 3
which

causes

arises

from

subsequent

resulting from

error,

circumstances

inadvertence

or

and

causes (

omission

of

excluding circumstances and

the

Consultant) which do not

currently exist or which are not contemplated by the parties at the time of execution of this
Agreement.

5. 3. 4

Assistance in

connection with

15

bid

protests,

rebidding or renegotiating contracts.,

l

for

equipment

materials,

construction,

except as otherwise expressly provided

or services,

for herein.

ARTICLE 6. REIMBURSABLE EXPENSES

6. 1

Reimbursable Expenses are an allowance set aside by the City and are not in addition to the
for

compensation

Basic

Additional

of

the Project.

Consultant in the interest

Schedule " B,"

Services

and

but

include

expenditures

actual

made

by the

The Reimbursable Expenses allowance as specified in

belongs to the City and must be approved in advance by the City' s Project Coordinator.

Unused portions will not be paid to the Consultant.

All Reimbursable Expenses

pursuant

to this Article, in

in writing

by

the Project Coordinator.

submitted

by

the Consultant to the

reasonably

and

amounts

items

the

by

requested

claimed

City,

excess of $ 500,

must be authorized in advance

Invoices or vouchers for Reimbursable Expenses shall be

with

along

receipts,

supporting

and other back- up material

City, and Consultant shall certify as to each such invoice that the
as

are "

reimbursable

true

and

correct

and

in accordance with the

Agreement.

6. 2 Expenses subject to reimbursement in accordance with the above procedures may include the
following:

6. 2. 1

Expense

of reproduction,

postage and handling of drawings, specifications and other

for

the

use

of

the

Consultant

and

sub-

documents,

excluding

consultants.

Courier and postage between the Consultant and its sub- consultants are not

reproductions

office

reimbursable.

6. 2. 2

Expenses for reproduction and the preparation of graphics for community workshops

6. 2. 3

Expenses for fees for all necessary permits.

ARTICLE 7. COMPENSATION FOR SERVICES

7. 1

The Consultant

shall

be

B" for Basic Services, based

Basic Services

shall

the

City

invoice

by

be

compensated

on

the

not

to

exceed,

the " Hourly Rate Schedule"

made within

cost reimbursable fee listed in Schedule

presented

in Schedule " C." Payments for

thirty ( 30) working days of receipt and approval of an acceptable

Project Coordinator.

16

Payments

shall

be

made

in

proportion

to the

Services

satisfactorily performed in each Phase so that the payments for Basic Services for each Phase shall
not

exceed

the

progress

percentage

noted

in the Consultant' s Progress Schedule,

submitted with

each invoice. No markup shall be allowed on subcontracted Basic Services.

The

City

and

the. Consultant

Basic Services

as

that the Consultant' s fee

agree

described in the Agreement

expense allowance of$

66, 390. 00

as

and

will

be $ 348, 475. 00 for the provision of

Schedule " A" attached hereto, with a reimbursable

detailed in Schedule " B."

7. 2 Additional Services authorized in accordance with Article 5 will be compensated using the hourly
rates

forth in Schedule " C".

Request for payment of Additional Services shall be included with the

monthly Basic Services payment request noted in Article 7. 1 above.'

All

Additional

Services

commencement

amount

noted

of same,

be

must
as

approved

the

in Article 5. Under

noted

in Schedule " B"

by

Coordinator,

Project

no circumstances

shall

in

writing,

prior

to

the " Not to Exceed"

be exceeded without prior written approval from the City Project

Coordinator. No markup shall be allowed on subcontracted Additional Services.

7. 3 Reimbursable Expenses,
noted

in Schedule " B" (

be included

with

as

defined in Article 6,

approved at $

shall

be

paid

up to the " Not to Exceed"

amount

24, 390. 00 Request for payment of Reimbursable Expenses shall

the monthly Basic Services payment request

noted

in Article 7.

Proper backup must

be submitted with all reimbursable requests. No markup or administrative charges shall be allowed on
Reimbursable Expenses.

7.4 The City and the Consultant agree that:

7. 4. 1 If the scope of the Project or the Consultant' s Services is changed substantially and

materially, the amount of compensation may be equitably adjusted by mutual agreement of

the parties.

7. 4. 2

Commencing

C" may be
Index issued

adjusted

by

on

January

1,

2009 the Hourly Billing Rate Schedule shown in Exhibit

annually based

the U. S. Department

upon
of

the Miami Fort Lauderdale Consumer Price

Labor, Bureau

of

Labor Statistics. Such adjustment

shall be calculated by multiplying the ratio of the April index divided by the previous year' s

index by the Hourly Rate Schedule to define the new Hourly Rate Schedule. The maximum
increase will be limited to three percent (3%).

17

7. 5 No retainage shall be made from the Consultant' s compensation on account of sums withheld
from payments to Contractors.

7. 6 Method

Billing

of

monthly basis in

timely

Payment. With

and

manner.

to

respect

These billings

Services, Consultant shall submit billings on a

all

shall

the

identify

the

nature of

work performed;

the

total hours of work performed by employee category and the respective hourly billing rate associated
with

the

utilizing the

accomplished
shall also

City
such

is

category from the

employee

itemize

required

lump

sum method,

and summarize

When

Reimbursable.

the

percentage of completion shall

Reimbursable Expenses

for Reimbursable Expenses,

In the event subconsultant work is

Rate Schedule.

Hourly

be identified.

Billings

by category. Where written approval of the

a copy of said approval shall accompany the billing for

Consultant shall provide backup for past and current invoices

requested,

that records hours for all Services by employee category and reimbursable by category.

7. 7 The

City

pay Consultant

shall

thirty ( 30) working days from receipt of Consultant's proper

within

statement.

7. 8 Final payment of the Consultant upon Project completion must be approved by the Mayor and
City Commission.

ARTICLE 8. CONSULTANT' S ACCOUNTING RECORDS

Consultant

8. 1

shall

keep

such

records

and

accounts

require

and

and

any

all

Consultant and

subconsultants to keep such records and accounts as may be necessary in order to record complete
and

correct

Consultant

entries

after

the

to

to be

expects

all reasonable

as

times for

completion

hours

personnel

Project,

and

any expenses for which

All books and records relative to the Project will be available at

reimbursed.

examination and audit

of all work

to the

charged

to be

by City

performed

and shall

pursuant

be kept for

a period of

to this Agreement.

three ( 3)

years

Incomplete or incorrect

entries in such books and records will be grounds for City' s disallowance of any fees or expenses
based

upon such entries.

All books

to Chapter 119, Florida Statutes,

ARTICLE 9.

9. 1

Electronic files

specifications,

of

the

City

of

all

and records which are considered public records shall, pursuant

be kept by Consultant in accordance with such statutes.

OWNERSHIP AND USE OF- DOCUMENTS

documents,

investigations

upon completion,

including, but

and studies completed or

termination,

18

not

limited to, tracings, drawings,

partially

or abandonment of

completed,

the Project.

estimates,

shall become the property

Consultant shall deliver the

li

above

documents to the

Agreement,

City

termination or

or

thirty ( 30)

within

abandonment of

days

of completion of

the Project, or termination of this

the Project. ( Reference

attached

Schedule " A",

entitled

Scope of Services" for additional requirements).

Any re- use of documents by City without written verification or adaptation by Consultant for the

9. 2

specific purpose intended will be without liability to Consultant.

ARTICLE 10. TERMINATION OF AGREEMENT

The

10. 1 Termination For Lack Of Funds.

is

City

governmental

entity

is subject to the

and

appropriation of funds by its legislative body in an amount sufficient to allow continuation of its
performance

lack

in

accordance with

of adequate

the terms

this Agreement. In the event there is a

and conditions of

the Project, the Project may be

funding for

abandoned

or

terminated,

and the City

may cancel this Agreement as provided for herein without further liability to the City.
The City may terminate this Agreement for cause in the event that the

10. 2 Termination For Cause.

Consultant ( 1)

violates

provisions

any

of

this Agreement

or

performs

same

in bad faith

or (

2)

unreasonably delays the performance of the Services or does not perform the Services in a timely and
satisfactory
cause,

manner, upon written notice

the Consultant

shall

be first

to the Consultant.

granted a

In the case of termination by the City for

thirty ( 30) day cure period after receipt of written notice

from the City.

10. 2. 1 In the
option

and

this Agreement is terminated

event

additional cost

the

City

for

cause,

the

City,

at its sole

may take over the Services and complete them by contracting with

discretion,

or otherwise. In such event, the Consultant shall be liable to the City for

another consultants

any

by

incurred

by

the

City

due to

such

termination. " Additional Cost" is defined

as the difference between the actual cost of completion of such incomplete Services, and the
cost

of

of

completion

such

Services

which

would

have

resulted

from

payments

to the

Consultant hereunder had the Agreement not been terminated.

10. 2. 2 Payment only for Services satisfactorily performed by the Consultant and accepted by

the City prior to receipt of.a Notice of Termination, shall be. made in accordance with Article 7
herein

and

the

City

shall

have

no

further

liability

for

compensation,

expenses or fees to the

Consultant, except as set forth in Article 7.

10. 2. 3 Upon

receipt

of

written

19

Notice

of

Termination,

the

Consultant

shall

promptly

assemble and submit

including

documents,

to the

City,

drawings,

herein

as provided

calculations,

or as required

specifications,

in the

written notice, all

and

correspondence,

all

other

relevant materials affected by such termination.

10. 2. 4 In the

event of a

for Services

1)

not

termination for

cause,

no payments to the Consultant shall be made

performed and (

satisfactorily

2)

for assembly of submittal of documents,

as provided above.

The

10. 3 Termination For Convenience.

Cause,

forth herein,

as set

or

any

in its

when

penalty,

sole

provisions

other

terminate this Agreement, at its sole

City, in addition to the rights and options to Terminate for

option, at

discretion it deems

any time, for

such

convenience, without cause and without

termination is in the best interest

to Consultant, in writing, fourteen ( 14) days

notice

forth in this Agreement, retains the right to

set

to termination.

prior

of

the

City,

upon

In the event City terminates

Consultant' s services for its convenience, as provided herein, Consultant shall be compensated for all

Services rendered up to the time of receipt of said written termination notice, and for the assembly and
submittal

the

City

to the

City

have

shall

of

documents for the Services

further

no

liability for

performed,

compensation,

in accordance with Article 7 herein, and

expenses or fees to the Consultant, except as

set forth in Article 7.

10. 4 Termination For Condition Precedent. The

City, in addition to the rights and options to Terminate

for Cause and/ or Terminate for Convenience, as set forth herein, or any other provision set forth in this
Agreement,

Second

Inc.,
does

retains

Closing"

the

as

right

defined in Section 8. 1(

Partners, LLC.,

Purdy

not occur,

the

to terminate this Agreement,

City

c)

its

sole

discretion, in the event that the

of the Agreement between Scott Robins Companies,

Partners 1919, LLC.,

Purdy

at

and

may terminate this Agreement.

1849

Purdy

Partners, LLC.,

and the City

In the event the City terminates Consultant' s

services as provided herein, Consultant shall be compensated for all Services rendered up to the time
of

receipt

of

said

termination

written

documents for the Services

further

liability

except

for

notice,

performed,

in

compensation,

and for the assembly and submittal to the City of

accordance with

expenses,

of

Article 7 herein,

fees to the

and the City shall have no

consultant,

except as set forth in

Article 7.

10. 5 Termination By Consultant.

The Consultant may only terminate this_Agreement for cause in the

event that the City willfully violates any provisions of this Agreement or unreasonably delays payment
for the Services,

upon written

notice

to the

City, thirty (

30) days

prior

to termination. In that event,

payment for Services satisfactorily performed by the Consultant and accepted by the City prior to
receipt of a

Notice

of

Termination

shall

be

made

in

accordance

with

Article 7 herein. In the case of

20

termination

by

Consultant for

the

cause,

City

shall

be

granted a

thirty ( 30) day cure period after receipt

of written notice from the Consultant.

10. 5. 1 The Consultant shall have no right to terminate this Agreement for convenience of
the Consultant.

10. 6 Implementation
convenience,

of

In

Termination.

the Consultant,

the

the Notice

upon receipt of

termination,

of

event

of

Termination,

for

either

shall (

1)

or

cause

for

stop the performance

of Services under this Agreement on the date and to the extent specified in the Notice of Termination;
2)

place

further

no

Project Coordinator,

that

they

relate

orders or subcontracts except

prior

to the

to their

and

including

drawings,

calculations,

by

the termination;

provided

as

submit,

assemble

herein,

specifications,

and (

5)

authorized,

in writing,

by the

3) terminate all orders and subcontracts to the extent

the Services terminated

of

performance

promptly

affected

occurrence; (

for any that may be

all

the Notice

by

of

Termination; (4)

documents for the Services

correspondence,

and

all

other

performed,

relevant

materials

complete performance of any Services as shall not have been

terminated by the Notice Of Termination, and as specifically set forth therein.

10. 7 Non Solicitation. The Consultant warrants that it has not employed or retained any company or
person,
and

other than an employee working solely for the Consultant, to solicit or secure this Agreement,

that it has

to pay any company

not paid, nor agreed

other consideration contingent upon

the

execution of

or other person

this Agreement.

any fee,

commission, gift or

For breach or violation of this

warranty, the City has the right to terminate this Agreement without liability to the Consultant for any
reason whatsoever.

ARTICLE 11.

11. 1 The

Consultant

requirements

with

work

on

stipulated

this

furnished to the

a)

shall

Project

until

Professional

notify

the

term

of

this

Agreement

with

insurance

the

It is agreed by the parties that the Consultant shall not commence

satisfactory

proof

of

the

following

insurance

coverage has been

City. The Consultant will maintain in effect the following insurance coverage:

Liability

Insurance

occurrence, with a maximum

shall

throughout

comply

herein.

INSURANCE

City in writing

in

deductible

within

the

of $

amount

150, 000

of

One

Million ($ 1, 000, 000. 00)

per occurrence, $ 450,

000

aggregate.

Dollars

per

Consultant

thirty ( 30) days of any claims filed or made against the Professional

Liability Insurance Policy.

21

b)

Comprehensive General

Injury

and

operations,

Property
and

Liability

Damage

for

coverage

liability

contractual

Insurance in the
each

of $

amount

which

occurrence,

1, 000, 000. 00 Single Limit Bodily

will

include

products,

completed

The City must be named as an additional insured on

coverage.

this policy.

c)

Worker's compensation and employer's liability coverage within the statutory limits of the State of

Florida.

The Consultant

11. 2

must give

thirty ( 30)

days prior written notice of cancellation or of substantial

modifications in the insurance coverage, to the Project Coordinator.

The insurance

11. 3

equivalent,

be furnished

must

by

an

insurance company

rated

B+: VI

or

better, or its

Guide Rating Book and must additionally be furnished by insurance

according to Bests'

companies duly authorized to do business in the State of Florida and countersigned by the company' s
Florida resident agent.

Consultant shall provide to City a Certificate of Insurance or a copy of all insurance policies

11. 4

required above.

certificates

City

the

reserves

right

required

and endorsements

to

require a certified

herein

shall state

of such policies upon request.

copy

that the

City

shall

be

given

thirty ( 30)

All

days

notice prior to expiration or cancellation of the policy.

ARTICLE 12. INDEMNIFICATION

Consultant herein

agrees

to

liabilities, damages, losses

extent caused
persons

other

Article

12,

by

the

and costs,

negligence,

employed

and

indemnify

or

hold harmless the

including, but

not

City, and its officer and employees, from

limited to,

reasonable attorneys'

fees, to the

recklessness, or intentionally wrongful conduct of the Consultant and

utilized

Consultant' s

and

by

the Consultant in the

indemnification

contained

performance

herein,

shall

of

survive

the Agreement.

the

termination

This
and

expiration of the Agreement.

ARTICLE 13. VENUE

13. 1

This Agreement

shall

be

enforceable

in Miami- Dade

County,

Florida,

and

if legal action is

necessary by either party with respect to the enforcement of any or all of the terms or conditions
herein.

Exclusive venue for the enforcement of same shall lie in Miami- Dade County, Florida.

22

This Agreement
of

Florida, both

shall

be

governed

substantive and

by,

and construed

in

accordance with,

remedial, without regard

to

the laws of the State

principles of conflict of

laws. The

exclusive venue for any litigation arising out of this Agreement shall be Miami- Dade County,
Florida, if in
court.

state

court, and

District Court, Southern District

the U. S.

of

Florida, if in federal

BY ENTERING INTO THIS AGREEMENT, CONSULTANT AND CITY EXPRESSLY WAIVE

ANY RIGHTS EITHER PARTY MAY HAVE TO A TRIAL BY JURY OF ANY CIVIL LITIGATION
RELATED TO, OR ARISING OUT OF, THIS AGREEMENT.

LIMITATION OF LIABILITY

ARTICLE 14.

14. 1

The City desires to enter into this Agreement only if in so doing the City can place a limit on

City's liability for any cause of action for money damages due to an alleged breach by the City of this
Agreement, so that its liability for any such breach never exceeds the amount of the fees for Services
agreed

upon under

the terms

of

the Agreement, less any

amount( s)

paid to Consultant thereunder.

Consultant hereby expresses its willingness to enter into this Agreement with Consultant' s recovery

from the City for any damage action for breach of contract to be limited to a maximum amount of the
fee for Services agreed upon under the terms of the Agreement, less the amount of all funds actually

paid by the City to the Consultant

Accordingly,

and

notwithstanding any

other

term

or condition

of

this Agreement,

Consultant hereby

agrees that the City shall not be liable to Consultant for money damages due to an alleged breach by

the City of this Agreement in an amount in excess of the amount of fee under any this Agreement,
which amount shall be reduced by the amount actually paid by the City to Consultant for any action or
claim for breach of contract arising out of the performance or non- performance of any obligations

imposed upon the City by this Agreement. Nothing contained in this subparagraph or elsewhere in this
Agreement is in any way intended to be a waiver of the limitation placed upon City's liability as set
forth in Section 768. 28, Florida Statutes.

ARTICLE 15. MISCELLANEOUS PROVISIONS

15. 1

The laws of the State of Florida shall govern this Agreement.

15. 2 Equal Opportunity Employment Goals:

employee or applicant

sex, age,

for

national origin,

employment

for

Consultant agrees that it will not discriminate against any

work under

this Agreement because

of race, color, religion,

disability or sexual orientation and will take affirmative steps to ensure that.
23

applicants are employed and employees are treated during employment without. regard to sexual
orientation, race, color, religion, sex, age, national origin, or

not

be limited to, the

layoff

following:

upgrading, demotion

employment

for training,

selection

and

compensation;

or

disability. This provision shall include, but

including

or

transfer; recruitment advertising,

apprenticeships.

Consultant agrees to

furnish City with a copy of its Affirmative Action Policy.

Public Entity Crimes Act: In

15. 3

Florida Statutes), a

accordance with

or affiliate who

person

is

the Public

consultant,

Entity

Crimes Act ( Section 287. 133,

who has been placed on the convicted

vendor list following a conviction for a public entity crime may not submit a bid on a contract to provide
any goods or services to the City, may not submit a bid on a contract with the City for the construction

or repair of a public building or public work, may not bids or leases of real property to the City, may not
be

awarded

contract with

of

work

contractor,

as

being

subcontractor,

supplier,

or

subconsultant

under

City, and may not transact business with the City in excess of the threshold amount

the

in Section 287: 017, Florida Statutes,

provided

date

perform

or

placed on

the

convicted vendor

for Category Two for a period of 36 months from the

list.

Violation of this Section by Consultant shall result in

cancellation and may result in Consultants debarment.

No Contingent Fee: Consultant warrants that it has not employed or retained any company or

15. 4
person,

than a bona fide

other

Agreement

that it has

and

than

employee

working solely for Consultant, to solicit or secure this

not paid or agreed

bona fide

to pay any

person,

company,

working solely for Consultant any fee,

corporation,

individual or

commission,_percentage,

firm

other

gift,

or other consideration contingent upon or resulting from the award or making of this Agreement.

For the breach

employee

of

or violation

this

provision,

City shall have the right to terminate the Agreement

without liability at its discretion, to deduct from the contract price, or otherwise recover, the full amount
i
of such fee, commission, percentage, gift, or consideration.

15. 5

The Consultant represents that it has made and will make reasonable investigation of all sub-

consultants to be utilized in the performance of work under this Agreement to determine that they
the

possess

required.

skill,

knowledge and experience necessary to enable them to perform the services

Nothing in this Agreement shall relieve the Consultant of its prime and sole responsibility for

the performance of the work under this Agreement.

15. 6

The Consultant, its

all applicable

Miami Beach,

boards,

consultants, agents and employees and sub contractors,

Federal, State
and with

all

and

County

applicable

laws,

rules

the Charter, related laws and ordinances of the City of

and

regulations

bureaus and agencies as they relate to this Project.

24

shall comply with

promulgated

by

local,

state and

national

15. 7

This Agreement,

any interest herein,

or

shall

not

be

assigned,

transferred

or

otherwise

encumbered by Consultant, under any circumstances, without the prior written consent of City.
15. 8.

conversations,

parties

agree

incorporates

document

This

agreements

that there

or

includes

and

applicable

understandings

are no commitments,

all

prior

to the

negotiations,

matters

contained

correspondence,

herein; and the

agreements or understandings concerning the subject

matter of this Agreement that are not contained in this document. Accordingly, the parties agree that
no deviation from the terms hereof shall be predicated upon any prior representations or agreements
whether oral or written.

It is further

agreed

that

no modification,

amendment or alteration in the terms

or conditions contained herein shall be effective unless contained in a written document executed with

the same formality and of equal dignity herewith.

ARTICLE 16. NOTICE

16 1

All

written notices given

g

to

CityY b Y Consultant shall be addressed to:

City Manager' s Office

c/ o Assistant City Manager Tim Hemstreet

City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139

With a copy to:

Director

Capital Improvements Projects Office

City of Miami Beach

Miami Beach, Florida 33139

All written notices given to the Consultant from the City shall be addressed to:

Timothy Reedy
801 .Brickell Ave
Miami, FL 33131

All notices mailed to either party shall be deemed to be sufficiently transmitted if sent by certified mail,
return receipt requested.

25

IN WITNESS WHEREOF, the parties hereto have hereunto caused these presents to be signed in

their names by their duly authorized officers and principals, attested by their respective witnesses and
City Clerk on the day and year first hereinabove written.
CITY OF MIAMI BEACH

Attest

MAYOR

CITY CLERK

CONSULTANT

Arquitectonica International Corp.

Attest

AW
Signa

vtrvi

e/

Signature/ President

Secretary

A0
Print

Print Name

Name

2
APPROVED AS TO
FORM& LANGUAGE
R,EXECUTION

26

Attorney

Da

SCHEDULE A

PURDY AVENUE GARAGE AND RETAIL PROJECT

SCOPE OF A/ E CONSULTANT SERVICES

Arquitectonica International Corp.

CONSULTANT:

BACKGROUND

On December 10, 2008, the Mayor and City Commission approved Resolution No. 2008- 26969,

approving and authorizing the Mayor and City Clerk to execute an agreement between the City
and

Scott Robins Companies, Inc.,

Purdy

Partners, LLC.,

Purdy

Partners, LLC.,

Purdy Partners 1919, LLC., and 1849

for the purpose of purchasing air rights and certain portion of the land for

the development of an approximately 458- space parking garage with ground floor retail.

SCOPE OF SERVICES

The

Consultant

architecture,

limited to,
probable

shall

and

surveying,

conceptual

cost,

provide
as

the

engineering,

necessary, for the Project. The

drawing( s),

construction

architectural,

master

planning,

work shall

planning, survey, design development,

documentation,

permitting,

bidding l

award,

landscape

include, but not be

and

estimate( s)

and

construction

administration services for the Project.

Project Description:

The Project includes approximately 458- space parking garage with ground floor retail.

TASK 1 PLANNING SERVICES

Planning

Services

were completed under separate agreement

of

Sunset Harbor Parking Garage

Schedule A

TASK 2 DESIGN SERVICES

The purpose of this Task is to establish requirements for the preparation of Contract Documents
requires that the CONSULTANT perform a variety of forensic

for the Project. Note that Task 2. 1,

tasks to verify, to the
as-

built drawings

2. 2, discusses

extent practicable,

and

base

requirements

and

specifications

constructability and

to be

maps

for the

existing conditions and the accuracy of any available

used

for development

preparation of

engineering

reviews

drawings. Task

contract

Contract Documents, inclusive of drawings,

front- end documents. Task 2. 3,

value

the

of

to be

establishes

performed

requirements

by

others.

with

Task 2. 4,

regard to

establishes

requirements for the preparation of opinions of total probable cost by the CONSULTANT. Task
2. 5,

requirements

specifies

prior

agencies

for

of

review

to finalization. Task 2. 6,

Contract Documents

establishes

with

requirements

Contract Documents. To facilitate the implementation

of

for

jurisdictional

developing

permitting

final ( 100%)

Public Information Program, the

CONSULTANT shall provide electronic files of all Project documents, as requested by the CITY
The CONSULTANT

provide

shall

the

electronic

files for the front- end documents, technical

specifications, and construction drawings in MS- Word, AutoCAD and Adobe Acrobat file format.
Task 2. 1 -

Verification

of

Existing Conditions:

The CONSULTANT shall obtain all available

As- Built drawings, perform structural evaluation of the structures, perform a detailed topographic
of

survey

the existing Project

site.

Surveyor in the State of Florida,

Chapter 61G17- 6, FAC.

version,

with

layering

The survey shall be performed by a Professional Land

and shall meet the minimum technical standards identified in

All survey files

system

as

shall

directed

be

prepared

by

the CITY.

in AutoCAD Version 2000, or latest

As

minimum,

the survey shall

address the following:

Baseline

of

monuments.

survey

shall

be

tied

into

the

right- of- way

and

sectionalized

land

Right- of-way information shall be obtained from available records by

the CONSULTANT.

The CONSULTANT shall set benchmarks at convenient locations along the site to

be used during both the design and construction phases of the project.
An Elevation Certificate of the existing buildings.

Page 2

of

21

Sunset Harbor Parking Garage

Schedule A

CONSULTANT

The

locate

shall

topographic features that are

identify

and

visible within

the Project

improvements /

surface

existing

including but not limited

site,

to, the following:

Marking

all

of

location

corners,

property

details

and

the

of

existing

buildings

including overall dimensions and finished floor elevations.

Existing

boxes,

valve

water/

boxes, electrical pull boxes, telephone

electrical meter

fences, hydrants, etc.

cable risers,

Aboveground and underground utilities invert elevations of accessible underground

headwalls,

traffic

fence

signage

height,

material /

with

identified

individually.

and

diameter

trunk

materials

any

Materials

other

driveway

noted

side

improvements.

construction

than

greater

pavement

guardrails,

driveways,

mailboxes,

vaults,

and

culverts,

poles,

utility

manholes,

endwalls,

landscaping,

identify

concrete

wood /

utilities,

with

smaller

diameters

entire

Project

site

Landscaping

diameter

in
shall

trees,

Survey shall

materials.

6 inches

streets,

limits,

be

shall

illustrated

be
in

groupings.

Survey limits

shall

include the

and

an additional overlap to

encompass all adjoining areas potentially impacted by the Project.

Topographic survey /

Survey
or

latest,

sealed

DSM

and

copy

shall

submitted

on

24- inch

base map shall be prepared in AutoCAD Version 2000

on

Compact Disk

recordable

by 36- inch

bond

apply to the development

paper.

of

the

with

three ( 3) signed and

Note that all standards from the

survey document.

In

addition,

the

CONSULTANT shall submit 3 copies of a preliminary Draft Survey for CITY review
and

comment.

based

on

The CONSULTANT shall prepare a final survey submittal package

addressing any / all comments submitted through this review process, to

the satisfaction of the CITY. All CAD mapping shall be performed to a scale of 1: 1 in
Text size shall be 100 Leroy for a final product at

the World Coordinate System.

1= 20 units.

Upon

completion and

same

to the

following

survey base map.

an effort

Page 3

of

21

to

identify

acceptance

of

the final survey, the CONSULTANT shall forward

agencies with a request

to

mark /

identify respective utilities on the

The CONSULTANT shall coordinate this effort with each agency in

the location

of all

existing

underground utilities.

The CONSULTANT

Sunset Harbor Parking Garage

Schedule A

shall

incorporate utility

owner

markups

edits

into

The

map file.

its survey base

CONSULTANT shall contact the following entities and request that they each verify

locations of their existing improvements in the affected areas:

Florida Power and Light Company
BellSouth

Miami- Dade Water and Sewer Authority

Charter Communications ( Atlantic Broadband)

Natural Gas provider

City of Miami Beach Public Works Department

Others as deemed necessary by the CONSULTANT

The CONSULTANT shall also request information regarding any future proposed improvements
by

each

agency.

CONSULTANT

To

shall

CONSULTANT

shall

facilitate

tracking

copy the CITY

keep

of

the

progress

made

in

on all correspondence with each

accessible

readily

and

this

effort,

the

agency. In addition, the

labeled /

properly

work

collated

file

of

all

correspondence and markups provided to it by the various agencies for reference use by the
CITY and/ or CONSULTANT, during construction.

The CONSULTANT shall become familiar with the Project site through frequent site visits,
research,

and examination of

any field,

onsite,

may

have been

facilitate

the

purposes.

diligence,

or off- site

any

not

conditions

reasonably discovered.

CONSULTANT' s

These

record

access

site visits are part of

drawings,
shown or

as

applicable,

incorrectly

and shall notify the CITY of

shown on

At the CONSULTANT' s

to the

Project

site

and

or

record

request,

facilities

drawings,

the

as

CITY shall

for investigative

the CONSULTANT' s Basic Services, are considered due

and the CONSULTANT shall receive no additional compensation for such design

phase site visits and

meetings.

Provided that the CONSULTANT has conducted a good faith

investigation, the CONSULTANT and CONSULTANT' s sub- consultants shall not be responsible
or held liable for undiscovered hazardous conditions or materials.

Page 4

of

21

Sunset Harbor Parking Garage

Schedule A

Based

the

on

the CONSULTANT shall develop detailed design base maps for

data,

collected

the project. The maps shall include an overall key map and partial plans scaled at 1- inch equals
20 feet

or

scale

that better

improvements

proposed

information

the

on

final

prepare

shall

and

plan

site

CONSULTANT shall illustrate

requirements.

project

site

based on the

plan

Copies of base maps shall be distributed to CITY.

herein.

gathered

the

suits

Perform

Deliverables:

three ( 3) draft

and

to

noted

as

work

develop

final survey. Deliver

five ( 5) final signed and sealed surveys

to CITY.

See Exhibit D Project Schedule

Schedule:

Task 2. 2 Detailed Design:

drawings,

as applicable.

applicable

architectural

of all

requirements

over
as

the Project.

deemed

sections

and

irrigation

All Contract Documents are to be provided in accordance with the

and

design

engineering

standards,

and

in

accordance

the

with

local and federal regulatory agencies having jurisdiction

state,

applicable

The CONSULTANT shall use CITY standard details as provided by CITY, and

appropriate

that may be

provide

and are not

CITY

using
9 AutoCAD Version 2000

already
a

with

CONSULTANT

The

CONSULTANT.

by

required,

deems necessary, to
prepared
P

landscape,

electrical,

mechanical,

civil,

structural,

architectural,

of

consisting

The CONSULTANT shall prepare detailed design documents

provided
work

complete

software,

shall

provide

through the CITY

product.

additional

as it

standards,

All drawings shall be

or latest, with a layering system as approved

by CITY.
Technical

specifications

shall

formats.

The

Institute ( CSI)

specification outlines
a minimum of
procurement

two ( 2)
codes.

be

prepared

CITY

for Divisions 1.

shall

in

conformance

furnish

the

with

Construction

CONSULTANT

with

Specifications

standard

CITY

Any supplier listings required by specifications shall include

named supplier' s, and shall meet all applicable CITY and State of Florida
Specifications

Microsoft MS- Word" format.

shall

be

provided

to the CITY ,

and or CONSULTANT in

In addition, the CONSULTANT shall use the same software in all

project related work. The CONSULTANT shall utilize base front- end documents provided by the
CITY. The CONSULTANT

shall

edit

accordingly to

result

in

project specific

document.

Any

requirements for Supplementary General Conditions shall be subject to review and acceptance
by the CITY.

Page 5

of

21

Sunset Harbor Parking Garage

Schedule A

The CONSULTANT shall attend monthly Design Progress Meetings with CITY and/ or CMR
CONSULTANT

staff, as applicable.

progress

each

behind

schedule;

and maintain a design progress schedule in

CONSULTANT shall update the schedule and review Project status

Microsoft Project Planner.

at

shall provide,

Should the CITY determine that the CONSULTANT has fallen

meeting.

the CONSULTANT shall provide a recovery schedule that shall accelerate

work to get back on schedule.

The CONSULTANT
updated

design

shall submit

monthly invoice

requests

by

progress schedule, as requested

for its

accompanied by an

services,

the CITY. Invoices shall be prepared in a

format as provided by the CITY.

For

be

purposes of
provided

CITY

by

review

this Scope

Services,

of

the following will be considered the minimum effort- to

the CONSULTANT for establishing detail design

and

procedures,

CONSULTANT' S

milestone submittals.

responsibilities

associated

with

Note that
such,

are

discussed under Task 2. 3:

The 50% design completion stage milestone shall consist of the completed
products

work

survey,

of

improvements identified in

details.
and a

scale

at

views,

of

1- inch

the

outlined

previously

approved

equals

Tasks,

BODR, illustrated in

with
plan

all

proposed

and

elevation

20 feet, and with applicable sections and

In addition, the CONSULTANT shall include draft technical specifications

draft

schedule of prices

prospective contractors with

bid ( bid form)

the

CONSULTANT' S " Budget" level

American Association

of

submittal.
opinion

Cost Engineers.

identifying the items to be bid by the

Also, this submittal shall include the

of

probable

cost

as

defined by the

The CONSULTANT shall submit the

50% design to the Historical Preservation Board ( HPB) for full design approval.

Comments from the HPB and/ or Planning Department shall be incorporated into
the 90% design submittal.

Prior to the

preparation

of

the 50%

design

completion

stage

drawings, the

CONSULTANT shall incorporate changes to its design based upon its existing
as-

built /

existing conditions verification efforts and review comments received,

as noted in Task 2. 3 below.

Page 6

of

21

The 100%

design completion stage milestone shall consist of a final construction

document

set

including

the front- end

documents ( general

and

supplemental

Sunset Harbor Parking Garage

Schedule A

technical

conditions),

proposed

construction

review with

be

to

Prior to the

submittal.

the

CONSULTANT

preparation of

CONSULTANT

drawings,

based

upon review comments received, as noted

defined

by

shall

provide

the American

shall

work

all

detailed

include

for the

CITY' S

the 100% design completion

incorporate

stage

the CONSULTANT

shall

conditions

special

and

restrictions,

sequencing

this

The

completed.

for

drawings

construction

and

specifications

to

changes

its

design

in Task 2. 3, below. In addition,

its " Definitive" level opinion of probable cost as

Association

Cost Engineers

of

with

this

submittal.

Documents shall also include all constructability and design review comments,

City of Miami Beach Building Department permitting pre- approval comments as

may be provided by the C ITY and/ or jurisdictional review agency.

Deliverables:

Furnish sets of design documents as requested by the CITY

pursuant to Article 6 of the Agreement.

Prepare and update project invoices and schedule tracking

spreadsheets, on a monthly basis.

Attend progress meetings with CITY staff, HPB, and CMR firm,
as applicable.

See Exhibit D Project Schedule

and
Note: The above 50%

Schedule:

completions

in

shown

calendar

100%

days

design
are

documents

contingent

upon

CITY' s reviews occurring within the timeframe allowed for final

completions of each task.

Task 2. 2. 1 Geotechnical Evaluation:

See Task 6. 4

Task

Design /

2. 3

Constructability

To verify

Review:

that

the

CONSULTANT

is in

compliance with the required BODR and CITY' s requirements, the CITY and CMR shall perform
reviews of all

completion

Project design documents,

stage

incorporate the
procure permits

Page 7

of

21

submittals.

pre- approval

Note
review

from jurisdictional

that

including
the

cost estimates, at

100%

comments

design

from the

review agencies,

the 50

completion

Building

and

stage

100% design
submittal

will

Dept. and will be used to

and/ or may be utilized to obtain pricing.

Sunset Harbor Parking Garage

Schedule A

The purpose of these reviews shall be to verify that the documents are consistent with the
These documents shall be furnished as bound 8- 1/ 2- inch by 11- inch technical

design intent.

and

specifications

drawings

full- size

by

as requested

24- inch

the CITY

by

36- inch)

and as noted

and

half

size (

11- inch

17- inch)

by

in the Task 2. 2 deliverables.

scaled

The CMR and

applicable CITY staff shall perform reviews on these documents and provide written comments
in " Excel"

spreadsheet

format) back to the CONSULTANT within the timeframes specified in

Project Schedule - Exhibit D.

Following

receipt of comments

by

the CONSULTANT,

a meeting may be scheduled between

the CITY, the CONSULTANT and CMR, to discuss the

resolved.

comment was

in

be

the

Such written memorandum shall be prepared and submitted to CITY

ten ( 10) working days

within

approval,

review /

shall

intent and review of the

The CONSULTANT shall prepare a written memorandum to address how each

comments.

for

requirements,

spreadsheet

CONSULTANT shall

format

provided

its documents to

revise

after

to

the

the

address all

The responses

review session.

CONSULTANT.

review comments

In

addition,

the

accordingly, to the

satisfaction of the CITY.

In addition, the CITY and CMR shall perform constructability reviews of the design documents
relative

based

to

value,

upon

conducted

meetings

review

50

construction

and.

with

be held

with

comments,

sequencing

as

the 60

bid format.

These reviews shall be

and

100% design

reviews.

These constructability review

the CONSULTANT, CITY, and CMR representatives to discuss

required.

restrictions will

schedule, and

design submittals received from the CONSULTANT and shall be

100%

concurrently
shall

sequencing /

be

A detailed review of CONSULTANT' s proposed construction

performed

by CITY

and

CMR

at

the 50

and

100 %

completion

stages.

The CONSULTANT shall note that the CITY and CIVIR' s review of the Contract Documents does

not relieve the CONSULTANT from its responsibility to the CITY with regard to the quality of its
contract documents.

Deliverables:

Attend

meetings

with

the CITY

and/ or

CMR

staff,

as

applicable, to review and discuss design constructability

and value comments.

Page 8

of

21

Sunset Harbor Parking Garage

Schedule A

Prepare written responses to comments made during

reviews.

Complete concurrently with Design Schedule

Schedule:

Task 2. 4 Cost Opinions: The CONSULTANT shall prepare opinions of probable construction
and

100

percent

estimate

associated

with

the 50

Level

defined

costs

for the 50

as

by

be

completion

of

stage

shall

The accuracy of the cost

be + 30% to 15% " Budget"

Cost Engineers.

The accuracy of the cost

be

percent completion stage submittals shall

defined

as

submitted

by CITY. All

supplied

percent

the 100

Definitive" Level Estimates

shall

completion stage submittal.

the American Association

estimate associated with

estimates

design

by

the American Association

of

a +

15% to 5%

Cost Engineers. All

in Microsoft " Excel" format in accordance with the template

estimates

be furnished bound in 8- 1/ 2- inch

shall

by

11- inch

size.

The

CONSULTANT shall advise the CITY immediately when the Project cost estimate exceeds the
by

the CITY.

budget

established

advise

the CONSULTANT if

alternate

bid

items to

Based upon the CONSULTANT' s cost estimate, the CITY will

portions of

satisfy existing

the

project need

budgetary

and

to be deleted, phased and/ or bid as

fiscal

constraints.

In this

effort,

the

CONSULTANT may be required to attend a series of meetings and develop alternative cost
savings options

exceed

for CITY

consideration,

the target budget.

if the estimates show that the projected project cost will

The CONSULTANT shall revise the contract documents to reflect

necessary revisions to meet budget parameters at no additional cost accordingly.

Deliverables:

Prepare opinions of probable costs at the 50 and 100%

completion stage.

Page 9 of 21

i
r

Sunset Harbor Parking Garage

Schedule A

Attend meetings with the CITY and CMR staff to review

discuss

and

includes

Task

This

estimates.

cost

development of any required cost savings alternatives, and

revision of documents to address such

implementation /

items,

as

necessary

to

meet

established

budget

parameters.

Complete concurrently with Design Schedule.

Schedule:

Task 2. 5 Community

Design Review Meeting

The CONSULTANT shall attend and participate in one final Community Design Review Meeting
CDRM) to

review

the design

residents

of said

progress and concept.

meeting.

and

notify

and

forward them to the CITY

The CONSULTANT

accordingly.

Meeting

meeting.

shall

be

The CONSULTANT shall prepare draft meeting minutes

CMR,

and

The CITY shall schedule, find location for,

shall

shall

who

prepare

scheduled

the

at

review,

provide comments and distribute,

for, attend and present its documents at this

design

100%

completion

stages.

Note that

presentation format shall consist of a brief Power Point presentation to review Project status,
plus review of actual full size plans for the project. The CONSULTANT shall provide sufficient
the meeting to

staff at

that the

address concerns

CONSULTANT

will

by

residents at

two ( 2)

plan stations.

It is anticipated

attend one Pre- CDRM meeting with CITY staff to review the

proposed format of the presentation..

Document Revisions:

Task 2. 6 -

CDRM,

CONSULTANT

the

Based upon the input provided by the residents at the

incorporate

shall

necessary

document

contract

revisions,

as

approved by the CITY.

Task 2. 7 Permitting Reviews: The CONSULTANT shall
documents

and

data

design

as

may

be

required

to

prepare applications and such

procure

approvals

from

all

such

governmental authorities that have jurisdiction over the Project. The CITY shall pay all permit
fees.

CONSULTANT

The

negotiations

with

such

shall

participate

authorities.

in

meetings,

submissions,

resubmissions

and

The CONSULTANT shall respond to comments by such

authorities within ten working days of receipt of comments unless a different time is agreed to by
CITY.

for

It is the intent of this scope of, services that the CONSULTANT be the responsible party

formally transmitting

Page 10

of

21

and

receiving

permits

to

and

from

the

respective

jurisdictional

Sunset Harbor Parking Garage

Schedule A

However,

authorities.

review of permits

CITY

from

on

all

and subsequent requests

permit

meetings

for obtaining

since the CITY will track and monitor progress on the preparation and

held

related

correspondence.

with related parties.

permits

for information,

is beyond the

the CONSULTANT shall copy the

This includes CONSULTANT generated minutes

It is recognized by CITY that the time period required

control of

the CONSULTANT, except with regard to issues

concerning the permittability of the proposed design and the CONSULTANT' s ability to respond
to

permitting

agency

requests

for information

in

timely

manner.

At the time

Project have been identified:

United States Environmental Protection Agency

U. S. Army Corps of Engineers

e

Florida Department of Transportation

Florida Department of Environmental Protection

0

South Florida Water Management District

Miami- Dade Water and Sewer Authority

6

Miami- Dade Department of Public Works

Miami- Dade Department of Health and Rehabilitative Services

Miami- Dade Department of Environmental Resource Management

The City of Miami Beach Building Department

The City of Miami Beach Planning Department
C

The City of Miami Beach Historic Preservation Board

The City of Miami Beach Public Works Department
The City of Miami Beach Fire Department

of

scope

the following governmental authorities that have or may have jurisdiction over

preparation,

Page 11

of

21

Sunset Harbor Parking Garage

Schedule A

Note that the

CITY' s failure to identify governmental authorities that have jurisdiction over

Project at this time does not relieve the CONSULTANT from the responsibility to procure all
requisite permits.

Correspond with jurisdictional authorities to establish

Deliverables:

permitting requirements.

Revise documents and respond to permitting inquiries

as required.

Attend

meetings

agency

staff,

with

as

the CITY, CMR, and permitting

to

required,

review,

discuss

and

finalize permit procurement

Complete concurrently with the design schedule

Schedule:

Task 2. 8 The CONSULTANTs QAIQC

and

establish

maintain

an

in- house

of

Quality

Design Documents: The CONSULTANT shall

Assurance /

Quality

Control ( QA/ QC)

program

designed to verify and ensure the quality, clarity, completeness, constructability and bid ability of
its contract documents. To this end, the CONSULTANT shall provide the CITY and CMR with a

written narrative detailing its QA/ QC program tasks and how it is to be implemented over the
course of

this Project. The CITY, at its discretion,

may require that the CONSULTANT attend

meetings to review the status and present results of its QA/QC efforts.
TASK 3 BIDDING AND AWARD SERVICES

The Tasks below address the level of service to be performed by the CONSULTANT.

The CONSULTANT' s

services shall

include,

Review / Assist the CITY in the

but not be limited to, the following.

preparation

of

Request for Qualifications ( RFQ) for a

Construction Manager at Risk Firm ( CMR) to provide Pre- construction services.

Review /

evaluate bids received in response to the RFQ solicitation

Participate in negotiation meetings with the selected CMR

Review CMR' s cost

Page 12

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21

proposal( s) /

Guaranteed Maximum Price ( GMP)

Sunset Harbor Parking Garage

Schedule A

Construction Contract Document Review: The CONSULTANT shall assist the

Task 3. 1 -

bidding

CITY in the
and

bids

evaluate

the

and award of
and

The CONSULTANT shall advise

construction contract.

the GMP Amendment( s) as required in the CMR' s Pre- Construction

Services Agreement, Agreement

Exhibit E incorporated herein

as

attached

by

reference.

The

contract documents prepared by the CONSULTANT shall be transmitted to the CITY' s Risk
Legal and Procurement Departments for verification of appropriate insurance,

Management,

form

and

bonding capacity

The CONSULTANT shall assist the CITY in this

requirements.

process by providing three copies of each Construction Contract Document and participating in
meetings, submissions, resubmissions and

discussions

with

these departments, as necessary.

The CONSULTANT shall respond to CITY comments within ten calendar days of receipt of
unless

comments

different time

schedule

is

to

agreed

by

the CITY.

The CONSULTANT' s

compensation includes meeting with these departments.

Task

Bid

3. 2 -

Document
of

Delivery:

contract

The

documents,

CONSULTANT

including digital

shall

plot

provide

files,

as

the

CITY

required,

with

for the

reproducible,

sets

preparation of

Request for Qualifications ( RFQ) for a Construction Manager at Risk Firm ( CMR)

to

Pre- construction

provide

reproducible,

subcontract

camera

ready,

bid document

services.

The CONSULTANT shall provide CITY and CMR with

Construction Documents, as required, for

sets of permit approved

delivery. These documents shall include responses to all comments

obtained during permit reviews and shall incorporate all corrections. required by the permitting
agencies.

Task 3. 3 - Pre- Bid Conference:

The CITY shall conduct one pre- bid conference for the CMR

CMR shall conduct one or more pre- bid conferences for subcontractor selection.

selection.

CONSULTANT shall

attend

the

pre- bid

conference

for CMR

CONSULTANT shall

selection.

review bids and advise the CITY accordingly.

Task

3. 4 -

Addenda

Issuance:

The

CONSULTANT

shall

provide,

through

CITY,

timely

responses to all inquiries received by the CITY from prospective bidders. These responses shall
be

prepared

as

CONSULTANT
each shall

written

addenda,

with

of

be transmitted to the CITY

21

such

addenda

as

provided

to the

by CITY. These queries and responses shall be documented and a record of

on a same

necessary addenda as requested by CITY.

Page 13

the format for

day

basis.

The CONSULTANT shall prepare

Sunset Harbor Parking Garage

Schedule A

Task 3. 5 CMR Bid Evaluation

to CMR

and

who in turn shall evaluate bids for completeness and

to the CONSULTANT,

selection

CITY will forward Bids received pursuant

Bid Opening:

full responsiveness and shall make a formal written recommendation to the CITY regarding the
award of

the

Task 3. 5. 1

contract.

Non- technical bid requirements shall be evaluated by others

Sub- contractors) Bid Evaluation

and

Bid Opening:

Bids shall be evaluated

by the CMR who shall make a recommendation to the CITY regarding the acceptance and
award

of

bids

to

and

responsive

qualified

responsible

Copies

subcontractors.

of

sub-

contractors bids will be provided to CONSULTANT for review and comment, as applicable.

This scope of services includes no allowance for the CONSULTANT' s time to assist the CITY in
the

event

required

of

in

bid

the

To the proportionate extent the CONSULTANT's services are

protest.

event

of

bid

protest,

to

due

direct

action

or

lack

thereof

the

by

CONSULTANT, the CONSULTANT shall participate in such activities at no additional cost to the
CITY.

Task

3. 6

Guaranteed

Maximum

Construction

Price ( GMP)

Contract

Award:

The

CONSULTANT shall provide sets of Construction Contract Documents for. execution by CITY
and

CMR

five ( 5)

within

calendar days of request by the CITY pursuant to Article 6 of the

Agreement.

Task 3. 7 Aspreconstruction

Contract

Bid

conference,

the

Documents:

After

CONSULTANT

GMP

shall

contract

prepare

award

As- Bid

and

prior to the

construction

contract

documents, which incorporate the following items:

CMR' s

submittals,

but

including

not

limited to, bid

proposal,

insurance, licenses,

etc.

Amend /

modify

front- end

documents

and /

or

technical

specifications

to

incorporate changes made via contract addenda.

Revise
via

construction

contract

comments.

Page 14 of 21

documents to include

addenda

as

well - as

the

modifications /

previously

revisions incorporated

incorporated

permit

review

Sunset Harbor Parking Garage

Schedule A

The

CONSULTANT

prepare

shall

for distribution to CITY

requested,

As- Bid

within

Construction

ten ( 10)

Documents

and

reproduce

sets,

as

calendar days after City Commission approval

contract execution.

Deliverables-

Attend and participate in Pre- bid conferences and bid openings.

Respond to questions from prospective bidders and prepare Addenda

for distribution by others.

Prepare recommendation of award letter.
Prepare As- Bid Contract Documents, reproduce sets and forward to

CITY.
See Exhibit D Project Schedule

Schedule:

TASK 4CONSTRUCTION ADMINISTRATION SERVICES

The CONSULTANT
of

shall

perform
p

the followingg tasks related to the construction administration

These tasks shall be performed for the duration of the construction of the

the Project.

Project.

The CONSULTANT

shall

between the CITY, CMR,

follow uniform
and

procedu res and guidelines

g

CONSULTANT

staffs.

for managing
g g

the interface

The CITY shall provide the CONSULTANT

with sample management manuals, as required.

CONSULTANT's compensation is based upon a construction period of approximately 8 months.

Task

4. 1

construction

meeting

upon

conference

minutes

that the CITY

Conferences:

Pre- Construction

to

will

for the

Project.

The

The

CONSULTANT

CONSULTANT

all attendees and other appropriate parties.

issue

receipt and approval

shall

shall

attend

prepare

and

one

pre-

distribute

At this meeting, it is anticipated

Limited Notice to Proceed. A final Notice to Proceed shall be issued

of a construction

schedule,

schedule

of values, submittal

schedule

and procurement of all applicable construction permits from the CMR.

Deliverables:

Attend and participate in one pre- construction conference

for the project and prepare meeting minutes.

Page 15

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21

Sunset Harbor Parking Garage

Schedule A

As

Schedule:

scheduled

by

CITY

after

receipt

of

Task 4, Notice to

Proceed.

Task 4. 2 Bi- Weekly Construction Meetings:

purpose of

these

the CMR

meetings shall

contract

and

submittals

with

meetings

construction

and

be to

document

The CONSULTANT shall attend bi- weekly

applicable

review

the

CITY

as

representatives,

required.

shop drawing

status of construction progress,

clarifications

and

interpretations.

In

The

addition,

the

CONSULTANT shall review the CMR furnished two-week look ahead work schedule to allow for
proper coordination

discussion

The
The

visits

may include
shall

be

work efforts.

necessary

of construction

meetings

site

of

issues,

These meetings shall also serve as a forum for

potential changes /

to visually

site visits

and

separate

conflicts and any other applicable matters.

observe / address construction related concerns.

distinct from the "

Specialty Site Visits"

discussed under

Task 4. 6. The CONSULTANT shall prepare and distribute meeting minutes to all attendees and
other appropriate parties.

Attend and participate in Bi- weekly construction progress

Deliverables:

meetings, as required, and prepare meeting minutes.

Bi- Weekly throughout the project duration.

Schedule:

Clarification ( RFIs / CDCs): The

Task 4. 3 Requests for Information / Contract Document

CONSULTANT
interpretation

shall receive,

of

and process all

log

design issues

or

RFIs / CDCs.

Whenever an RFI involves the

design intent, the CONSULTANT shall prepare a written

response within the timeframe specified in the construction contract and return it to the CMR.
The CONSULTANT
addition,

shall

distribute

and

update

the RFI

log

at

each

progress

meeting.

In

the CONSULTANT may be requested by the CITY to prepare and forward CDCs

should certain items within the contract documents require clarification.

Deliverables:

Respond to those RFI' s that involve design interpretations

and return

to CMR

and

CITY' s

office.

Prepare RFI log and

distribute at meetings.

Issue CDCs as required.

Schedule:

Ongoing throughout project construction duration.

Page 16 of 21

i.

Sunset Harbor Parking Garage

Schedule A

Task

CONSULTANT

from the CMR,

distribute

and

shall receive,

and

report

work,

inadvertent

requested

Amendment( s)

by

and

the

the

merit of

schedule.

the

log

CITY

at each

The

Schedule:

The CONSULTANT shall

meeting.

progress

meeting.

Changes may be the

request,

in the contract documents or additional

CONSULTANT

or

Regardless

Commission.

CONSULTANT

progress

at

betterment) issues

the

by

City

and/ or

interferences identified by the CMR during the routine progress

omissions

improvements

evaluate

to the CITY

such,

result of unforeseen conditions,

of

Cost

log, evaluate all requests for project cost and/ or schedule changes

the Change Order

update

Construction

to

Changes

for

Requests

4. 4

of

after

approval

of

the

GMP

the .source, the CONSULTANT shall

as well as the impact of the change in terms of project cost

shall

review claims

and /

or change order requests with CITY.

No legal claims assistance is included under this Task.

Deliverables:

Perform independent review of request for cost increase

and/ or time extension.
Coordinate

the

CITY

and participate

and

CMR

to

in

meetings, as required, with

resolve

and/ or

negotiate

the

equitable resolution of request.

Prepare

and execute change

order

documentation ( AIA

form)

Prepare and update change order log and distribute at

progress meetings.

Ongoing throughout project construction duration.

Schedule:

Task 4. 5 Processing

of

Shop Drawings: The CONSULTANT

will receive,

log and distribute

shop drawings, as appropriate, for their review. The CONSULTANT shall have 14 calendar days
or, the number of calendar

days

specified

in the

construction contract, ( whichever

is lesser) from

the date of receipt in its office, to review and return shop drawings to CMR and CITY' s office.
Deliverables:

Review Shop Drawings and return them to CMR and

CITY.

Prepare and update shop drawing log and distribute at

progress meetings.

Page 17

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21

Sunset Harbor Parking Garage

Schedule A

Ongoing throughout project construction duration.

Schedule:

The CONSULTANT shall provide specialty site visits

Task 4. 6 Field Observation Services:

by

design disciplines ( civil,

various

are

visits

site

specialty

CONSULTANT as

required

discuss,

resolve

conditions

field

of

immediate

require

as soon as possible,

Task 4. 7

hour

24

to

action,

review /

issues

notice

scope of services,

Services,

or

and

be

will

landscaping,

it is assumed that
provided

by the

as may be requested by the CITY, to review,

attendance,

and

this

of

plumbing,

Specialty site visits are assumed to include one or

the Project.

conditions

minimum

although

by

purposes

in the Scope

included

the CONSULTANTs Team

more of

that

basis. For the

on an as requested

etc...)

electrical,

mechanical,

structural,

the job

at

be

will

Attendance shall be as requested,

site.

when

provided

In

possible.

cases

where

the CONSULTANT shall make itself available in the field,

respond to necessary issues.

Deliverables:

Provide specialty site visits as required.

Schedule:

Ongoing throughout project construction duration.

Project Closeout: Upon receiving notice from the CMR advising the CONSULTANT

Project is substantially

the CONSULTANT, in conjunction with appropriate

complete,

CITY staff, shall conduct an overview of the Project. The overview shall include development of
a " punch

list"

acceptance.

shall

items

of

The CONSULTANT

develop

shall

be forwarded to the CMR for

or

completion

needing

correction

prior

to

consideration

of final

the Substantial Completion Punch list. The list

CONSULTANT shall forward copy of said

corrective action.

For the purposes of this Task, Substantial Completion shall be deemed to be

list to the CITY.

the stage in the construction of the Project where the Project can be utilized for the purposes for
which

it

was

intended,

and

where

items may

minor

not

be

fully

completed,

but all items that

affect the operational integrity and function of the Project are capable of continuous use.
Upon

notification

from the CMR that

CONSULTANT, in

conjunction with

all

remaining "

appropriate

list" items have been

punch

CITY

staff,

resolved,

the

shall perform a final review of the

finished Project. Based on successful completion of all outstanding work items by the CMR, the
CONSULTANT

limited to,
of

record

based

Page 18

on

of

shall

assist

in closing

out

the

construction

contract.

This

shall

include, but not

preparation of record drawings based on markups forwarded by CMR and certification

drawings to the

various

the CONSULTANT

21

affected

having

permitting

received

and

authorities.

reviewed

all

This certification shall be

applicable

test data,

daily

Sunset Harbor Parking Garage

Schedule A

reports,

observation

record

drawing

markups,

submittals,

change

and performed final

orders,

walk through of the completed work during substantial and final completion punch list walk
through( s).

Attend

Deliverables:-

field

meetings

to

substantial

review

and

final

completion and assist in development of the applicable

punch lists".

Schedule:

At the Substantial and Final completion of the project.

TASK 5 ADDITIONAL SERVICES

No

additional

services

envisioned

are

at

However, if

this time.

such

services

are

required during the performance of the Work such as work related to structural testing
and evaluation, structural

contract

with

prior

required

to

shall

requirements.

performance

If CONSULTANT

Services.

they

engineering,

environmental

accordance

engineering / forensic engineering,

be

Note that

any Work

of

requested

not

by

environmental evaluation,

CITY

separate

expressly

and

negotiated

in

Notice to Proceed is

required

proceeds without proper authorization,

by this Scope of

it does so at its own

risk.

TASK 6 - REIMBURSABLES

Reproduction Services:

Task 6. 1

rate

customary

for

may be

requested

CITY

the

at

reproduction

by

the CITY.

completion of

the

of

The CONSULTANT shall be reimbursed at the usual and

reports,

contract

documents

and

miscellaneous

items,

as

Unused amounts in this allowance shall be credited back to the

project.

Refer to Schedule B.

Task 6. 2 Travel and Subsistence:

Not allowed.

Task 6. 3'

Surveying:

The CONSULTANT shall arrange for and coordinate the efforts of

licensed surveyors to prepare a topographical survey within the project limits to meet the intent
of

the

approved

Page 19

of

21

project

Scope

outlined

in Task 1 -

Planning

Services

and

Task 2 -

Design

Sunset Harbor Parking Garage

Schedule A

Unused

Services.

completion of

the

in this

amounts

project.

allowance

professionally licensed

geotechnical

adequately define the soil

excavations shall

the CITY at the

be

firm to

existing

completion of

utility location

by

for the

identification

services

CONSULTANT.
project.

service,

may

be

upon

where

design.

of

purposes

the

CITY at the

Actual

test

boring /

Unused amounts shall be credited back to

CONSULTANT.

the project.

conditions

underground

to

boring / test excavations as necessary to

perform

Refer to Schedule B.

Task 6. 5 Underground Utility Verification:

underground

back

credited

The CONSULTANT shall contract the services of a

characteristics

directed

as

be

Refer to Schedule B.

Geotechnical Evaluation:

Task 6. 4 -

shall

CONSULTANT shall employ the services of an

by

approval

work

is

implemented.

to

the CITY,

be

in an effort to better identify

locations

Actual

Soft- Dig

performed.

shall

be

as

underground

directed

by

Unused amounts shall be credited back to the CITY at the completion of the

Refer to Schedule B.

Task 6. 6 Design Sub Consultants:

CONSULTANT shall arrange for and coordinate the efforts of design sub consultant expertise
as

expertise

such

requirements

consultant

is

and/ or

costs

needed

site

and

conditions.

determined

by

the

not- to- exceed

evolution

fee

is included in Schedule B, to be drawn

amount

upon

as

of

the

of

all

project

such

needed.

program

design

sub

CONSULTANT' S

compensation shall be a reimbursement of actual costs for design sub- consultants.

Minimum Drawing Requirements

The composite set of drawings to be produced shall contain sufficient information and detail to
clearly define all
and

details

shall

proposed

be to

improvements in terms
scale

sufficient

of

quantity, quality

to be legible.

and

location.

All drawings

The CONSULTANT shall propose a

drawing list to be reviewed and approved by the CITY.

Site Plans

Existing

Conditions Site

landscaping, existing

site

Survey

to include

improvements, buildings, dimensions

overhead and underground utilities, etc.

Page 20 of 21

property lines,

sidewalks,

of

buildings,

pavement

areas,

fencing, lighting,

Sunset Harbor Parking Garage

Schedule A

Demolition Clearly

Proposed
pavement

depict existing conditions to be demolished or modified.

Improvements
areas,

Clearly depict
buildings,

landscaping,

all

new

recreational

design
courts

elements

and

fields,

including

sidewalks,

fencing lighting, utility

modifications, replacements, and additions, etc.

Enlarged Site

plans -

Where necessary to clearly define Project

requirements, provide enlarged

site plans for specific areas of improvement.

Building Drawings

All

buildings to

be demolished,

renovated

or

constructed

shall

be detailed

in the Project

drawings in sufficient detail to clearly and thoroughly depict the intended improvements or
modifications

and

shall

at

minimum

Architectural, Civil, Structural, Mechanical,

include

drawings

Electrical,

of

21

all

involved

disciplines:

Plumbing, and Landscape Architecture.

Drawings shall be organized by building and by discipline.

Page 21

form

SCHEDULE B:

PROFESSIONAL SERVICES AGREEMENT BETWEEN

THE CITY OF MIAMI BEACH & STANDARD A&

E AGREEMENTS

CONSULTANT COMPENSATION

Please refer to attached schedule and see below Schedule of Payments:

Schedule of Payments
Retail ( 28%)

Planning

Services *

Garage (72%)

n/ a

655861. 60

Design Services-*

n/ a****

169, 358. 40

7, 317. 80

18, 817. 20

Construction Administration **

24, 393. 60

629726. 40

Reimbursable Allowance***

185589. 20

47, 801. 80

Bidding

and

Award Services

Historic Preservation Board / Design Review Board ( if

Note*:

required)

n/ a****

n/ a

These services will be paid lump sum based on percentage complete of each phase as

identified in the individual tasks.

Note**:

Construction Administration will be paid on a monthly basis. It is anticipated that construction

duration

will

be 15

months,

therefore,

once construction

starts

Consultant

will

be

paid $

7, 620. 00

Retail $ 2, 032. 80/ Garage $ 5, 486. 40) for 12 months.

In the event that, through no fault of the Consultant, construction administration services are required

to be extended, which extension shall be at the sole discretion of the City, the Consultant agrees to
extent

said

services

for $ 7, 260. 00 ( Retail $ 2, 032. 80/ Garage $ 5, 486. 40) per month for the duration

required to complete the Project.

Note***:

The Reimbursable Allowance belongs to the City of Miami Beach and must be approved in
advance by the Project Coordinator. Unused portions will not be paid to the Consultant.
Note****: Completed under separate agreement

28

SCHEDULE C

PROFESSIONAL SERVICES AGREEMENT BETWEEN

THE CITY OF MIAMI BEACH & STANDARD A & E AGREEMENTS

HOURLY BILLING RATE SCHEDULE

Hourly Billing Rate ( FY 2008)

Classification
Principal / Architect

of

5 D-Caper hour

Record

Principal MEP Engineer

of

per hour

Record

Q per hour

Project Manager

Ms. per hour

f sp.oaper hour

Senior Architect/ Engineer

Engineer/ Architect

Staff Engineer
Designer

I 1.()

v per hour

9.

roper hour

Civil Engineer

12s doper

CADD Operator

Ikibx per hour

hour

D00 per hour

Clerical

29

SCHEDULE D

PROFESSIONAL SERVICES AGREEMENT BETWEEN

THE CITY OF MIAMI BEACH & STANDARD A & E AGREEMENTS

SEE ATTACHED PROJECT SCHEDULE

30

SCHEDULE E

PROFESSIONAL SERVICES AGREEMENT BETWEEN

THE CITY OF MIAMI BEACH & STANDARD A & E AGREEMENTS

See attached General Conditions of the Construction Contract

31

SCHEDULE F

PROFESSIONAL SERVICES AGREEMENT BETWEEN

THE CITY OF MIAMI BEACH & STANDARD A & E AGREEMENTS

See Attached Insurance and other Sworn Affidavits.

32

SCHEDULE G
PROFESSIONAL SERVICES AGREEMENT BETWEEN

THE CITY OF MIAMI BEACH & STANDARD A & E AGREEMENTS

Best Value Amendment

The Consultant agrees to abide by all the required documentation of the City' s Performance Information
Procurement System and submit the weekly reports.

F:\ PURC\$ ALLIOLGA\ A& E Agreement- Boiler Plate\ A E Agreement- Standard Boiler Plate. doc

33

ASSIGNMENT OF CONTRACT

This ASSIGNMENT OF CONTRACT (" Assignment") is

March 2009 (" Effective Date")

Florida

corporation ("

City"),

and

SRC"),

by

and

made

as

of

the 31"

day of

between SCOTT ROBINS COMPANIES, INC.,

CITY OF MIAMI BEACH, a Florida municipal corporation

ARQUITECTONICA

INTERNATIONAL

CORP.,

Florida

corporation

Arquitectonica").
RECITALS

A.

SRC and Arquitectonica entered into that certain letter agreement for architectural

dated December 4, 2008,

services

Exhibit A("

a true and complete copy of which is attached hereto as

Existing Contract").

B.

SRC desires to assign unto City all of SRC' s rights under the Existing Contract

effective as of the Effective Date and City has agreed to accept such assignment on the terms and
conditions hereof.
C.

Arquitectonica has approved the assignment of the Existing Contract to City; and

D.

Simultaneously herewith City and Arquitectonica have agreed to amend and

restate the Existing Contract in its entirety.
NOW,

THEREFORE,

consideration, receipt of which

is

in

consideration

hereby

of

acknowledged,

the

SRC,

premises

and

other

valuable

City and Arquitectonica agree as

follows:
1.

All of the Recitals are correct and are incorporated herein and made a part hereof

by reference.
2.

SRC hereby assigns the Existing Contract to City and City accepts the assignment

as of the Effective Date.

3.

Arquitectonica hereby consents to and approves the assignment of the Existing

Contract to City.
4.

Arquitectonica acknowledges that SRC has performed all obligations and paid all

Existing Contract through the Effective Date. Neither SRC nor City
shall have any obligations under the Existing Contract for matters arising prior to the Effective
amounts required under

the

Date.

5.

Simultaneously herewith Arquitectonica and City shall execute a contract in the

From and after the Effective Date, ( a) the Existing
Contract shall be deemed amended and restated in its entirety and superseded by the New
Contract; ( b) Arquitectonica and City shall be governed by the New Contract and not by the
Existing Contract.
form

of

Exhibit B hereto (" New Contract").

In Witness Whereof, SRC, Arquitectonica and City have caused this Assignment to be
executed and delivered as of the Effective Date.

SCOTT ROBINS COMPANIES, INC.,

a Florida corporation

By:
Name:

S cft t-%

Title:

Signatures continue on the next two pages]

2Assignment of SRC contract 2009- 03- 27

ARQUITECTONICA

INTERNATIONAL CORP.

a Florida corpor tion

By:
Name:-.,
Title:

Ce

f2S

Signatures continue on the next page]

3Assignment

of

SRC

contract

2009- 03- 27

CITY OF MIAMI BEACH,

a municipal corporation of the State of
Florida

By:
Name:

Matti Herrera Bower

Title:

Mayor

ATTEST:

SEAL]

By:
Robert

Parcher,

City Clerk

APPROVED AS TO
FORM& LANGUAGE
CUTION
FO

3 3a v9
City ttomey

Date

5224161

4.

a
1 . 9111111111111111111111111111111111111111

OR Bk 26315 Fss

JOG

3735; ( 60epss)

RECORDED 1f/03, F2i iI9

HARVEY RUVI N P CLERK OF rnURT

MIAMI- DARE COUNT`r P FLORIDA

This instrument prepared by

and when recorded return to:

Martin A. Schwartz, Esq.

Bilzin Sumberg Baena Price&

Axelrod LLP

200 South Biscayne Boulevard, Suite 2500

Miami, Florida 33131

For Recorder's Use Only)

DECLARATION OF CONDOMINIUM

PURDY AVENUE COMMERCIAL CONDOMINIUM

MIAMI 1746636. 8 7829330796

6q

TABLE OF CONTENTS
Page

1.

2.

1
INTRODUCTION AND SUBMISSION ..........................................................................
1. 1

The Land................................................................................................................ 1

1. 2

Submission Statement............................................................................................

1. 3 .

Name......................................................................................................................

1
DEFINITIONS...................................................................................................................

1
Act" ......................................................................................................................
1
Articles"................................................................................................................

Assessment"

or " Assessments"

............................................................................

Association" ....................................... ................................................................1

Association

Board

of

Property.............................................................................................

Directors"

or "

Board"............................................................................

2'
BRP Unit".............................................................................................................

2
Building.. ..............................................................................................................

By- Laws".............................................................................................................. 2
Ci
City

2
Unit" .............................................................................................................

Collection Costs'...................................................................................................

CommonElements" .............................................................................................
2
Common Expenses" .............................................................................................

Common Surplus"................................................................................................

Condominium".....................................................................................................3
Condominium Documents"..................................................................................

Condominium Parcel"..........................................................................................

Condominium

Property.. ...................................................................................... 3

County
Declaration"

or " Declaration of

Condominium".................................................. 3

Developer"............................................................................................................3

Improvements.. .....................................................................................................3
Institutional Mortgagee"....................................................................................... 3

Interest Rate"........................................................................................................

Land".................................................................................................................... 3

MIAMI 1746636. 8 7829330796

i_

TABLE OF CONTENTS
continued)

Page

Legal Requirements"............................................................................................

Owner"

or " Unit

Owner"...................................................................................... 4

Person" .................................................................................................................

Project"................................................................................................................. 4
Special Assessments"...........................................................................................

4
Unit".....................................................................................................................

Utility

4
Facilities" ..................................................................................................

Utility

Services" ...................................................................................................

4
DESCRIPTION OF CONDOMINIUM.............................................................................

3.

Units............................................................................................4

3. 1

Identification

3. 2

Unit Boundaries..................................................................................................... 5

3. 3

Easements ..............................................................................................................

of

COMMON ELEMENTS, COMMON SURPLUS, COMMON EXPENSES AND

4.

8
VOTINGRIGHTS.............................................................................................................

5.

6.

7.

'

Shares.........................................................................

4. 1

Percentage

4. 2

Restraint Upon Separation

4. 3

8
Voting ....................................................................................................................

Ownership

and

and

Partition

of

Common Elements ........................... 8

8
AMENDMENTS ...............................................................................................................

5. 1

By

the Association................................................................................................. 8

5. 2

By

Developer......................................................................................................... 9

5. 3

Execution

5. 4

Restrictions

5. 5

Scrivener' s Errors.................................................................................................

and

on

Recording....................................................................................... 9
Amendments................................................................................. 9

10

MAINTENANCE AND REPAIRS................................................................................. 10

6. 1

By

Owner............................................................................................................. 10

6. 2

By

Association..................................................................................................... 10

6. 3

Association' s Right

6. 4

Miscellaneous ...................................................................................................... 11

of

Access to Units................................................................10

ADDITIONS, ALTERATIONS OR IMPROVEMENTS...............................................11

7. 1

By

the Association............................................................................................... 11

MIAMI 1746636. 8 7829330796

11-

TABLE OF CONTENTS
continued)

Page

7. 2
8.

9.

By

Owners ...........................................................................................................

11

OPERATION OF THE CONDOMINIUM BY THE ASSOCIATION..........................11

8. 1

Powers

8. 2

Limitation Upon

8. 3

Restraint Upon Assignment

8. 4

Approval

8. 5

Acts

of

Duties................................................................................................

and

or

Liability

Disapproval

of

of

11

Association............................................................ 13

of

Shares in Assets.................................................

13

Matters.................................................................... 13

the Association........................................................................................ 13

ASSESSMENTS AND OTHER CHARGES.................................................................. 13

Common Expenses

Assessments......................................

13

9. 1

Determination

9. 2

Liability for

9. 3

Unpaid Assessments

9. 4

Institutional Mortgagee........................................................................................ 14

9. 5

Possession

9. 6

Certificate

Unpaid Assessments......................................................................

14

9. 7

Special Assessments ............................................................................................

14

of

and

Payment...........................................................................................

14

Other Charges .............................................................

14

of

of

and

14
Unit................................................................................................

10.

15
INSURANCE...................................................................................................................

11.

15
RECONSTRUCTION OR REPAIR AFTER FIRE CASUALTY.................................

12.

13.

Owner............................................................................................... 15

11. 1

Election

11. 2

Election to Restore...............................................................................................

11. 3

Nonrestoration

of

City

11. 4

Nonrestoration

of

16
BRP Unit.................................................................................

11. 5

Restoration After Election Not to Restore...........................................................

By

15

15
Unit.................................................................................

16

16
CONDEMNATION.........................................................................................................
Awards

Insurance Trustee..........................................................

16

12. 1

Deposit

12. 2

Determination Whether to Continue Condominium............................................ 16

12. 3

Taking

of

16
Unit...............................................................:......................................

12. 4

Taking

of

Common Elements..............................................................................

12. 5

Amendment

of

of

with

16

Declaration..................................................................................17

OCCUPANCY AND USE RESTRICTIONS .................................................................17

13. 1

Use

of

City

MIAMI 1746636. 8 7829330796

17
Unit...................................................................................................

111-

TABLE OF CONTENTS
continued)

Page

17
BRP Unit..................................................................................................

13. 2

Use

13. 3

Rules ....................................................................................................................

13. 4

Conduct

13. 5

Plans

13. 6

Compliance

13. 7

Cooperation.......................................................................................................... 19

13. 8

Odors....................................................................................................................

13. 9

Hazardous Materials ............................................................................................19

13. 10

Government Compliance...................................................:................................. 19

of

of

18

18
Work..................................................................................................

18
Availability.................................................................................................
with

Legal Requirements.................................................................

18

19

14.

SELLING, LEASING OR TRANSFERRING OF UNITS.............................................20

15.

20
COMPLIANCE AND DEFAULT...................................................................................
15. 1

Negligence ........................................................................................................... 20

15. 2

Costs

Attorneys' Fees....................................................................................

and

20

16.

20
TERMINATION OF CONDOMINIUM.........................................................................

17.

20
ADDITIONAL PROVISIONS........................................................................................
Institutional Mortgagees .................................................... 20

17. 1

Additional Rights

17. 2

Assignment of Developer' s Rights..............................................................

17. 3

Limitation

17. 4

Covenant

17. 5

Notices .................................................................................................................22

17. 6

No Time- Share Estates ........................................................................................

17. 7

22
Exhibits................................................................................................................

17. 8

Taxes....................................................................................................................

22

17. 9

Signature

22

17. 10

Governing

17. 11

Severability..........................................................................................................23

17. 12

23
Waiver..................................................................................................................

17. 13

23
Ratification...........................................................................................................

17. 14

Gender;

17. 15

Captions...............................................................................................................

of

of

21
Liability..........................................................................................

Running

of

With the Land....................................................................... 21

President

and

Secretary...................................................................

22

23
Law....................................................................................................

23
Plurality..................................................................................................

MIAMI 1746636. 8 7829330796

iv-

23

TABLE OF CONTENTS
continued)

Page

17. 16

23
Statutory Warranty Liability................................................................................

17. 17

Force Majeure Events..........................................................................................

EXHIBIT A

Legal Description

EXHIBIT B

Survey

EXHIBIT C

Allocation of Shares of Common Elements, Common Expenses and

Common Surplus
EXHIBIT D

By Laws

EXHIBIT E

Articles of Incorporation

MIAMI 1746636. 8 7829330796

V_

23

DECLARATION OF CONDOMINIUM
OF
PURDY AVENUE COMMERCIAL CONDOMINIUM

This

having

an

BRP")

Declaration

Condominium (" Declaration")

day of
2009, by BAY ROAD PARTNERS, LLC, a Florida limited liability company

address

and

c/ o

of

Scott Robins Companies, 230

CITY OF MIAMI BEACH,

5th

made

as

of

this

Street, Miami Beach, Florida 33139

a municipal corporation having an address at 1700

City"). BRP and City are collectively

Convention Center Drive, Miami Beach, Florida 33139 ("

to

referred

as "

Developer".

Developer declares as follows:

1.

INTRODUCTION AND SUBMISSION.

1. 1

The Land.

Developer owns the fee title to land located in Miami-Dade County,

Florida described in Exhibit " A" (" Land").

1. 2

Submission Statement.
to be

erected or

intended for

use

erected

in

Facilities

Developer submits the Land and all improvements

thereon, all easements, rights and appurtenances and all other property

connection

therewith

and

located

on

the

land ( excluding all public and private

defined below),

Utility
to the condominium form of ownership and use in the
manner provided by the Florida Condominium Act, Chapter 718, Florida Statutes as it exists on
as

this date.
The name b y which this condominium is to b e identified i s. P URDY
AVENUE COMMERCIAL CONDOMINIUM (" Condominium").
1. 3

Name.

2.

DEFINITIONS.

as

they may subsequently be

The following terms when used in this Declaration and in its exhibits,
amended, shall have the meaning indicated in this Article, except
where the context clearly indicates a different meaning:
Act"

means the

Condominium Act ( Chapter 718, Florida Statutes) as it exists on this

date and as it may subsequently be renumbered.

Articles"

means

the Articles

of

Incorporation

of

the Association

attached at

Exhibit " E",

as they may be amended from time to time.

Assessment"

Common Expenses

or "

which

Assessments" means a share of the funds required for the payment of

from time to time is

assessed

against an

Owner,

including Special

Assessments.
Association"

for

profit

Florida

means

Purdy Avenue Commercial Condominium Association, Inc., a not

the entity responsible for the operation of the Condominium in

corporation,

accordance with the terms of this Declaration.

MIAMI 1746636. 8 7829330796

j
i

Association Property"

means

any

real

or personal

property

owned

or

leased

by,

or

dedicated by plat to, the Association for use and benefit of the Owners.
Board

of

Directors"

or "

Board" means the Board of Directors of the Association.

B12P Unit" means the Unit described in Section 3. 1( a).

Buildinjz" means the structures intended to be erected on the Land.

By- Laws" means the By- Laws
be amended from time to time.

of

the Association attached as Exhibit " D",

as they may

City Unit" means the Unit described in Section 3. 1( b).

Collection Costs"
applicable
attorneys'

obligation( s)
and

paralegals'

includes all costs and expenses reasonably incurred in enforcing the

this Declaration, including, without limitation, reasonable

under

fees

at

all

tribunal

levels, in

connection

with

all

proceedings,

and

whether or not suit is instituted.

Common Elements" means and includes:

a)

the Land,

all

below

those portions of the Condominium Property consisting of the surface of

surface

interests, the air space above' 500 feet above ground level and the

foundation and footings of any Building constructed on the Condominium Property;

b)

those portions of the Condominium Property not included within the

Units;

an easement of support in every portion of a Unit which contributes to the

support of the Building;
c)

d)

any electrical vault constructed in the Building and furnishing service to

the entire Building; and
e)

any other parts of the Condominium Property designated as Common

Elements in this Declaration.

Common Expenses"

means all expenses incurred by the Association on behalf of the

Association or on behalf of the Condominium, including, without limitation:
a)

expenses

of administration,

management,

operation,

maintenance, repair

or replacement of the Common Elements;

b)

costs of carrying out the powers and duties of the Association and for

administration and management of the Association; and

c)

any other expenses designated as Common Expenses by the Act or the

Condominium Documents.

2
MIAMI 1746636. 8 7829330796
i

Common Surplus" means the excess of all receipts of the Association collected on

behalf

the

of

Condominium,

but

including,

not

limited to, Assessments,

rents,

profits

and

revenues on account of the Common Elements, above the amount of Common Expenses.

has the meaning indicated in Section 1. 3.

Condominium"

Condominium Documents"

means

collectively this Declaration, the Articles,

the By-

Laws and the rules and regulations of the Condominium.

Condominium Parcel" means a Unit together with the undivided share in the Common

Elements which is appurtenant to that Unit; when the context permits, the term includes all other
appurtenances to the Unit.
Condominium Property" means the Land, the Improvements, all easements and rights
appurtenant

intended for

use

in

connection with

the Condominium

and all other

property,

real,

personal and mixed made subject to this Declaration.

County" means the County of Miami- Dade, State of Florida.

Declaration"

or "

Declaration

of

Condominium"

means this instrument, as it may be

amended from time to time.

Developer"

means BRP and City and their respective successors and assigns to which
as Developer are specifically assigned; neither BRP or City may
partially assign their respective rights as Developer..
all

of

the

rights

of either

Improvements" means all structures and artificial changes to the natural environment
exclusive of

landscaping) located on the Condominium Property.

Institutional Mortgagee"

Condominium Parcel:
mortgage

bank,

investment trust,

banker, any

other

means any of the following holding a first mortgage on a

savings and

pension

fund,

lender generally

loan

association,

insurance company,

real

estate or

an agency of the United States government, mortgage

recognized

as

an

institutional- type lender, the Federal

National Mortgage Association, the Federal Home Loan Mortgage Corporation, the Government
National Mortgage Association and Developer.

Interest Rate"
from time to time
Journal,

means a rate per annum equal

as reported

as published and

to 2%

from time to time in the "

above

Money

the " Prime Rate"

as it varies

Rates" section of The Wall Street

distributed in New York, New York,

successor, a newspaper or other publication of similar stature,

or

its

successor,

or if it has no

or if such rate shall cease to be

published, such other rate as shall at the time be representative of the rates announced by major

U.S. money center banks as the typical rate of interest charged on unsecured corporate loans.
Land"

has the meaning indicated in Section 1. 1.

Legal Requirements"
regulations

and

requirements

means ( a)
of

all

all present and

federal,

state,

future laws,
county

and

ordinances, orders, rules,

municipal

governments,

3
MIAMI 1746636. 8 7829330796

i
t

departments,

boards

commissions,

and courts,

and rules and regulations of any insurance rating

organization or any other body exercising similar functions, foreseen or unforeseen, ordinary as
which may be applicable to the Condominium Property or the sidewalks
Condominium Property or to the use or manner of use of the
adjoining
Condominium Property by the Owners, tenants, or occupants thereof, including the Americans
with Disabilities Act; ( b) the requirements of all public liability, fire and other policies of
insurance at any time. in force with respect to the Condominium Property; and ( c) the provisions
of any restrictive covenants now or subsequently affecting the Condominium Property.
well as
and

extraordinary,

the

curbs

Owner"

Parcel

as shown

or "

by

Unit Owner"

means a record owner of legal title to a Condominium

in the

the real estate records

office

of

the Clerk

the

of

County, including

Developer, and any one or more persons, firms, associations, corporations or other legal entities
holding legal title. " Owner" shall not mean or refer to ( i) the holder of a mortgage or security
deed, its

successors

foreclosure

or

assigns,

proceedings or

unless and until such holder has acquired title pursuant to

deed in lieu

of

foreclosure;

or(

ii)

any lessee or tenant of an Owner.

Person"

means an individual or individuals, firm, corporation, partnership, association,

trust or other legal entity or any combination of any of the foregoing.
Project"

means the construction of a 458 space parking garage as approved by the City's
on October 6, 2008 under File No. 21861, and ( ii) Planning Board on

i) Design Review Board

September 23, 2008

under

File No. 1896.

Special Assessments"

Unit"

has the meaning indicated in Section 9. 7.

means a portion of the Land which is subject to exclusive ownership.

Utility Facilities"

means

includes

and

private

and

utility lines,

public

systems,

or

facilities of any type or nature, including wires, pipes, mains, conduits, valves, air handling units,
switches, control

boxes, breakers,

risers, cables,

fiber

optic

lines,

shafts,

ducts,

master antenna,

satellite dishes and reception devices which supply or are used in the supply of domestic cold
and

hot

steam,

water,

steam

sanitary

sewer

condensate,

service,

natural

ventilation and exhaust air,

gas,

storm

sewer

compressed

electricity, fire

alarm,

service,

air,

chilled

conditioned

emergency

water,

and

condenser

non

water,

conditioned

air,

communications, systems control

telephone,
television,
other
monitoring,
security
telecommunications and information transmission systems, and other mechanical, electrical, and
and

automation,

video

and

other

life safety systems, and including all meters for any of the foregoing.
Utility Services"

shall

include, but

not

heating,
and security systems and data transmission.
air

3.

conditioning, trash

removal,

be limited to,

electric power,

sewerage, master antenna,

domestic water,

cable television, telephone

DESCRIPTION OF CONDOMINIUM.
3. 1

Identification

of

Units.

The Condominium Property includes two Units.

4
MIAMI 1746636. 8 7829330796

The BRP Unit consists of the airspace on the Land from ground level to an

a)

16 feet

level

is

in Exhibit " B"

and shall be owned by BRP,

City conveys and quitclaims all of its interest in the BRP Unit to BRP.

elevation of

above ground

b)

16

above ground

and shall

be

and

shown

The City Unit consists of the airspace on the Land above the elevation of

level to

an elevation of

by City,

owned

BRP

500 feet

above ground

level

and

is

shown

in Exhibit " B"

conveys and quitclaims all of its interest in the City Unit to

City.
The designation

c)

consists of a

Exhibit " B"

relative

survey

of

Unit is

of each

the Land, a graphic

set

description

of

forth

on

Exhibit " B".

Exhibit " B"

the Units, and a plot plan thereof.

together with this Declaration identify the Common Elements and each Unit and the

locations

and approximate

dimensions. Upon completion of the Project, the Owners will

reconfigure the description of the Units to reflect the as- built location of the City Unit and the
BRP Unit as previously approved by the City Design and Review Board and Planning Board and
as

indicated in the definition

d)

the Common

There

Elements

Common Elements

the " Project.".

shall pass with a

Unit

as appurtenances: (

i) an undivided share in

Common Surplus; ( ii) the exclusive right to use such portion of the

may be

in this Declaration; ( iii)

any Improvements which may

membership in the Association with full voting rights;
other appurtenances as may be provided in this Declaration.

from time to time

and ( v)

and

of

3. 2

as

exist on

the

provided

Unit; ( iv)

Each Unit shall include a fee simple interest in that part of

Unit Boundaries.

Land lying within the boundaries of the Unit.

3. 3

Easements.

The

following

easements are created (

in addition to any easements

created under the Act):

a)

Maintenance.

Easements in favor

of

the Association,

its employees,

agents and contractors over the Units to perform its maintenance functions of the Association
indicated in Section 6.
b)

Utility Services, Utility Facilities and Drainage.

i)

Easements for Utility Facilities and Utility Services, and drainage

are reserved for the benefit of each Owner under, through and over the Condominium Property
as
may be required from time to time for all or portions of the Condominium Property. An
Owner shall do nothing on the Unit that interferes with or impairs, or may interfere with or
impair, the provision of such Utility Services, other services or drainage facilities or the use of
these easements.

ii)

Each Owner or its designee shall have access to each other Unit to

Utility Facilities, Utility Services, drainage facilities and

contained in the Unit or elsewhere in the Condominium Property,
and to remove any Improvements interfering with or impairing such facilities or easements.
Except in the event of an emergency, such right of access shall not unreasonably interfere with
inspect,

maintain, repair or replace

the

Common Elements, if any,

5
MIAMI 1746636. 8 7829330796

an Owner's permitted use of a Unit, and shall not permit entry to any Unit on less than one days'
prior notice.

A non exclusive right and easement is reserved for the benefit of

iii)

Owner for the

each

permitted
serve

by

such

under,

any

existence, use, enjoyment, repair, replacement, and (

this Declaration) the

Owner' s Unit
Unit

other

or

relocation and

and ( z)

the installation

located ( in

are

whole or

any Common Elements.

in

of all

part)

to the extent expressly

Utility
within,

Facilities

which (

y)

or pass through or

Each Unit and the Common Elements are

subjected to the rights and easements for all Utility Services and Utility Facilities granted by this
Section 3. 3( b).
Such easements shall exist for all Utility Services and Utility Facilities as
presently located within the Condominium Property and as the same may subsequently be
located

or relocated

in

the

accordance with

provisions of

this Section 3. 3(

b) and shall be deemed

to include rights of access to such Utility Facilities and the use of such additional spaces and
such
areas
around
Utility Facilities reasonably necessary to serve the purposes of such
easements.

iv)

The

rights and

easements

described in Sections 13( b) and 3. 3( f)

are expressly made applicable to any Utility Services or other services which are or may become
necessary in the future for the proper operation of an Owner' s Unit, so long as the easements
described in Sections 3. 3( b)

3. 3( f) and the use of such easements do not interfere with the

and

use and occupancy of another Owner' s Unit.

v)

City,

BRP

or

the Association (

on its behalf and on behalf of the

Owners) each has the right to grant such additional easements for the installation and use of
Facilities,

and for the relocation of any existing Utility Facilities in any portion of the
Property, the Improvements and the Common Elements, as City, BRP and/ or
Association shall deem necessary for the proper operation and maintenance of the Condominium
Property, or any portion thereof, or for the general health or welfare of the Owners, or for the
Utility

Condominium

purpose of

existing
2) will

carrying

1)

provisions of

this Declaration. Such easements or the relocation of

will

temporary interference

reasonable,

excepting

during

performed

any

only be performed after 30 days' prior written notice to the Owners,

unreasonably interfere or diminish the service being supplied to the Unit( s)

easements (
not

out

non- business

hours,

is necessary), ( 3)

will only be
unless performance during business hours cannot be
when relocation

reasonably avoided ( it being intended that " business hours" will be different as applied to each
Unit, according to when normal use is highest for such Unit), ( 4) will, to the extent practicable,

be located in the
the

public roads and

requirements of

easement( s)

in the Common Elements,

this Declaration.

Any Owner that requires the creation or relocation of such

c)

Encroachments.

If( a)

any portion of the Common Elements encroaches

or onto any portion of the Common

any Unit; ( b) any Unit encroaches upon any other Unit

Elements; or ( c) any encroachment shall subsequently occur
as

5) will otherwise comply with

shall bear the expense of such creation and/ or relocation.

upon

Unit

and (

a result of ( i)

construction of

any

of

the

onto the Common Elements or any

Improvements; ( ii) settling or shifting of the

Improvements; ( iii)
consent of

the

any alteration or repair to the Common Elements made by or with the

Association, or ( iv) any repair or restoration of the Improvements or the Building

or any portion thereof) after damage by fire or other casualty or any taking by condemnation or
eminent domain proceedings of all or any portion of any Unit or the Common Elements, then, in
6
MIAMI 1746636. 8 7829330796

any

a valid easement shall exist for such encroachment and for its maintenance so

such event,

long as the Building or Improvements exist.

d)
Owner

Ingress

and occupant,

their

and

guests

Egress. A non- exclusive easement is created in favor of each

invitees, for

and

pedestrian

traffic

through and across

over,

sidewalks, streets, paths, walks, other rights of way and other portions of the Common Elements
but excluding the Units) as from time to time may exist and be intended and designated for such
purpose and use.

Construction; Maintenance; Repair

e)

and

Restoration.

City ( including

its designees,

contractors, successors and assigns)

time to time,

to enter the Condominium Property and the BRP Unit and take all other action

or convenient

necessary

for the

purpose of(

shall have the right, in its sole discretion, from

i) completing the

construction of

the Project

and (

ii)

after reasonable prior written notice to BRP and subject to the rights of any occupants of the
BRP Unit, repairing, replacing or maintaining the Improvements located on the BRP Unit which
support the
Improvements on the City Unit. BRC ( including its designees, contractors,
successors and assigns), after completion of the City Unit and after prior written notice to City,
shall have the right, in its discretion, from time to time, to enter the Condominium Property and
the City Unit and take all other action necessary or convenient for the purpose of( i) completing
the construction of the BRP Unit and ( ii) after reasonable prior written notice to City and subject
to the rights of any occupants of the City Unit, repairing, replacing and maintaining the BRP
Unit. The Association ( including its designees and contractors) shall have the right from time to
time to enter the Condominium Property, including the individual Units and any Improvements,
and to perform the Repairs and Alterations which may be performed by the Association pursuant
to. Articles 6

7.

Any activity described in this paragraph shall not prevent or unreasonably

interfere with the use or enjoyment by Owners of their Units.
and

f)
successors,

master antenna,

any

and

all

is

across

antenna, cable

community

conduits,

it ( or

to as the "

the

the

its

and

City

Condominium

and

nominees, (

television voice

amplifiers,

successors, assigns,

BRP

each

reserves

for itself, its

i) ownership of any closed circuit,

or data system or the like ( including

antennas,

towers

designees

and

other

or nominees)

apparatus

and

installs in part or

Property ( any such system and its related apparatus and equipment

Communications System"), ( ii)

Property

replacement and removal of

connect

wires,

one of

the Condominium

referred

designees

contractors,

related

equipment) which
whole on

Communications Systems.

assigns,

for

the

a perpetual

installation,

the Communications System

Communications

System

to

whatever

or

easement

servicing,

any

part

receiving

over,

through and

maintenance,

repair,

thereof, and ( iii) the right to

source

the

owner

of

the

Communications System deems appropriate.

Support.

An easement of support and of necessity is reserved for the

benefit of each Unit and each Unit shall be subject to an easement of support and necessity in
g)

favor of the other Unit and the Common Elements.

h)

Encroachments.

If( a)

any portion of the Common Elements encroaches

upon any Unit; ( b) any Unit encroaches upon any other Unit or upon any portion of the Common
Elements; or ( c) any encroachment shall subsequently occur as a result of( i) construction of the

Improvements; ( ii) settling

Common Elements made

or

by

shifting
or

with

of

the

the

Improvements; ( iii) any alteration or repair to the

of the Association, or ( iv)
any repair or

consent

7
MIAMI 1746636. 8 7829330796

or any Unit after damage by fire or

other casualty or any taking by condemnation or eminent domain proceedings of all or any
the Improvements (

of

restoration

any Unit

portion of

or

any

thereof)

portion

the Common Elements, then, in any

or

such event, a valid easement shall

exist for such encroachment and for its maintenance so long as the Improvements exist.

of

electric,

Developer and the Board, on their behalf and on

Additional Easements.

i)
behalf

the Association,

and

all

Owners, each shall have the right to grant such additional

water distribution or waste water collection or other utility or service or other

gas,

or relocate any existing easements or drainage facilities in any portion of the

easements,

Condominium Property, and to grant access easements or relocate any existing access easements
in any portion of the Condominium Property, as Developer or the Association shall deem
necessary

or

desirable for the

and maintenance of

proper operations

the Improvements, or any

portion thereof, or for the general health or welfare of Owners, or for the purpose of carrying out
any provisions of this Declaration or otherwise. Such easements or the relocation of existing
unreasonably interfere with the reasonable use of the Units. The
the joinder of any Owners, to grant, modify or move any
to the provisions of the easement, if the easement constitutes part of, or

easements will not prevent or

Board has the authority,

easement,

subject

without

crosses, the Common Elements.

COMMON ELEMENTS, COMMON SURPLUS, COMMON EXPENSES AND

4.

VOTING RIGHTS.
Percentalze Ownership

4. 1

Common Elements
appurtenant

to

each

4. 2

and

and

Shares.

The undivided percentage interest in the

Common Surplus, and the percentage share of the Common Expenses

Unit, is

Restraint

set

forth in Exhibit " C".

Upon

Separation

Partition

and

of

Common

Elements.

The

undivided share in the Common Elements and Common Surplus which is appurtenant to a Unit:
a)

shall not be separated from the Unit but shall pass with the title to the Unit, whether or not

separately described,
except

together

Condominium

with

and (

b) shall remain undivided and cannot be conveyed or encumbered

Unit.

the

Property,

or

any

No

for

action

shall

part,

partition

of

the

Common

Elements,

the

lie, except as provided upon termination of the

Condominium.

4. 3

Votin . The BRP Unit

be

to 35

and the City Unit shall be

entitled to 65 votes to be cast by its Owner in accordance with the By- Laws and the Articles on
all

matters

which

Owners

are

shall

entitled

to

entitled

vote.

votes,

Each Owner

shall

be a member of the

Association.

5.

AMENDMENTS.

Except

as

specifically

otherwise provided,

this Declaration may be

amended only as follows:

5. 1

By

be included in the

the Association.
notice of

Notice of the subject matter of a proposed amendment shall

any meeting

at which

it

will

be

considered.

A resolution to adopt the

amendment may be proposed either by a majority of the Board of Directors or by not less than
one- third of

the

members of

the Association.

Directors not present in person and members not

present in person or by proxy at the meeting considering the amendment may express their

8
MIAMI 1746636. 8 7829330796

in writing, provided that such approval is delivered

meeting. Except as elsewhere provided in this Declaration:
approval

to the secretary at or prior to the

An amendment may be adopted and approved by Owners and/ or the Board

a)

of Directors as follows:
i)

Owners owning in

ii)

75% of the Board of Directors.

excess of

75% of the votes allocated to all of

the Units; or

Except

b)
amendment shall (
alter or

materially

i)

as

the

change

modify the

specifically

otherwise

provided

in

this

Declaration,

no

any Unit in any material fashion, ( ii)

to any Unit, or ( iii) change the percentage by which

configuration or size of

appurtenances

the Owner shares the Common Expenses and owns the Common Elements and Common
Surplus,

of

in any such case, all affected record Owners, mortgagees and other lien holders

unless,

join in the

the

execution of

any Unit in any

If an amendment will change the configuration or size

amendment.

material

fashion, materially alter or modify the appurtenances to or voting

interest of any Unit, or change the percentage by which an Owner of a Unit shares the Common
Expenses

the Common Elements

owns

and

and

Common Surplus, then the record Owner( s)

thereof, and all record owners of mortgages or other liens thereon, shall join in the execution of
In

the amendment.

interests

addition, such amendment must

The

Owners.

of

additions

substantial

to

acquisition

such

of

property

be

by

approved

75% or more of the voting

the Association, material alterations or

property by
the Common

or

Elements by the Association and

installation, replacement, operation, repair and maintenance of approved hurricane shutters, if in

the

accordance with
or

alteration

provisions of

modification

of

this

Declaration, shall not be deemed to constitute a material

the appurtenances

of

the Units,

and

accordingly, shall not be

deemed included in this paragraph ( b).

By Developer. This Declaration does not include all of the land anticipated to be

5. 2

included in the Project.

Developer

upon

In addition, no Improvements to the Land will have been undertaken by

the recording

of

this Declaration.

When and if Improvements are to be

the Land,

Developer anticipates recording an amendment to this Declaration to

add additional property and Improvements to this Declaration and re- describe the two Units.
commenced on

Execution

5. 3

by

Developer

pursuant

Association

identifying

in the form

required

written

instrument in

and

Recording. An amendment, other than amendments made solely

to the Act

or

this Declaration,

shall be evidenced by a certificate of the

its recording data. The certificate shall be executed

deed. Amendments by Developer shall be made by

the Declaration with

for the

execution of a

recordable

form but

no

Association

action

is

required.

Any amendment of

the Declaration is effective when recorded in the Public Records of the County.
5. 4

Restrictions on Amendments.
a)

to be

Proposals to amend this Declaration shall contain the full text of the

new words shall be indicated by underlining and deletions shall be

material to be deleted with hyphens or otherwise clearly
by lining
indicating the deleted material. No amendment may be proposed or adopted solely by reference

provision

indicated

amended;

through the

9
MIAMI 1746636. 8 7829330796

to the title

of

the

provision

being

If a proposed change is so extensive that the

amended.

forth in this Section 5. 4( a)

would hinder rather than assist the understanding of the

proposed amendment, it shall not be necessary to use underlining and hyphens as indicators of
words added or deleted but instead a notation shall be inserted immediately preceding the
" substantial rewording of
proposed amendment in substantially the following language:
procedure set

declaration;

for

see provision

present

Non- material errors or omissions in the

text."

amendment process shall not invalidate an otherwise properly promulgated amendment.

No

may eliminate, modify, prejudice, abridge or otherwise adversely affect

benefits, privileges or priorities granted or reserved to Developer or mortgagees of

amendment

rights,

any
Units

without

entitled "

the

consent

of

Developer

Insurance", " Reconstruction

or

or

such

Repair

mortgagees

after

Casualty"

in

each

and "

instance.

The Sections

Condemnation" shall not be

modified unless all Instihrtional Mortgagees of record shall join in the amendment.
Scrivener' s Errors. If, through scrivener' s error, all of the Common Expenses or

5. 5

interest in the Common Surplus or all of the Common Elements have not been distributed in this
Declaration so that the sum total of the shares of Common Elements which have been distributed

or the shares of the Common Expenses or ownership of Common Surplus fails to equal 100%;
or, through error, more than 100% of the Common Elements or Common Expenses or ownership
of

Common

the

Surplus

shall

been

have

distributed;

or,

if through

scriveners'

error,

Condominium Parcel has not been designated an appropriate undivided share of the Common
Elements, Common Expenses

or

Common Surplus;

or,

if there is an omission or error in this

Declaration or in any of the related documents required by law to establish this Condominium,
the Association may correct the error and/ or omission by an amendment to this Declaration
and/ or any related documents by simple resolution of the Board of Directors approved by 75% of
the Board or by 75% of all votes of the Owners voting at a meeting of the Association called at
least in part for the purpose, at which a quorum is present. Any amendment approved pursuant
to this Section which modifies the shares of Common Expenses, Common Elements or Common
Surplus appurtenant to one or more Units, shall not be effective unless the Owners of and holders
of

liens

Section

upon

the Units

affected consent

Section 5. 2( b),

in writing to the

amendment.

For the purpose of this

Owner' s property rights shall be deemed to be materially

adversely affected nor shall his share of the Common Elements, Common Expense or Common
Surplus be deemed modified by reason of the modification of the shares of Common Expense,
and

no

Common Elements or Common Surplus appurtenant or attributable to another Unit.

MAINTENANCE

6.

collectively " Repairs")

AND

maintenance,

and

repairs

replacements

to the Condominium Property shall be performed as follows:

By Owner.

6. 1

All

REPAIRS.

Except

as

otherwise

expressly

provided,

an Owner shall make all

Repairs to the Owner' s Unit.

By Association. The Association shall maintain and trim all landscaping on the

6. 2
Land

and

all

repainting the
as

otherwise

sprinkler

irrigation

exterior portions of

provided,

systems.

the

Building

The Association
at such times as

shall

also

determined

be

by

responsible

for

the Board. Except

the Association shall make all Repairs to the Common Elements and

Property. The cost of such maintenance and Repairs described in this Section 6. 2
shall be charged to all Owners as a Common Expense except to the extent arising from or
Association

10
MIAMI 1746636. 8 7829330796

necessitated by the negligence, misuse or neglect of any specific Owner, in which case such cost
shall be paid solely by such Owner.
Association' s Riffht

6. 3

of

Access to Units.

The Association has the irrevocable

right of access to each Unit during reasonable hours when necessary for Repairs to any Common
Elements or of any portion of a Unit to be maintained by the Association pursuant to this
Declaration, or for making emergency Repairs to the Unit or any of the Building which are
necessary to prevent damage to the Common Elements or to any other Unit or to any of the
Building. Association' s right of access to any Building shall be effected only after at least five
days prior written notice to the Owner except in case of emergency when no notice shall be
required.

6. 4

Miscellaneous.

All

work

performed

on

portion

any

of

the

Condominium

Property shall be in compliance with all Legal Requirements.

ADDITIONS, ALTERATIONS OR IMPROVEMENTS.

7.

7. 1
Alterations"),
the

By

the Association.

as

distinguished from

Any

additions,

alterations

repairs and replacements,

improvements ( collectively
costing in excess of$ 10, 000 in
or

in any calendar year, shall be made by the Association only after the prior
75% of the votes allocated to all of the Units represented at a meeting at which a

aggregate

approval of

quorum

is

attained.

Any Alterations to the Condominium Property costing in the aggregate

10, 000 or less in a calendar year may be made by action of the Board without approval of the
Owners.

The costs of any such Alterations shall constitute Common Expenses and shall be

assessed to the Owners.

By Owners.

7. 2

An Owner shall not make any Alterations in or to the Common

Elements or Association Property without obtaining prior written consent from the Board of
Directors, which consent may be withheld for any reason at the sole discretion of the Board,
including, without limitation, for purely aesthetic reasons. Consent shall not be granted if it is
determined that the Alterations would detrimentally affect the architectural design of the
Condominium Property, but shall not be withheld in a discriminatory manner. The Board shall
be deemed to have denied the request if it fails to take any action within 30 days after the later of
i)

ii)

receipt of all additional information requested by the Board

day period. Any Alterations by an Owner shall be made in compliance with all
Legal Requirements and with any conditions imposed by the Association relating to design,
structural integrity, aesthetic appeal, construction details, lien protection or otherwise.
Any
receipt of such

request,

or (

30

within such

Owner making or causing to be made any

Owner and Owner' s heirs, personal

such

such

Alterations

representatives,

shall

be deemed to have

successors

and

assigns,

agreed,

for

to hold the

Association and all other Owners harmless from any liability or damage to the Condominium
Property and expenses arising therefrom, and shall be solely responsible for the maintenance,
repair and insurance of such Alterations from and after that date of installation or construction as
may be
and

required

other

by

the Association.

submissions

under

this

The Association' s rights of review and approval of plans

Declaration

Association.

11
MIAMI 1746636. 8 7829330796

are

intended solely for the benefit of the

OPERATION OF THE CONDOMINIUM BY THE ASSOCIATION.

8.

8. 1

Powers

Common Elements
the Association

and

Duties. The Association shall be responsible for the operation of the

the Condominium and the Association

of

include those

shall

set

forth in the

Property.

By- Laws

and

The powers and duties of

Articles.

In

addition,

the

Association shall have all the powers and duties set forth in the Act and in this Declaration,

including, without limitation:

The irrevocable right to have access to each Unit from time to time during
reasonable hours as may be necessary for maintenance, repair or replacement of any Common
Elements or of any portion of a Unit to be maintained by the Association pursuant to this
Declaration, or at any time and by force, if necessary, for emergency repairs necessary to prevent
damage to the Common Elements or to any other Unit or Units, or to determine compliance with
a)

the terms

and provisions of

its exhibits and the rules and regulations adopted

this Declaration,

pursuant to such documents, as the same may be amended from time to time.
b)

The

to

power

make

and

Assessments

collect

and

other

charges

and

surcharges against Owners and to lease, maintain, repair and replace the Common Elements and

Association Property.

The duty to maintain accounting records according to good accounting

practices, which shall be open to inspection by Owners or their authorized representatives at such
reasonable times as established from time to time by the Board.
c)

d)
with

The

Association

the

to

power

enter

Developer),

or

into

for

contracts with

valuable

others ( whether or not

consideration,

for

affiliated

maintenance

and

management of the Condominium Property and Association Property and, in such connection, to
permit

to

others

make and collect

Assessments

and other charges against

Owners, and perfect

liens for non- payment thereof on behalf of the Board.

The

e)

power

to

borrow

money,

execute

promissory

notes

and

other

evidences of indebtedness and to give as security mortgages and security interests in property
owned by the Association, provided that such actions are approved by a majority of the Board of
Directors and of Owners represented at a meeting at which a quorum has been attained, or by
such greater percentage of the Board or Owners as may be specified in the By-Laws with respect
to certain borrowing.
f)
which

quorum

acquisition

lands

or

provided
of

of

for the

ownership (

attained,

the power to acquire and enter into agreements for the

fee interests, leaseholds,

facilities,

ownership),

When authorized by a majority of Owners represented at a meeting at

has been

memberships and other possessory or use interests in

whether or not contiguous

use or

benefit

of

to the lands

Owners ( whether

of

the Condominium,

intended to be

basis).

The expenses

or not on an exclusive

including the expense of making and carrying any mortgage related to such

rental,

membership

fees,

operation,

replacements

and

other

expenses

and

undertakings in connection therewith shall be Common Expenses.

g)
governed

by

The

power

to ( i)

the Association and (

grant bills of sale for items of personal property owned or

ii) take any

other action on

12
MIAMI 1746636. 8 7829330796

behalf

of

itself

and all

Owners ( as

attorney- in- fact for

to

which

Owners) to satisfy any requirement of a company or governmental agency

all

equipment,

facilities or materials used in connection with Utility Services are to be

transferred.

h)

The duty to notify Owners within a reasonable time of the institution of

any action or proceeding against the Association in which the Association may be exposed to
liability in excess of insurance coverage; any Owner shall have the right to intervene in and
furnish additional defense for the Association.
i)

Property

and

To contract for the management and maintenance of the Condominium

to authorize a

management agent ( which

may be

an affiliate of

Developer) to assist

the Association in carrying out its powers and duties by performing such functions as the
submission of proposals,

collection of

Assessments

and other charges, preparation of records,

enforcement of rules and maintenance, repairs and replacement of the Common Elements with

funds

by the Association for such purposes. The Association shall,

however, retain at all times the powers and duties granted by this Declaration, the Articles, ByLaws and the Act, including but not limited to the making of Assessments, and other charges,
as shall

be

made available

promulgation of rules and execution of contracts on behalf of the Association.

0)
or

its

occupant,.

The power to levy reasonable fines against a Unit for failure of the Owner
or invitee to comply with any provision of this Declaration, the By-

licensee

Laws or the rules and regulations.

k)

All of the powers which a corporation not for profit in the State of Florida

may exercise.

8. 2

Limitation Upon Liability

of

Association.

8. 3

Restraint Upon AssitZnment

of

Shares in Assets. An Owner' s share in the funds

Notwithstanding the duty of the

Association to maintain and repair parts of the Condominium Property and the Association
Property, the Association shall not be liable to Owners for injury or damage, other than for the
cost of maintenance and repair, caused by any latent condition of the Condominium Property or
the Association Property.

and

assets

of

the Association

cannot

be

assigned,

hypothecated or transferred in any manner

except as an appurtenance to such Owner' s Unit.

8. 4

Approval

or

Disapproval

of

Matters.

Whenever the decision of an Owner is

any
whether or not the subject of an Association meeting, that decision
shall be expressed by the. same individual who would cast the vote for the Unit if at an
Association meeting, unless the joinder of record Owners is specifically required by the
Declaration or By- Laws. Any decision by the City or document execution by the City as the
City Owner under the Condominium Documents shall be made and will be effective if made or
executed by the City Manager or by his or her designee.
required upon

8. 5

matter,

Acts

of

the Association.

the Board is specifically

Unless approval or action of Owners or a specific

by the Condominium Documents, or applicable

law, all approvals or actions required or permitted to be given or taken by the Association shall
be given or taken by the Board of Directors, without the consent of Owners. The Board may so
percentage of

required

13
MIAMI 1746636. 8 7829330796

approve and act through the proper officers of the Association without a specific resolution.
Whenever

an

approval

or

action

of

the Association is to be

given

or

taken,

such

action

or

approval may
be conditioned in any manner the Association deems appropriate or the
Association may refuse to take or give such action or approval without the necessity of

establishing the reasonableness of such conditions or refusal.

ASSESSMENTS AND OTHER CHARGES.

9.

9. 1
Directors

Determination

of

Common

Expenses

and

The

Assessments.

Board

of

from time to time,

and at least annually, prepare a budget for the Condominium,

determine the amount of Assessments payable by Owners to meet the Common Expenses and
allocate and assess such expenses among Owners in accordance with the provisions of this
Declaration and the By- Laws. The Board, promptly following its determination, shall advise all
Owners in writing of the amount of Assessments payable by each Owner and shall furnish copies
of the budget, on which such Assessments are based, to all Owners and ( if requested. in writing)
to their respective mortgagees.
Any budget adopted shall not contain reserves for capital
expenditures and deferred maintenance.
Any budget adopted may be changed at any time to
cover actual expenses.
Any such change shall be adopted consistent with the provisions of the
By-Laws.
shall

Liability for Payment. Each Owner, regardless of the manner in which title is

9. 2

acquired, including, without limitation, purchase at a judicial, sale, or deed in lieu of foreclosure,
shall be liable for all, Assessments and other charges due with respect to that Unit while an
Owner.

Except

as otherwise

indicated in this Article,

an Owner shall be jointly and severally

liable with the previous Owner of a Unit for all unpaid Assessments and other charges against
the

Unit coming due to the time

of

the transfer

to any right the Owner may have to recover

of

title.

from the

Such liability shall be without prejudice

previous

Owner any

payment made.

The

liability for Assessments may not be avoided by waiver of the use or enjoyment of any Common
Elements or by the abandonment of the Unit for which the Assessments are made or otherwise.
9. 3

Unpaid Assessments

and

Other Charl4es.

Assessments and other charges paid

within 10 days after the due date shall not bear interest but all sums not paid within such period
interest

thereafter shall bear

at

the Interest Rate from the

original

due date

until

paid.

The

Association may charge an administrative late fee, in addition to such interest, in an amount not
to

exceed

the greatest

of (i)

$ 25. 00, ( ii) five

may be
Assessments in

unpaid

then to the

foregoing
instruction

permitted

be

placed

applicable

on or

with

accordance

delinquent Assessment, (
shall

by

percent

of each

delinquent

payment

or (

iii)

such

the Act.

In addition, the Association may accelerate

Laws.
ByAny payment received by the
any
Association shall be applied first to any interest accrued by the Association, then to any
administrative late fee, then to any costs and reasonable attorney' s fees incurred in collection, and
maximum amount as

the

and/ or other charges,

notwithstanding any

accompanying

payment.

to the

restrictive

extent allowed
endorsement,

by

law).

The

designation,

or

A late fee shall neither be subject to the

provisions of Florida's interest and usury laws nor the provisions of the Condominium Act
dealing with the levy of fines against a Unit.
9. 4

Institutional MortIzagee.

If an Institutional Mortgagee files suit to foreclose its

mortgage the Association shall not be named as a defendant.

14
MIAMI 1746636. 8 7829330796

Possession

9. 5

Unit.

Any Person who acquires an interest in a Unit shall not be

entitled to occupancy of the Unit or enjoyment of the Common Elements until such time as all
Assessments

unpaid

of

and other charges

due

and

owing

by

the

former Owner, if any, have been

paid.

9. 6

Certificate

Unpaid Assessments.

Within 15 days after written request by

Owner, or holder of a mortgage on a Unit, the Association shall provide a certificate stating all
Assessments and other moneys owed to the Association by the Owner with respect to the Unit.
of

Any person other than the Owner who relies on such certificate shall be protected thereby.
9. 7

Special Assessments.

In addition to Assessments to meet annually budgeted

may levy Assessments for nonrecurring costs or

improvements (" Special Assessments").
The specific purpose or purposes of any

Common

Expenses,

the

Board

capital

Special

Assessment approved in accordance with the Condominium Documents shall be set forth in a
written notice of such

Special Assessment

sent or

delivered to

each

Owner. The funds collected

pursuant to a Special Assessment shall be used only for the specific purpose or purposes set forth
in

such

notice,

or

returned

to the

Upon completion of such specific purpose or

Owners.

purposes, any excess funds shall be considered Common Surplus.

INSURANCE.

Each Owner shall provide casualty and liability coverage for its Unit as
City shall be entitled to self-insure pursuant to its plan of funded self
insurance. Insurance coverage provided by any individual Owner shall provide that the coverage
afforded by such policies is primary and without rights of subrogation against the Association or
any other Owner.
10.

described in this Section.

including all fixtures,

machinery
installed and all alterations and additions made by an Owner
collectively, " Insured Property"), shall be insured in an amount not less than 100% of full
insurable replacement value, excluding foundation and excavation costs, against loss or damage
by fire and other hazards covered by a standard extended coverage endorsement and such other
risks including, but not limited to, vandalism and malicious mischief, and windstorm as from
time to time are customarily covered with respect to buildings and improvements similar to the
Insured Property in construction, location and use.
Such policies may contain reasonable
Casualty.

a)

and

The

Improvements

in

each

Unit,

installations

deductible provisions.

liability and automobile liability insurance

covering loss or damage resulting from accidents or occurrences on or about or in connection
with the Insured Property or adjoining driveways and walkways, or any work, matters or things
related to the Insured Property, with such coverage as shall be required by prevailing market
conditions, but with combined single limit liability of not less than $ 1, 000, 000.
b)

11.

Liability.

Commercial

RECONSTRUCTION OR REPAIR AFTER FIRE CASUALTY.

11. 1

Election By Owner.

Each Owner shall be responsible for the repair and/ or

restoration of such Owner' s Unit but neither Owner shall be obligated to make such repairs
and/ or restoration.

Should an Owner elect not to restore it shall remove such of the damaged

portion of the Unit and restore same to the extent the Unit is in a self contained and neat and
clean appearance.

15
MIAMI 1746636. 8 7829330796

11. 2

Within 90 days

Election to Restore.

following

any damages to any Unit, the

Owner of the Unit will advise each other Owner whether it has elected to restore or not restore
damage.

In the event of any restoration any Owner shall have access to the Condominium
Property and the other Unit for the purpose of effecting any repair or restoration in accordance

the

Section 3. 3(

with

the

City

elects

Failure to

e).

to

restore

provide such notice shall

City

the

Unit,

be deemed

an election not

to

restore.

If

BRP shall reimburse the City for its share of any

restoration costs described in Section 11. 4.

11. 3

Nonrestoration

City Unit.

If the City Unit is damaged and such damage

affects the operation of the BRP Unit and City has elected or deemed to have elected not to
of

the damage, the BRP Unit Owner may,

restore

reasonably necessary to

render

its Unit

at

its

expense,

a self contained

take such actions as it deems

operating

structure.

Such actions may

include, without limitation, the erection, repair or replacement of a roof over the BRP Unit and

building openings on the City Unit. City grants BRP easements of access to
the City Unit to make such alterations and grants BRP the right to make appropriate alterations to
the Improvements on the City Unit consistent with this Section 11. 3. Should City provide notice
the enclosure

of

any

that it elects to restore as provided in Section 11. 2 but fails to commence such restoration within

180 days after such notice or ceases for a period of at least 60 days in any restoration work once
commenced, then such actions shall be deemed an election by City not to restore its Unit.
11. 4

Nonrestoration

of

BRP Unit.

If the BRP Unit is damaged and such damage

affects the operation of the City Unit and BRP has elected or deemed to have elected not to
the damage, the City Unit Owner may, at its expense, take such actions as it deems
reasonably necessary to render its Unit a self contained operating structure. Such actions may
include, without limitation, enclosure of any building openings on the BRP Unit. Should such
restoration include repairs to or replacement of the footings, foundations and any other below
restore

grade

BRP

structure,

first floor

will reimburse

City in

the Shared Components

columns or

such event

and (

ii)

all

the floor

for 35%

soft costs

slab

of(

for

second

floor (" Shared Components"),

i) the cost of such repairs to or restoration of

appropriately

related

thereto.

To the extent the

repairs or restoration also involves other portions of the Improvements on the City Unit, Owners
shall equitably apportion the costs of the work to the Shared Components and to the balance of
the other work. BRP grants City easements of access to the BRP Unit to make such repairs and
restoration and grants City the right to make appropriate alterations to the Improvements on the
BRP Unit

consistent with

this Section 11.

Should BRP provide notice that it elects to restore as

provided in Section 11. 2 but fails to commence such restoration within 180 days after such

notice or ceases for a period of at least 60 days in any restoration work once commenced, then
such actions shall be deemed an election by BRP not to restore its Unit.
11. 5
to

have

Restoration After Election Not to Restore.

elected

not

to

restore

the

If any Owner has elected or deemed

Improvements on such Owner' s Unit but such Owner

subsequently seeks to restore, such restoration may be undertaken only if it does not interfere in
any material respect with the conduct of business on any Unit in which business is being
conducted and all work involved in such restoration, including work affecting another Unit, is
accomplished at the sole cost of the restoring Owner.

16
MIAMI 1746636. 8 7829330796

12.

CONDEMNATION.

12. 1

Deposit

of

Awards

with

Insurance Trustee.

For purposes of this Declaration,

the taking of portions of the Condominium Property by the exercise of the power of eminent
domain or purchase in lieu thereof(" Taking") shall be treated as a casualty.
12. 2

Determination

Whether

to

Continue

Condominium.

The

determination

whether to terminate the Condominium after the taking of a substantial portion of the Common
Elements will be made by an affirmative vote of 75% of the votes allocated to all of the Units as
provided for termination of the Condominium.
12. 3

Taking

Unit.

If the Taking is of all or a portion of one or more Units then the

award for the Taking shall be allocated by the condemning authority between the Units and then,
as

to

each

Unit,

paid

of

to the

extent available

from the

award allocated

to

such

Unit:

first, to the

applicable Institutional Mortgagees in amounts sufficient to satisfy their mortgages on such Unit
on which a taking has occurred; second, to the Association for any due and unpaid Assessments;
third, jointly to the affected Owners and other mortgagees of their Units.
12. 4

Taking

12. 5

Amendment

Common Elements.

Awards for the Taking of Common Elements

shall be used to render the remaining portion of the Common Elements useable in the manner
If the cost of such work shall exceed the balance of the
approved by the Board of Directors.
funds from the awards for the Taking, the work shall be approved in the manner elsewhere
required for capital improvements to the Common Elements and shall be paid by the Owner of
the Unit for which the work is necessary. The balance of the awards for the Taking of Common
Elements, if any, shall be distributed to the Owners in the shares in which they own the Common
Elements after adjustments to these shares by reason of the Taking. If there is a mortgage on a
Unit, the distribution shall be paid jointly to the Owner and the mortgagees of the Unit.
of

of

Declaration.

The changes in Units, the Common Elements and

in the ownership of the Common Elements and the adjustment to the shares in the Common.
Expenses and Common Surplus that are effected by the Taking shall be evidenced by an
amendment to this Declaration approved by, and executed at the direction of, a majority of the
Board.
13.

OCCUPANCY AND USE RESTRICTIONS.

In

order

to

provide

for congenial

occupancy of the Condominium Property and for the protection of the values of the Units, the
use of the Condominium Property shall be restricted to and shall be in accordance with the
following provisions:
13. 1

Use

of

City Unit. Upon substantial completion of the Project, the City Unit shall

be used for parking uses and access thereto and/ or any other permissible use under applicable
law. At all times during which the City Unit is operated as a municipal parking garage at least
130 parking spaces shall be made available to the general public during the hours of 9: 00 a.m.
and 8: 00 p.m.
13. 2

Use

of

BRP Unit.

only for retail and

Requirements. The following

be

used

Upon substantial completion of the Project, the BRP Unit may

commercial uses to the extent permitted by applicable Legal
uses shall be prohibited on the BRP Unit:
17

MIAMI 1746636. 8 7829330796

a)

Adult"

"

related paraphernalia.

For

bookstores or cinemas or establishments for the sale of drug-

purposes of

this

subparagraph:

"

Adult" bookstores or cinemas shall

mean and include any establishments which sell or offer for sale or display any merchandise
which is distinguished or characterized by emphasis on matter depicting, describing or related to
i) sexual activities or ( ii) fondling or erotic touching of the body; and " establishments for the
sale of drug- related paraphernalia" shall mean and include establishments which sell or offer for
sale any merchandise which is commonly used or intended for use with or in the consumption of
any narcotic, dangerous drug or other controlled substance;
b)

Pawn shops;

c)

Soup kitchen, homeless shelter or other similar facility;

d)

Mental health

e)

Gambling or bingo facility;

f)

Auction

g)

Funeral home;

h)

Laundromat ( excluding

facility,

substance

abuse facility or other rehabilitation

center;

duds"

suds and

luxury

excluding

feet

of gross

facility;

market"

Automobile, recreational vehicle or mobile home sales, rentals or repairs,

or so- called " exotic" automobile sales; or

0)
Furthermore,

flea

any laundromats with a secondary use such as the

or dry cleaners with on premises cleaning plants or facilities;

operation)

i)

or"

Manufacturing facilities.

in no event shall any business or retail operation in the BRP Unit exceed 15, 000
area. Without limiting the generality of the foregoing, the BRP Unit shall

leasable

be divided into

none of which exceed 15, 000 square feet of gross leasable

at all

times

area;

and there shall be no interior connections between two or more spaces if the total gross

spaces,

leasable area of such spaces would exceed 15, 000 square feet of gross leasable area in the
aggregate.

The provisions of this Section 13. 2 shall survive any termination of this Condominium and shall
remain in full force and effect.
13. 3

Rules.

Reasonable

nondiscriminatory

and

consistently

enforced

rules

and

regulations may be established by the Association.

13. 4

Conduct

of

Work. From and after completion of the Project, all work performed

by any Unit Owner shall be performed in a prompt, good, workmanlike, lien-free manner, and in
a manner which minimizes disruption of or interference with the operation of the other Units.
Once commenced, such work shall be performed continuously and with due diligence, and,
promptly

upon completion thereof,

the

area

in

which

the

work was

performed,

and any other

areas affected thereby, shall be restored to at least as good condition that they were in prior to the
18
MIAMI 1746636. 8 7829330796

performance

Declaration,
portions

of

of such
each

the

Except only when expressly provided to the contrary in this

work.

Owner

will

Condominium

be

for

responsible

Property

within

maintenance,

its Unit.

repair

and

replacement

of all

Any construction activity in the Unit

shall be performed in a manner that minimizes inconvenience to and disruption of the operation
of the other Units.
13. 5

Plans Availability.

Each Owner shall retain all plans and specifications for any
work performed by it, and shall make same available to all other Owners from time to time upon
reasonable request therefor ( and any other Owner may duplicate any such materials, at its cost).
The foregoing is agreed to in recognition of the fact that such materials may facilitate the
maintenance, repair and replacement of facilities within the Condominium Property. Each Owner
disclaims any

113.

and

fully

representation or

Compliance
with all

comply

warranty as to

with

the accuracy of any such materials.

Lel4al Requirements.

Legal Requirements that

Each Owner shall at all times promptly

pertain

to its Unit, whether or not any such

Legal Requirements shall necessitate structural changes or improvements to or interfere with the
use and enjoyment of

all

reasonable

of any
other
Legal Requirements.

requests

compliance with

Requirements,

the Condominium

or

their

Property.

Each Owner further agrees to cooperate with

Owner in

respect

of

resolving

issues pertaining to

Either Owner shall have the right to contest any Legal

applicability, through

all

available

lawful

means,

and

may

defer

compliance with any Legal Requirement while it is so contesting same in good faith and
diligently, so long as the contesting Owner takes all steps reasonably required to stay any
enforcement action or otherwise prevent material adverse impact to any other Owner or the
Condominium Property.
13. 7

Cooperation.

All

easements

granted

in this Declaration, and the use thereof,

shall be deemed to be limited to the extent reasonably necessary to accomplish the purposes for
which such easements are granted.

Each Owner agrees to cooperate with the reasonable requests

of any other Owner in furtherance of the spirit and intent of the matters addressed in this
Declaration.
13. 8

Odors.

No Owner shall permit any offensive odors to exist on the Condominium

Property. All Owners recognize and agree that it is difficult to control odors within the loading
and compactor/ trash areas

due to the

nature of

the

use of

those

areas and, although reasonable

steps to minimize odors from those areas will be taken, the provisions of this Section 13. 8 shall

be interpreted to give due consideration to the difficulty in controlling odors in these areas.
13. 9

Hazardous Materials. Each Owner agrees that it will not generate, use, store or

dispose of any hazardous materials or substances on any portion of the Condominium Property
except

in full

compliance with

all

Legal Requirements. Hazardous substances or materials for

purposes of the foregoing shall mean any substances or materials that are from time to time
designated as such by, or whose generation, use, storage or disposal is regulated pursuant to, any
Legal Requirements. If any Owner receives any notice of the release of a hazardous material or
substances

affecting the Condominium

Property, it

shall

promptly notify

all other

Owners,

and

each Owner shall cooperate with all reasonable requests of any other Owner in respect of
at no cost to the Owner being requested to cooperate except to the extent such

remediation,

Owner breached the provisions of the first sentence of this Section 13. 9.

19
MIAMI 1746636. 8 7829330796

i
i

Government Compliance.

13. 10

Each Owner

City ( in its regulatory

capacity and not as an Owner of a Unit) or other applicable governmental authorities may require
the joinder by all Owners in applications for permits to perform work within the Condominium
Property. Each Owner desiring to perform work shall, if so required, submit any such
applications to all other Owners for review, approval and joinder, which will not be unreasonably
withheld, delayed or conditioned, provided the work for which the permit is being sought is in
accordance
with
the terms of this Declaration ( including compliance with all Legal
Requirements, including approvals required by the City in its regulatory capacity). Each Owner
further acknowledges being aware that, in connection with permitting pertaining to any portion
of the Condominium Property, the Owner applying for such permit may have to submit plans for
the entire Condominium Property and, if this is required by applicable governmental authorities,
a)

each

Owner

shall

cooperate

acknowledges

with

all

others,

at

that the

agrees

and

no

the

to

cost

cooperating

Owner,

in

accomplishing this in a manner that minimizes delay in the application process.

b)

Each Owner

Legal

Requirements,

five business days

furnish to any
other Owner a copy of any notices received from any governmental authority pertaining to any
violation

of

shall,

within

compliance

with

to

respect

of receipt,

which

is

or

be the

may

responsibility of any other Owner.

14.

SELLING, LEASING

OR TRANSFERRING

OF UNITS.

restriction on selling, leasing

transferring any Unit in
shall have the right to mortgage its Unit without restriction.
or otherwise

15.

COMPLIANCE

Association

shall

be

AND

Each

DEFAULT.

by

governed

may be

and

shall

Owner,

There

whole or

occupant

in

of

part.

shall

be

no

Each Owner

Unit

and

the

comply with the terms of the Condominium

from time to time.

The Association ( and Owners, if

Documents,

as

appropriate)

shall be entitled to the following relief in addition to the remedies provided by the

the

same

amended

Act.

Nealiaence.

An Owner shall be liable for the expense of any maintenance, repair

or replacement made necessary by such Owner's negligence or by that of such Owner' s invitees,
employees, agents or lessees, but only to the extent such expense is not met by the proceeds of
insurance actually collected in respect of such negligence by the Association.
15. 1

Costs

Attorneys' Fees.

In any proceeding arising because of an alleged

failure of an Owner to comply with the requirements of the Act, or Condominium Documents, as
the same may be amended from time to time, the prevailing party shall be entitled to recover the
costs of the proceeding and such reasonable attorneys' fees ( including appellate attorneys' fees)
as may be awarded by the court.
15. 2

16.

and

TERMINATION OF CONDOMINIUM.

terminated

by

condemnation

or

eminent

The Condominium

domain,

or ( ii)

as

more

shall

particularly

continue until (
provided

in

i)

this

such time as withdrawal of the Condominium Property from the provisions of

by a vote of Owners owning at least 75% of the votes allocated to all of the
Units in the Condominium and by any Institutional Mortgagee.
Declaration,
the Act

is

authorized

20
MIAMI 1746636. 8 7829330796

17.

ADDITIONAL PROVISIONS.

Additional Rights of Institutional Mortgagees.

17. 1

a)

In addition to all other rights set forth, Institutional Mortgagees shall have

the right, upon written notice to the Association, to:

books

i)

Examine

ii)

Receive an unaudited financial statement of the Association within

the

Association' s

and

records

during

normal

business hours;

90 days after the end of its fiscal year;

iii)

Receive notice of Association meetings and attend such meetings;

iv)

Receive notice of an alleged default by any Owner upon whose

Unit such mortgagee holds a mortgage, which is not cured within 60 days after notice of default
to such Owner;

Receive notice of any substantial damage or loss to any portion of

v)

the Condominium Property; and

Any proposed action that would require the consent of a specified

vi)

percentage of Institutional Mortgagees.

Any Institutional Mortgagee giving notice pursuant to this Article shall serve its
by registered or certified mail, return receipt requested, which
notice shall: ( 1)
identify each Unit upon which each such Institutional Mortgagee holds any
mortgage; and ( 2) designate the place to which notice are to be given by the Association to such
the Association,

notice . upon

Institutional Mortgagee.

encumbering

b)

Whenever

any

Condominium

consent

or

Parcel( s)

of any holder( s)
of any mortgage( s)
Condominium Property is required by the

approval

or

Condominium Documents to any amendment of the Condominium Documents, or to any action

of the Association or to any other matter relating to the Condominium, such consent may not be
unreasonably withheld. The Association may request such consent or approval of such holder( s)
by written request sent certified mail, return receipt requested ( or equivalent delivery evidencing
such request was delivered to and received by such holders). Any holder receiving such request
shall be required to consent to or disapprove the matter for which the consent or approval is
requested,

in

evidencing
be received

such request was

by

writing,

by

certified

mail,

delivered to

the Association

within

return

receipt

and received

30 days

after

by

requested

( or

equivalent

delivery

the Association), which response must

the holder

receives

such request.

If such

response is not timely received by the Association, the holder shall be deemed to have consented
to and

approved

the

matter

for

which such approval or consent was requested.

Such consent or

approval given or deemed to have been given, where required, may be evidenced by an affidavit
signed by an officer of the Association. Such affidavit, where necessary, may be recorded in the
Public" Records of the County and shall be conclusive evidence that the applicable consent or
approval was given as to the matters therein contained. These provisions shall not apply where
21
MIAMI 1746636. 8 7829330796

i
i

an Institutional Mortgagee is otherwise required to specifically join in an amendment to this

Declaration.

Assignment

17. 2
portion of

Developer' s

assignment,

Developer

the

shall

assignee

assigned

Developer' s Rights.

of

rights set

to it.

Developer may assign the whole or any

forth in the Condominium Documents. In the event of a partial

not

be deemed " Developer"

but may exercise any rights of

Any such assignment may be made on a non-exclusive basis.

Limitation of Liability. The liability of each Owner for Common Expenses shall
17. 3
be limited to the amounts assessed against the Owner from time to time in accordance with the

Each Owner shall be liable for injuries or damages resulting from an

accident in its own Unit to the same extent or degree that any other property owner would be
Condominium Documents.

liable for such an occurrence.

Covenant Running With

17. 4
Documents

the

Land.

All

provisions

of

the

Condominium

the extent applicable and unless otherwise expressly provided to the

to

shall,

contrary, be perpetual covenants running with the Land and with every part and interest therein,
and all of the provisions shall be binding upon and inure to the benefit of Developer and
subsequent

owner( s)

of

the Land

or

any

part

or

it be

construed as

future Owners,
provisions of

acceptance

occupancy

rights

in

or

for the benefit

of

the

general public.

All present and

tenants and occupants of Units shall be subject to and shall comply with the

the Condominium Documents,

as

they may be

amended

from time to time.

The

conveyance, or the entering into of a lease, or the entering into

shall
constitute an adoption and ratification of the provisions of the
any Unit,

of a
of

creating any

interest therein, and their respective heirs,

This Section is not intended to create nor shall

personal representatives, successors and assigns.

deed

or

Condominium Documents, as they may be amended from time to time, by such Owner, tenant or
occupant.

17. 5
or

the.

Notices. All notices to the Association required or desired under this Declaration

By- Laws

shall

be

courier service ( such as

with

the Florida

sent

by

certified or registered mail ( return receipt requested),

Federal Express)

Secretary

of

express

or hand delivery to the Association at its address listed

State, or to such other address or in such other manner as the

by notice in writing to all Owners. Except as

otherwise specifically provided in the Act or this Declaration, all notices to any Owner shall be
sent by first class mail ( return receipt requested), express courier service ( such as Federal
Express) or hand delivery to the Condominium address of such Owner, or such other address or

Association may designate from time to time

in such. other manner as may have been designated by an Owner from time to time, in writing, to
the Association.

All notices to mortgagees of Units shall be sent by first class mail to their
or such other address as may be designated by them from time to time, in

respective addresses,

writing, to the Association. All notices shall be deemed to have been given when received or, if

mailed, within three days following mailing in a postage prepaid sealed wrapper.
17. 6

No Time- Share Estates.

No time- share estates will or may be created with

respect to any Unit.

17. 7

Exhibits.

There is incorporated into this Declaration any materials contained in

the Exhibits which under the Act are required to be part of the Declaration.

22
MIAMI 1746636. 8 7829330796

City and BRP acknowledge that, due to City' s ownership of the City Unit
City should be entitled to an exemption from real estate and personal property taxes and
assessments. Each Unit Owner agrees to cooperate with City, at no cost to such Unit Owner , in
attempting to realize said exemption. The foregoing shall include modifying this Declaration to
the extent necessary. Each Unit Owner ( other than City) shall pay prior to delinquency all taxes
17. 8

and

Taxes.

assessments,

and personal,

real

general

whether

or

special,

levied

against

its Unit.

The

foregoing shall not preclude either City or any other Unit Owner from contesting taxes, so long
as appropriate steps are taken to prevent a sale of the Unit on account of non-payment thereof.
The Owner appealing taxes

shall

be

for the full

responsible

costs

for any

such

appeal.

Each

Owner agrees to cooperate with all reasonable requests of the other in an attempt to have any
of the Condominium Property reasonably requested by the other, or any component
thereof, separately assessed for tax purposes.
portion

Sil4nature

17. 9
or

the

Secretary

substituted

Secretary

of

of

President

Association is

the

for the President,

but the

and

the signature of a vice-president may be

and the signature of the assistant secretary substituted for the

person

same

Secretary. Wherever the signature of the President

may

required,

not

execute

any

single

instrument on behalf of the

Association in two separate capacities.

GoverninjZ Law.

Should any dispute or litigation arise between any parties

whose. rights or duties are affected or determined by the Condominium Documents, as the same
may be amended from time to time, said dispute or litigation shall be governed by the laws of the
17. 10

State of Florida.
17. 11

Severability. The invalidity in whole or in part of any covenant or restriction, or

any article, section, subsection, sentence, clause, phrase or word, or other provision of the
Condominium Documents, as the same may be amended from time to time, shall not affect the

validity of the remaining portions thereof which shall remain in full force and effect.
17. 12

Waiver.

No provisions contained in this Declaration shall be deemed to have

by reason of any failure to

violations or breaches which may occur.
been

waived

17. 13

Ratification.

Each Owner,

law

enforce

by

the same, without regard to the number of

reason of

having

acquired

ownership ( whether

by

Unit,

by reason of his
occupancy, shall be deemed to have acknowledged and agreed that all of the provisions of the

purchase,

gift, operation of

or otherwise),

and each occupant of a

Condominium Documents are fair and reasonable in all material respects.

17. 14
the

plural,

the

Gender; Plurality.
plural

shall

Wherever the context so permits, the singular shall include

include the

and the use of any gender shall be deemed to

singular,

include all or no genders.

17. 15

Captions.

The

captions contained

in the Condominium Documents are inserted

only as a matter of convenience and for ease of reference and in no way define or limit the scope
of the particular document or any provision thereof.
17. 16
the Act

Statutory Warranty Liability.

with respect

to the BRP Unit and

BRP assumes all warranty liability imposed by

City from all such liability. City assumes all

releases

23
MIAMI 1746636. 8 7829330796

warranty liability imposed by the Act with respect to the City Unit and releases BRP from all
such liability.
17. 17

Force

MVlajeure Events.

Except in the

event

of

any emergency requiring

immediate action, whenever a period of time is prescribed in this Declaration for the taking of
any action by an Owner, such Owner shall not be liable or responsible for, and there shall be
excluded

God,

from the

computation of such period of

time, any

delays due to

strikes, riots, acts of

shortages of labor or materials, war, governmental laws, regulations or restrictions, or any

other cause whatsoever beyond the control of such Owner.

IN WITNESS WHEREOF, Developer has executed this Declaration as of the date

indicated above.
Signed,

in the

sealed and

presence

Sign Name:

delivered

CITY OF MIAMI BEACH, FLORIDA, a municipal

f:

corporation

Print Name:- L\

k.m 4- 1

By:

Sign Name:
Print Name:

jP(v-k ATTEST:

6U

APPROVED AS TO
FORM& LANGUAGE
FOR

mey

24
MIAMI 1746636. 6 7829330796

UTiON

Date

Sign Name:_
Print Name

C
BAY ROAD PARTNERS, LLC

Sign Name:

Print Name:

By: SAY

ERS BRP, LLC,

anager

By:

Scott Robins, Managing Member

MARTIN A SCHWARTZ

MY COMMISSION# DD 524331
EXPIRES: March 26 2010
Bonded Thru Pichard Insurance Agency

25
MIAMI 1746636. 8 7829330796

ACKNOWLEDGMENTS
STATE OF FLORIDA

COUNTY OF. MIAMI-DADS

The forego g Declaration

Condominium

before

day of
as Managing Member of Bay Road Partners BRP,
2004 by
L C, a Florida limited liability company as manager of Bay Road Partners, LLC, a Florida
limited liability company, on behalf of such limited liability companies.
is per
ly known
of

was

acknowledged

me

this

Scott Robins,

to me or has produced a Florida driver's license as identification.

Sign Nam ..

MAI-ri n A

Print Name:
NOTARY PU
Print Name

LIC STATE OF FLORIDA

S
1 A

MY COMMISSION EXPIRES:

F`

pu

MARTIN A. SCHWARTZ
I

po=
f

MY COMMISSION# DD 524331
EXPIRES: March 26, 2010
Bonded Thru Pickard Insurance Agency

26
MIAMI 1746636. 8 7829330796

STATE OF FLORIDA

SS:
COUNTY OF MIAMI- DADE

day of March, 2009 by Matti H.

foregoing was acknowledged before me this
Bower, as Mayor of the City of Miami Beach, a municipal corporation of the State of Florida, on
behalf of such municipal corporation. She is personally known to me or has produced a Florida
The

driver' s license as identification.

Sign Name:

lv,

Print Name:

NOTARY PU
Print Name:

1114z
Y

LIC, STATE OF FLORIDA

IL2

Y r

-+

My Commission Expires:
KERRY HERNANDEZ

MY COMMISSION# DD 626373

EXPIRES: May 3, 2011

181F

F,.`

Bonded Thru Notary Pubfc Underwriters

522451_ 1

I
j

JOINDER
PURDY AVENUE COMMERCIAL CONDOMINIUM ASSOCIATION, INC., a Florida
corporation not

for

profit, agrees

to accept

all

the

benefits

and all of

the duties,

responsibilities,

obligations and burdens imposed upon it by the provisions of this Declaration and Exhibits
attached.

IN WITNESS
ASSOCIATION, INC.,
and

its

corporate seal

Signed,
in the

sealed and

WHEREOF,

PURDY

AVENUE

COMMERCIAL

CONDOMINIUM

has caused these presents to be signed in its name by its proper officer
2009.
affixed this
,
day of m A r"

to be

PURDY AVENUE COMMERCIAL

delivered

CONDOMINIUM ASSOCIATION, INC., a Florida

presence of:

t corporation

not

Sign Nam

By:
President

Print Namec ,,;,/I

Sign Name:
Print Name:

STATE OF FLORIDA
SS:

COUNTY OF MIAMI- DADE)

S
The

Se

foregoing
U,

joinder

zo,

was

acknowledged

asyNesident

ASSOCIATION, INC.,

Florida

of

before

me

day

thisi(

of

RW26h

PURDY AVENUE COMMERCIAL

corporation

not

for

profit,

by

CONDOMINIUM

on behalf of said corporation.

He/ She is personally known to me or has produced a Florida driver's license as identification.
i,

Sign Name:

Print Name:

NOTARY PUBLIC, STATE OF FLORIDA

Print Name

MY COMMISSION EXPIRES:
Y

CHARLES H. RATHER

Y'

:*:

MY COMMISSION# DD 715591
EXPIRES: September 17, 2011
Bonded Thru Notary Public Underwriters

28
MIAMI 1746636. 8 7829330796

r
i

PURDY AVENUE
Commercial Condominium

LEGAL DESCRIPTION:
All

of

Lot

ADDITION,
of

Lot

and

Lot

according
and

all

of

2,
to
Lot

Less
the
8,

the

plat

Block

according to the plat thereof,

MiarniDade County, Florida.
of

North

thereof,

as

14,

four ( 4)
as

feet

recorded

THE ALTON

recorded

in

of

in

the

Plat

East

1/

Book

at

of

said

Page

BEACH REALTY COMPANY' S

Plat

Book

at

Page

115,

Lot
144,

2,

Block

and

14A,

together

ISLAND VIEW

with

the

East

1/

both being recorded in the Public Records

CL

00
rn

v
c

IL
v
v

O
O

Mm
0

3
0

roN
O
N
O

O
Z

LEGA L

U6
U

EXHIBIT A

1< 1P'

PLAT OF ISLAND VIEW SUBDIVISION,

I0 I
SHEET 1 OF 1

PURDY AVENUE'
Commercial Condominium
STATE OF FLORIDA
SS
COUNTY OF MIAMI- DADE
ME,

BEFORE
personally
who

being by

1.
That
Florida.

the undersigned authority duly authorized to administer oaths and take acknowledgments,
DANIEL C. FORTIN, by me well known and known to me to be the person hereinafter described,
first duly cautioned and sworn, deposes and says on oath as follows, to wit:

appeared

me

he is duly registered and duly licensed land surveyor authorized to practice under the laws of the State of

2. Affiant hereby certifies that Exhibit B, together with the provisions of the Declaration of Condominium describing
the Condominium Property, is an accurate representation of the location and dimensions of the improvements and
so that the identification,
location, and dimensions of the common elements and of each unit can be determined
from these materials.
3.

That

the

elevations

shown

for

each

floor are

relative to

the

National

Geodetic

Vertical

Datum

of

1929.

This Certification made this day 31 of March, 2009, by the undersigned surveyor is made pursuant to the
provisions of Florida Statues 718. 104 and is a certification that this survey and legal description attached are such
that these materials, together with the provision of the Declaration describing the Condominium property, represent
4.

an

accurate

identification,

representation of the location and dimensions of the units and common elements so that the
location and dimensions of the common elements and each unit can be determine from these

materials.

5.

am

supervision,

licensed

duly
this

and
was

survey

practicing
made

and

professional

is true

and

surveyor
correct

and

in

mapper

to the

best

of

the State of
knowledge

my

Florida and, under my

belief, and this survey

and

meets the minimum technical standards set forth by the Florida Board of Land Surveyors pursuant to Section
472. 027

Florida

Statues.

ER AF IANT SAYETH NAUGHT.

FU
VY
I ,
INC.
653
F RTI

s ms
t;

j.

.;.

461'

4Y

Daniel
CL

C. Fortin, For The Firm

PROFESSIONAL SURVEYOR AND MAPPER
State of Florida

LS2853

o STATE OF FLORIDA

SSA

COUNTY OF MIAMI- DADE

The foregoing instrument was acknowledged before
personally known to me and who did not take an oath.

me

this

March

31,

2009

by

DANIEL

C.

FORTIN,

who

is

a4)

NOTARY

PUBLIC

State

of

Florida

FORTIN, LEAVY, S KILES,

INC,

CONSULTING ENGINEERS, SURVEYORS & MAPPERS

FLORIDA CERTIFICATE OF AUTHORIZATION NUMBER: 00003653

180 Northeast 168th. Street / North Miami Beach, Florida. 33162
Phone: 305- 653- 4493 / Fax 305- 651- 7152 /

ao

Email fls@flssurvey.com

N
O
O

Date

March

30,

2009

Dwg.

No.

6009- 004

Job.

No.

090258

EXHIBIT B

SHEET 1 OF 6

PURDY AVENUE
Commercial Condominium

LEGAL DESCRIPTION:
All

of

Lot

of

Lot

ADDITION,

Lot

and

and

2,
to

according

Less
the

North

the

thereof,

plat

Lot 8, Block
plat thereof,
as

all

according to the
MiamiDade County,
of

as

feet

recorded

THE ALTON

14,

of

four ( 4)

in

recorded

the

of

Plat

in

BEACH
Book

Plat

East

1/

Book

at

of

said

Page

Block

2,

Lot
144,

and

14 A,

together

ISLAND

with

the

VIEW
East

1/

REALTY COMPANY' S PLAT OF ISLAND VIEW SUBDIVISION,

6

at

Page

115,

both being recorded in the Public Records

Florida.

The above described perimetrical boundary for the BRP Unit lies between an elevation of 4. 8 feet and 20. 8 feet,
relative

to the

National

Geodetic Vertical

Datum

of

1929.

and

The above described perimetrical boundary for the City Unit lies between an elevation of 20. 8 feet and 500. 0 feet,
relative to the

National

Geodetic Vertical

Datum of

1929.

SURVEYOR' S NOTES:
in

This site
Florida.

lies

Bearings

hereon

Sunset
Lands

Sheets

Harbour
shown

and

Dimensions

Section

are

are

shown

53

Township

to

referred

Drive (

hereon

33,

an

South,

assumed

42

Range

value

of

East,

City

D0* 00' 00"

of

Miami

Beach,

MiamiDade

County,

E for the East right of way line of

Purdy Avenue).

containing
not

hereon

a "

22, 950

Land

are

square

feet,

or

0. 527

acres,

more

or less.

Survey" but only a graphic depiction of the description shown hereon.

based

on

Fortin,

Leavy,

Skiles,

sketch #

1009- 018.

00a
rn0
M
0
r7

V
C
IL

M
0

3
0

Vco

LEGAL DESCRIPTION &

0
0

C;

SURVEYOR'S NOTES

EXHIBIT B

SHEET 2 OF 6

PURDY AVENUE
Commercial Condominium

CANAL

35

133

MIND

LEMS3(

P!Pt tr C*--,,

11/ 14/ 07,

IN,

Uj

1;/

31

70UNr NA; L&

LB-M53(

32

36
I'

34

28

27

26

STREET

20TH

K--ov-40 1A PIPE

37

DIU

Fou 40
1_-/' 112. PIPE

LLJ
W

29

30

14/ 07)

FWN3 i/ j- PIFE a r-Ap

2!
UWJ

38

I --:

U)
39

co

a
14

10

13-

77777717

U)

70

3:

LLJ
40
0
C'

LL

10

10

13

I .

12

2- -

13

N93' r)rj' Cf)" E

220DU

18TH

14

STREET

f0UNrJ CUT NA-1

CD

P
0

This

site

lies in Section 33,

City

of

Miami Beach,

Township

53 South, Range 42 East,

Miami- Dade County, Florida.

n-

N
NOT TO SCALE
V)
100

OO
O
Z

LOCATION SKETCH

EXHIBIT B

SHEET 3 OF 6

PURDY AVENUE
Commercial Condominium
fl

I1t1a LIM Y_.

ISLAND VIEW ADDITI

fl

A
E 14 1

R17sPAMY

Dos

cm

iI

...

MWIIOU`

RN EL40D

Of

y{ EL'

W,

x07

Ir

WHY OF' NAT

PLAY ROOK

WHY or WA
PLAT ROOK N

PACE 141

PACE IM
ALO

41

OF WAY

RIGHT w wAY
PLAT ROOK 9
PACE 1+ 4

K 9

144

182 S I OW BUILUING
r- FOUND
S.

CORNER

TRUE CORNER

IRON PIN

4'

75) (

ac

"

w171s

INACCESSIBLE
FOUND

3/ 17/ 09)

PK NAIL

1v

NO I. D.(
S? STORY RUO D WG
1919

FLOOR OEVA>toN Ste

L>

c urArz FLOOR

1a .,

b _
ws..-...,

I1 J

m,

OUI

4, J:r: 1'
ll(-

DI51[.
H1TNf55
ORNCR
1. 00' OFFWT.

LQT%

i-.

Y t

SET NAIL$

Hopes

3/ 17/ 09)

-,

77F,

t^.:

D EoNinc

13 .

gT NAIL a1 a9i'

LB 3053(

p yy

3/ 17/ 09)

Q
wm

Dot S 7WIM

p_

J'

eAre

c1

ASPHALT

1 '

.,

boa+ tanatnNNl

TENCE'
u

ft:

qqq

KSr ROHri OF

WAY LNE

W DAl ROAD

I..0T I

a'

nNON

GLAMLIVR

Wam POWWGI

FENCE

POLE( T1'P) r:,

yy
3

fASi RIGHT OF WAY UNE

M

Q- URDV AVENUE)

C!

71

PLAT E+::r(; iiC 9 PAGE 1. 44

z7 -

I' L. AT 1300K

PA

E 116

LO,r F

swTH

USE
OT LOf!
.

ggE

UGHr POLE

la
r1P

odd]lll

y
y'

ij
R

Q.

r OF w. Y

0`

r4oH7 or

PLAY

FOUND REBAR
NO Imo.

W. MR ER
I.

FOUND

43/ 17/ 09)

a

Lor

1/

PIPE

NO I.D.( 3/1 71109)

ma. a
Ull

CP

JSDO'

ASPHALT

JSLO'

NCSS OF WAY

POOR CONDHRON)

PUT BOIS

PAGE

Cr

O
o

osN

r/

Y [

I- M101 CNA"
FENCE

IEANING
NO WEST)

DIMP POU:

FOUND 1/ 2'
NO I. D.

PIPE
09)

CR. 19 OP LO7 l
sE cwxu

nO ID.

IT
r--

THE ALT(.,

aGl
0

Lor

SET 1/ 2' PIPE dE CAPJ

LB3653( 3/ 17/ 09)

20

11

r000k

PACE 115 R

ECU1N USE

GRAPHIC

RIGHT OF WA

IL

11

SCALE

BEACH REALTY COMPANY'S

PI...AT r--.,
F ISLAND VIEW SURDIVISION

P1 AT BOOK F PAGE 115

BO

40

IT)
cV

En

IN FEET )
0

inch =

40

ft.

BOUNDARY SURVEY

U0

EXHIBIT B

SHEET 4 OF 6

PURDY AVENUE
Commercial Condominium
ISLAND VIEW ADDITIC
PLAT BOOK 9 PAGE 144

LOT 3

S90 00' 00" E

75. 00'

NORTH: LINE..

OF LOT 2

CORNER

N. W.

OF

75. 00'

S90 00' 00" E

800. 00'00" W.

LOT 2

4. 00,

O N

11

OJ

LOT 2 -

FOf LL

O O
Z.

EAST : 1/

L.L

2 OF LOT.. 2
O

a
m

00

Q LL0

W
>

WEST RIGHT OF WAY. LINE

I-

OF BAY ROAD

n
J

LOT i

LLJ

ST RIGHT : OF` WAY. LINE OF.::'

SUNSET HARBOUR

m a

DRIVE

PURDY:. AVENUE

rr

vJ

SOUTH LINE:
t. OF: LOT: 8: . .

LOT e

V 1
00001001'

75. 00'

S. W. CORNER/
OF LOT 8

cn

O ,

t`

35. 00'

35. 00'
RIGHT OF

PAGE

RIGHT OF WAY

WAY

PLAT BOOK

115

I
I

PLAT BOOK 6

EAST

LO

1/

2 OF

LOT

PAGE 115

LU

Q 0

o
N

PLAT OF ISLAND VIEW SUBDIVISION

Common Element below

elevation of

GRAPHIC
0

4. 8 feet.

is

N
1

CONDOMINIUM

EXHIBIT B

SCALE

30

60

inch =

30

ft.

UNIT

BOUNDARY LINE

0
U

CORNER

OF LOT 7

IN FEET )

a,

LEGEND:

S. E.

6 PAGE 115

NOTES:
The perimetrical boundary of the BRP Unit lies between
an elevation of 4. 8 feet and 20. 8 feet and is relative to
the National Geodetic Vertical Datum of 1929.

001

THE ALTON BEACH REALTY COMPANY' S

PLAT BOOK
M

75.

NW00' 00" W

LO- 6

SOUTH LINE
OF LOT 7

I
o

BRP

TNIT

SHEET 5 OF 6

PURDY AVENUE
Commercial Condominium
ISLAND VIEW ADDITIC
PLAT BOOK 9 PAGE 144

Lora

S90 00' 00" E

NORTH

N. W. CORNER
OF LOT 2

75.00'

LINE

OF LOT 2

75. 00'.

S90000, 00' E
S00 00' 00'' W
4.

0011.

LOT
D' Li
00,

EAST 1/

o,

2- OF LOT 2

LL

Q
LL

CO >

WEST RIGHT OF WAY LINE

OF BAY ROAD:

0
fL

LOT 1

ST

%/-

RIGHT OF WAY LINE OF

m n

DRIVE,

SUNSET HARBOUR

PURDY AVENUE)

z
V1

LL

SOUTH LINE:
OF L0T.
.
8

LOr

V/

75. 00'

a oa' oo w
CORNER-/

S. W.
OF

LOT 8

U)

0
r`

35. 00'

35. 00'

RIGHT 0 F

PLAT BOOK
PAGE

RIGHT OF WAY
PLAT BOOK 6

WAY

LO- 7

115

EAST 1/

2 OF LOT 7

PAGE

115

W
C3

SOUTH
C)

NOTES:
The perimetrlcal

PLAT OF ISLAND VIEW SUBDIVISION

boundary

of

the

City

Unit lies between

GRAPHIC

an elevation of 20. 8 feet and 500. 0 feet and is relative to

Common Element below

elevation of 4. 8

feet.

EXHIBIT B

SCALE

30

60

inch =

30

ft.

UNIT

BOUNDARY LINE

0
U

CORNER

OF LOT 7

IN FEET )

1
CONDOMINIUM

15

LEGEND:

S. E.

6 PAGE 115

the National Geodetic Vertical Datum of 1929.

LO

1\\-

THE ALTON BEACH REALTY COMPANY' S

PLAT BOOK
M

75. 00'

N90200' 00" W

Lo- 6

LINE

OF LOT 7

CITY UNIT
SHEET 6 of 6

EXHIBIT C

Allocation of Shares of Common Elements=

Common Expenses and Common Surplus

The

undivided

share

in Common Elements, Common Expenses and Common

Surplus (" Undivided Share") for each Unit shall be as follows:

Share of Common Elements, Common

Unit

Expenses and Common Surplus

Unit

65%

BItP Unit

35%

City

MIAMI 1746636. 8 7829330796

EXHIBIT D

By Laws

MIAMI 1746636. 8 7829330796

I

BY- LAWS

OF
PURDY AVENUE COMMERCIAL

CONDOMINIUM ASSOCIATION, INC.

A corporation not for profit organized

under the laws of the State of Florida
1.

These

Identity.

CONDOMINIUM
incorporated

By- Laws

the

are

under

laws

the

administering that certain

State

the

of

condominium

PURDY

of

(" Association"),

INC.

ASSOCIATION,

Florida

of

corporation

County,

for

not

for the

organized

and

located in Miami-Dade

COMMERCIAL

AVENUE

profit

purpose

of

Florida and known as

PURDY AVENUE COMMERCIAL CONDOMINIUM (" Condominium").

Principal Office.

1. 1

Convention Center Drive,

designated

the Board

by

The

office

principal

of

the

Association

shall

be

at

1700

Miami Beach, Florida, or at such other place as may be subsequently

of

Directors. All books and records of the Association shall be kept at

its principal office.

Fiscal Year. The fiscal year of the Association shall be a calendar year.

1. 2

Seal. The seal of the Association shall bear the name of the corporation, the word

1. 3
Florida", the
2.

words "

Corporation Not For Profit", and the year of incorporation.

Definitions. For

the Articles

of

these

convenience,

Incorporation

of

By- Laws

the Association

as

shall

be

referred

the " Articles."

to

as

the "

By- Laws"

and

The other capitalized terms

used in these By-Laws shall have the same definition and meaning as those set forth in the
Declaration of Condominium for the Condominium or the Articles, unless otherwise provided in

these By- Laws, or unless the context otherwise requires.

3.

Members.
Annual

3. 1
place and at

MeetinIt. The annual Members' meeting shall be held on the date, at the

the time determined

by

the Board of

Directors from time to time. There shall be an

annual meeting every calendar year and, to the extent possible, no later than 13 months after the
last preceding

annual

The

meeting.

purpose

of

the meeting

shall

be,

except

as

otherwise

to elect or appoint Directors and to transact any other business authorized to be

transacted by the Members, or as stated in the notice of the meeting sent in advance to Owners.
provided,

3. 2
provided

of

for

the Board

Special Meetings.
annual meetings.
of

Directors

of

Special meetings of Members shall be held at such places as

Special meetings may be called by the President or by a majority

and must be called by the President or Secretary

the Association,

upon receipt of a written request

from

Member

of

the Association. The business conducted at a

special meeting shall be limited to that stated in the notice of the meeting.
3. 3

Participation

by Owners. Each Owner shall be a Member of the Association.

Subject to the following and such further reasonable restrictions as may be adopted from time to

MIAMI 1759573. 3 7829330796

time

by

the

Board, Owners may

Members,

speak at annual and special meetings of

committee

meetings and Board meetings with reference to all designated agenda items.
3. 4

Notice

Meetinp_;Waiver

Notice.

Notice of a meeting of Members stating

the time and place and the purposes for which the meeting is called shall be given by the
President or Secretary. A copy of the notice shall be posted at a conspicuous place on the
Condominium Property. The notice of the annual meeting shall be sent by mail to each Owner,
unless the Owner has waived in writing the right to receive such notice. The delivery or mailing
shall

be to the

of

of

address

the Member

as

it

of

the roster of Members.

appears on

Where a Unit is

owned by more than one person, the Association shall provide notice, for meetings and all other
purposes, to a single address initially identified for that purpose as one or more of the Owners of
the Association in writing,

if

is

if the Owners

the Unit

shall

disagree,

or if the Association is reasonably unsure as to where to send notice for any reason,

notice shall

be

so

advise

to the

sent

address

for the Owner

or,

as set

forth

no

on

address

the

deed

of

given,

the Unit.

The posting

and mailing of the notice shall be effected not less than 14 nor more than 60 continuous days
to the date of the meeting. Proof of mailing of the notice shall be given by retention of post
The Board shall adopt by rule, and give notice to Owners of, a
office receipts or by affidavit.
specific location on the Condominium Property upon which all notices of Members' meetings
prior

shall be posted.

Notice of specific meetings may be waived before or after the meeting and the attendance
of

any Member ( or

waiver

of

notice

person authorized

of

such

to

vote

for

such

except

meeting,

Member) shall constitute such Member' s

when

such

Member' s

or

his

authorized

attendance is for the express purpose of objecting at the beginning of the

meeting to the transaction of business because the meeting is not lawfully called.
representative' s)

Quorum.

3. 5
either

in

person or

by

proxy,

quorum
of

at

Persons

Members'
entitled

to

meetings shall be attained by the presence,

cast at

least 75% of the votes of Members at

such meeting.
VotinLr.

3. 6

Votes.

An Owner shall be entitled to cast one vote for each ,

a)

Number

b)

Majority Vote. The acts approved by a majority of the votes at a meeting

of

Unit owned.

at which a quorum shall have been attained shall be binding upon all Owners for all purposes
except where otherwise provided by law or the Condominium Documents. As used in these ByLaws, the Articles
Members"

shall

or

mean

the Declaration, the terms " majority of the

those Owners

having

more

Owners"

and "

majority of the

than 50% of the then total authorized votes

the Owners at which a quorum

have been

Similarly if
some greater percentage of Members is required in these By-Laws or in the Declaration or
Articles, it shall mean such greater percentage of the votes of Members voting and not of the
voting

at

any meeting

of

Members themselves.
c)

Voting Member.

By- Laws
2

MIAMI 1759573. 3 7829330796

shall

attained.

i)

If a Unit is owned by one individual, such individual' s right to vote

by the roster of Members. If a Unit is owned by more than one
individual, any individual Owner shall be entitled to cast the vote for the Unit unless a
specific individual shall be designated by a certificate signed by all of the record owners
of the Unit according to the roster of Owners and filed with the Secretary of the
shall

be

established

Such designated individual

Association.

need

not

be

an

Owner, nor one of the joint

If more than one co- owner is present in person or by proxy and the co- owners

owners.

cannot agree on a particular vote then the right to vote on that subject matter shall be
forfeited.

ii)

If a Unit is owned by the City of Miami Beach, the vote for such
Unit shall be cast by the City Manager or his or her designee pursuant to a written
instrument executed by the City Manager.
iii)

If a Unit is owned by a corporation, limited liability company, or a

partnership, the individual entitled to cast the vote for the Unit shall be designated by a
certificate signed by an appropriate officer of the corporation, appropriate signatory of
the limited liability company or a general partner of the partnership and filed with the
Secretary of the Association. Such individual need not be an Owner. Those certificates
shall be valid until revoked or until superseded by a subsequent certificate or until a
change in the ownership of the Unit concerned.
A certificate designating the person
entitled to cast the vote for a Unit may be revoked by any record owner of an undivided
interest in the Unit. If a certificate designating the person entitled to cast the vote for a
Unit for which such certificate is required is not on file or has been revoked, the vote of
the Owner( s)
present, nor

of such Unit shall not be considered in determining whether a quorum is

for any

In such case, the total number of authorized votes in

other purpose.

the Association shall be reduced accordingly until such certificate is filed.

iv)

If

without

being

above.

Such designee

Unit is

to do so,

required

need not

jointly by a husband and wife, they may,

designate a voting Member in the manner provided

be

owned

an

Owner.

In the event a husband and wife do not

designate a voting Member, the following provisions shall apply:

If both are present at a meeting and are unable to concur in
upon any subject requiring a vote, they shall lose

x)

their decision
their

right

to vote on that subject at that meeting, and their vote

shall not be considered in determining whether a quorum is present

on

that

subject at

the meeting ( and the total number of authorized

votes in the Association shall be reduced accordingly for such

subject only).

y)
If only one is present at a meeting, the person present shall
be counted for purposes of a quorum and may cast the Unit vote
just as though he or she owned the Unit individually, and without

establishing the concurrence of the absent person.

By- Laws
3

MIAMI 1759573. 3 7829330796

If both are present at a meeting and concur, either one may

z)

cast the Unit's vote.

Votes may be cast in person or by proxy.
Except as specifically
Owners may not vote by general proxy, but may vote by limited proxies.
shall be permitted for votes taken to: waive or reduce reserves; waive financial

Proxies.

3. 7

otherwise provided,

Limited

proxies

statements; amend
other matter

for

matters

the Declaration, Articles

requiring
which

permitting
limited proxies

nonsubstantive changes

to items for

are

Owners.
required

not

which a

By- Laws; or, except as indicated below, for any

General proxies may be used for other

or

a vote of

or

and

limited proxy is

may

also

be

used in voting for

required and given.

A proxy may

be made by any person entitled to vote, but shall only be valid for the specific meeting for which
originally given and any lawful adjourned meeting. In no event shall any proxy be valid for a
period
shall

longer than 90 days

be

revocable at

after

any time

at

the date
the

of

the

first meeting for

pleasure of

the

which

it

was given.

Every proxy

executing it. A proxy must be filed in

the vote for the Unit ( as above described) and
person

by the individual authorized to cast

filed with the Secretary at least 24 hours before the appointed time of the meeting, or before the
time to which the meeting is adjourned. Holders of proxies need not be Owners. Each proxy
shall contain the date, time and place of the meeting for which it is given and, if a limited proxy,
shall set forth the matters on which the proxy holder may vote and the manner in which the vote
is to be cast. There shall be no limitation on the number of proxies which may be held by any
person.
If a proxy expressly provides, any proxy holder may appoint in writing, a substitute to
writing,

act

signed

in his

or

3. 8

her

place.

If such provision is not made, substitution is not permitted.

Adjourned Meetings.

If any proposed meeting cannot be organized because a

present, either in person or by proxy,
may adjourn
the meeting from time to time until a quorum is present, provided notice of the newly scheduled
meeting is given in the manner required for the giving of notice of a meeting. Unless revoked by
a Member for any reason, proxies given for the adjourned meeting shall be valid for the newly
quorum

has

not

been

attained,

the Members

scheduled meeting.
3. 9

Order

of

Business. If a quorum has been attained, the order of business at annual

Members' meetings, and, if applicable, at other Members' meetings, shall be:

a)

Call to order by President;

b)

Appointment

by

the President

of a chairman of

the meeting ( who

need not

be a Member or a director);
c)

Proof of notice of the meeting or waiver of notice;

d)

Reading of minutes;

e)

Reports of officers;

f)

Reports of committees;

g)

Determination of number of Directors to be elected or appointed;

By- Laws
4

MIAMI 1759573. 3 7829330796

r1

h)

Election or appointment of Directors;

i)

Unfinished business;

j)

New business;

k)

Adjournment.

Such order may be waived in whole or in part by direction of the chairman.

3. 10

Minutes

of

Meeting. The minutes of all meetings of Members shall be kept in a

book available for inspection by Owners or their authorized representatives and Board Members
at

any

reasonable

The Association shall retain these minutes for a period of not less than

time.

seven years.

3. 11
Act

Action Without A Meeting. To the extent lawful and not inconsistent with the

the Declaration,

any action required or permitted to be taken at any annual or special

meeting of Members, may be taken without a meeting, without prior notice and without a vote if
a consent in writing,
setting forth the action so taken, shall be signed by the Members ( or persons
authorized to cast the vote of any such Members) having not less than the minimum number of
votes that would be necessary to authorize or take such action at a meeting of Members at which
a quorum is obtained.
Any action by written consent shall not be effective unless signed by
Members having the requisite number of votes necessary to authorize the action within 60 days
of the date of the earliest dated signature and receipt
by the Association. Any written consent
may be revoked prior to the date the Association receives the required number of consents to
authorize the proposed action.
A revocation is not effective unless in writing and until received
by the Secretary of the Association, or other authorized agent of the Association. Within 10 days
after obtaining any action by written consent, notice shall be given to Members who have not
consented in writing.
The notice shall fairly summarize the material features of the authorized
or

action.

4.

Directors.
4. 1

Membership. The affairs of the Association shall be governed by a Board of five

Directors. Directors need not be Owners.

4. 2
of

Election

Members,

of

Directors.

except as provided

Election of Directors shall be held at the annual meeting

By- Laws to the contrary. The Class A Member shall

in these

elect or appoint three directors and the Class B Member shall elect or appoint two directors.
4. 3

Vacancies

Removal.

The Directors elected or appointed by the Class A

elected or appointed by
Vacancies created by
resignation or removal may be filled only by the Member responsible for the election or
and

Member may be removed only by the Class A Member. The Directors

the Class B Member may be removed only by the Class B Member.
appointment of such Directors.

4. 4
Director' s

Term.
service

Except

shall

as provided

extend

until

the

to the contrary
annual

next

By- Laws
5

MIAMI 1759573. 3 7829330796

in these

meeting

of

By-Laws,

the term of each

the Members, or until the

Director is

in the

removed

manner elsewhere provided.

If no person is designated to replace a

Director whose term is expiring, such Director shall be automatically reappointed to the Board of
Directors and need not stand for reelection or reappointment. A Director charged with a felony
theft or embezzlement offense involving the Association's funds or property shall be removed
from office, creating a vacancy in the office to be filled in accordance with these By- Laws. If a
person has any such criminal charge pending, he or she may not be appointed or elected to a
However, should the charge be resolved without a finding of guilt, the
position as a Director.
person shall be reinstated for the remainder of his or her term of office, if any.
Orl4anizational Meeting. Except for the Directors designated in the Articles, the

4. 5

organizational meeting of newly- elected or appointed Members of the Board of Directors shall
be held within 20 days of their election or appointment at such place and time as shall be fixed

by the Directors at the meeting at which they were elected or appointed.

organizational meeting shall be provided in accordance with Section 4. 6.
4. 6

Meetinl4s.

Meetings of the Board of Directors may be held at such time and place
by a majority of the Directors. Notice of meetings
Director, personally or by mail, telephone, fax, email or telegraph, and

be determined, from time to time,

as shall

shall

be

shall

be transmitted

and

Notice of the

given

to

each
at

the Board

committee of

any

least three days

shall

prior

be

to the meeting.

open

to

all

Meetings of the Board of Directors

Owners. Notice of Board meetings shall be

posted conspicuously on the Condominium Property at least 48 continuous hours in advance for
the

attention of

the Members of the Association, except

in the

event of an

emergency.

Written

notice of any meeting of the Board at which regular or non- emergency special Assessments, or at
which

amendment

specifically
cost

to

description

and

rules

regarding Unit

use will

state such purpose and, with respect

of

the

purpose

for

such

be

proposed,

discussed

or approved, shall

to Assessments, indicate the nature, estimated

Assessments.

Such notice shall be mailed or

delivered to all Owners and posted conspicuously on the Condominium Property not less than 14
days prior to the meeting. Evidence of compliance with this 14 day notice shall be
made by an affidavit executed by the Secretary of the Association and filed among the official
records of the Association.
The Board shall adopt by rule, and give notice to Owners of, a
specific location on the Condominium Property upon which all notices of Board and/ or
committee meetings shall be posted.
Special meetings of the Directors may be called by the
President and must be called by the President or Secretary at the written request of one-third of
continuous

the Directors.
4. 7
Board, in
the

right

Owner Participation.
the

accordance with

to

rules of

Any Owner may tape record or videotape meetings of the

the Division.

speak at such meetings with respect

to

all

The right to attend such meetings includes

designated

agenda

items. The Association

may adopt reasonable rules governing the frequency, duration and manner of Owner statements.
If at least 35% of the voting interest petition the Board to address any item relating to the
Condominium, the Board shall at the next regular meeting or at a special meeting of the Board
held in either event not later than 60 days of the Board' s receipt of the petition, place the item on

the agenda for the meeting.

4. 8

Waiver

Notice.

Any Director may waive notice of a meeting before or after

the meeting and that waiver shall be deemed equivalent to the due receipt by such Director of
notice.

of

Attendance by any Director at a meeting shall constitute a waiver of notice of such

By- Laws
6

MIAMI 1759573. 3 7829330796

except when such Director' s attendance is for the express purpose of objecting at the
beginning of the meeting to the transaction of business because the meeting is not lawfully
meeting,

called.

4. 9

Quorum.

A quorum at Directors' meetings shall consist of the entire Board of

Directors.

The acts approved by a majority of those present at a meeting at which a quorum is

present shall constitute the acts of the Board of Directors except when approval by a greater
number of Directors is specifically required by the Declaration, the Articles or these By- Laws.
After a quorum has been established at a meeting, the subsequent withdrawal of members, so as
to reduce the number of voting interests entitled to vote at the meeting below the number
required

for

a quorum,

shall not affect the validity of any actions taken at the meeting or any

Notwithstanding the above, when some or all of the Board of Directors or

members of a Committee meet by telephone conference, those Board of Directors or members of
a Committee attending by telephone conference may be counted toward obtaining a quorum and
may vote by telephone. A telephone speaker shall be utilized so that the conversation of those
Board of Directors or members of a Committee attending by telephone may be heard by the
Board of Directors or members of a Committee attending in person, as well as by any Owners
adjournment.

present at the meeting.

4. 10

Adjourned Meetings.

4. 11

Joinder in Meeting.

4. 12

Presiding Officer. The presiding officer at the Directors' meetings shall be the

If at any proposed meeting of the Board of Directors there

is less than a quorum present, the majority of those present may adjourn the meeting from time to
time until a quorum is present, provided notice of such newly scheduled meeting is given as
required under these
By- Laws. At any re- scheduled adjourned meeting, any business that might
have been transacted at the meeting as originally called may be transacted without further notice.

Any Director may attend a meeting by telephone if a

speaker- phone is available at the meeting so that other Directors and Owners can hear the
Director participating by telephone and such. Director can hear the meeting. Any Director so
participating by telephone shall be counted toward the quorum and shall be entitled to vote by
telephone. The joinder of a Director in the action of a meeting by signing and concurring in the
minutes of that meeting shall constitute the approval of that Director of the business conducted at
the meeting, but such joinder shall not allow the applicable Director to be counted as present for
the purpose of determining a quorum or used as a vote for or against the action taken.

President (

who

may, however, designate any

other person

to

preside).

In the absence of the

presiding officer, the Directors present may designate any person to preside.
4. 13

Order of Business, Voting.

a)

If a quorum has been attained, the order of business at Directors' meetings

shall be:
i)

Proof of due notice of meeting;

ii)

Reading and disposal of any unapproved minutes;

iii)

Reports of officers and committees;

By- Laws
7

MIAMI 1759573. 3 7829330796

iv)

Election of officers;

v)

Unfinished business;

vi)

New business;

vii)

Adjournment.

Such order may be waived in whole or in part by direction of the presiding

officer.

b)
action

taken

A Director present at a meeting shall be presumed to have assented to the

unless

he

from voting. A Director who

or she votes against such action or abstains

abstains from voting on any action taken on any matter shall be presumed to have taken no
to the action. Directors may not vote by proxy or by secret ballot except for

position with regard

election of officers.
4. 14

and

Minutes

be kept in

shall

book

Board Members

each

Director.

of

Meetings.

available

at

The minutes of all meetings of the Board of Directors

for inspection

reasonable

time.

by Owners, or their authorized representatives,

The minutes shall record any vote of absention for

any
The Association shall retain these minutes for a period of not less than seven

years.

5.

Powers

for the

administration of

Duties.

The Board of Directors shall have the powers and duties necessary
the Condominium. The Board may take all acts, through
the proper officers of the Association, in exercising such powers, except such acts which, by law,
the Declaration, the Articles or these By- Laws, may not be delegated to the Board of Directors
by the Owners. Such powers and duties of the Board of Directors shall include, without
limitation ( except as may be otherwise limited in these By- Laws), the following:
and

the

affairs of

Common

Elements

Association

a)

Operating

b)

Determining the expenses required for the operation of the Condominium

and

maintaining

the

and

Property.

and the Association.

c)

Collecting Assessments from Owners.

d)

Employing and dismissing personnel

operation of the Common Elements and Association Property.
e)

operation and use of

Adopting

and

amending

the Condominium

Property

rules

and

and

necessary

regulations

Association

for

maintenance

concerning

Property,

details

and

of

subject to a right of

the Owners to overrule the Board as provided in Article 13.

f)

Maintaining bank accounts on behalf of the Association and designating

the signatories required.

By- Laws
8

MIAMI 1759573. 3 7829330796

i

g)

Purchasing, leasing

or

otherwise

acquiring title to, or an interest in,

property in the name of the Association, or its designee, for the use and benefit of its Members;
the power to acquire personal property shall be exercised by the Board and the power to acquire
real property shall be exercised as described in these By-Laws and in the Declaration.
h)

Purchasing, leasing or otherwise acquiring property in the name of the

Association or its designee.

i)

Enforcing

obligations

of

Owners, allocating profits and expenses and

taking such other actions as shall be deemed necessary and proper for the sound management of
the Condominium.

Borrowing money on behalf of the Association or the Condominium when

j)
in

required

Elements

or

connection

the

with

the

acquisition of

operation,

property,

care,

upkeep

and

maintenance

of

the

Common

and granting mortgages on and/ or security interests in

Property. The consent of all Owners shall be required for any borrowing. If any
sum borrowed by the Board of Directors pursuant to this subparagraph is not repaid by the
Association

Association, an' Owner who pays to the creditor such a percentage of such sum equal to such

Owner' s percentage interest in the Common Elements shall be entitled to obtain from the creditor

a release of any judgment or other lien which said creditor shall have filed or shall have the right
to file against or which will affect such Owner' s Unit.
k)
Articles, these

Exercising ( i)

By- Laws,

all

powers

in the Act,

and

and (

specifically set forth in the Declaration, the

ii) all powers incidental thereto, and all other

powers of a Florida corporation not for profit.

6.

Officers.
6. 1

President,

Executive
a

Officers.

Vice President,

be Directors),

The

Treasurer,

be

executive

Secretary

officers
and an

of

the

Assistant

designated

Association

shall

Secretary ( none

be

of whom

Directors.

All
by
officers may be peremptorily removed at any meeting by concurrence of a majority of all of the
Directors. A person may hold more than one office, except that the President may not also be the
Secretary or Assistant Secretary. No person shall sign an instrument or perform an act in the
need

capacity

of more

all of whom shall

than one office.

elected or

the

Board

of

The Board of Directors from time to time shall elect such other

officers and designate their powers and duties as the Board shall deem necessary or appropriate
to manage the affairs of the Association. Officers need not be Owners.

6. 2

President.

The President shall be the chief executive officer of the Association

with all of the powers and duties usually vested in the office of president of an association.
6. 3
duties

of

Vice President.

the President in the

The Vice President shall exercise the powers and perform the
absence

or

disability

of

the President.

He also shall assist the

President and exercise such other powers and perform such other duties as are incident to the

office of the vice president of an association and as shall otherwise be prescribed by the
Directors.

By- Laws
9
MIAMI 1759573. 3 7829330796

6. 4

Secretary.

The Secretary shall keep the minutes of all proceedings of the

Directors and the Members, shall attend to the giving of all notices to the Members and Directors
and other notices required by law, shall have custody of the seal of the Association and shall
affix it to instruments requiring the seal when duly signed. The Secretary shall keep the records
except those of the Treasurer, and shall perform all other duties incident to

the Association,

of

the office of the secretary of an association and as may be required by the Directors or the
President.

6. 5

Assistant Secretary.

6. 6

Treasurer.

The Assistant Secretary shall exercise the powers and

perform the duties of the Secretary in the absence or disability of the Secretary.

including

funds,

Association

the

substantiating
reasonable

intervals

The Treasurer shall have custody of all property of the Association,

indebtedness. He shall keep books of account for

securities and evidences of

in

good

practices,

accounting

which,

together

with

shall be made available to the Board of Directors for examination at

papers,

times.

with

accordance

He shall submit a treasurer' s report to the Board of Directors at reasonable

and shall perform all other

duties incident to the

office of

treasurer.

All monies and

other valuable effects shall be kept for the benefit of the Association in such depositories as may
be designated by a majority of the Board of Directors.
Fiduciary Duty; Compensation. The officers and Directors of the Association, as well

7.

by the Association, have a fiduciary relationship to Owners. No

officer, Director or manager shall solicit, offer to accept, or accept any thing or service of value
as

any

manager

employed

for which consideration has not been provided for his own benefit or that of his immediate

family; from any person providing or proposing to provide goods or services to the Association.
Any such officer, director or manager who knowingly so solicits, offers to accept or accepts any
thing

or service of a value shall,

Owners, be

in addition to all other rights and remedies of the Association

penalty in

the Act.

Notwithstanding the
foregoing, this Section shall not prohibit an officer, Director or manager from accepting services
and

or

items

received
shall

officers

subject

in

to

civil

connection with

trade fairs

for their

compensation

receive

accordance

with

or education programs.

services

as

such,

Neither Directors,

nor

but this provision shall not

preclude the Board of Directors from employing a Director or officer as an employee of the
Association,

nor preclude contracting with a Director or officer for the management of the

by such Director or officer. Directors and

officers shall be compensated for all actual and proper out-of-pocket expenses relating to the
Condominium

or

for any

to be

other service

supplied

proper discharge of their respective duties.

8.

Resignations

resignation,

and

delivered to

Removals.
the

Any Director or officer may resign at any time by written

President

or

Secretary.

Such resignation shall take effect upon

receipt unless a later date is specified in the resignation, in which event the resignation shall be
effective

from

resignation shall not

the

later date

such

be

required

payment of regular

vacancy in the

unless

to

make

Assessments

withdrawn

it

shall

prior

effective.

to

such

The acceptance of a

An officer more than 90 days delinquent in

be deemed to have

to be filled according to law.

date.

abandoned

the

office,

creating a

An officer charged with a felony theft or

embezzlement offense involving the Association's funds or property shall be removed from
office, creating a vacancy in the office to be filled according to law.
If a person has any such
criminal charge pending, he or she may not be appointed or elected to a position as an officer.
office

By- Laws
10

MIAMI 1759573. 3 7829330796

However, should the charge be resolved without a finding of guilt, the person shall be reinstated
for the remainder of his or her term of office, if any.
Fiscal

9.

Manal4ement.

Section

This

shall

supplement

the

provisions

for

fiscal

management of the Association set forth in the Declaration and Articles:

Budtet.

9. 1

Adoption

a)

time,

and

least annually,

at

The Board of Directors, shall from time to

Board; Items.

by

prepare

budget for the Condominium, and shall determine the

amount of Assessments payable by Owners and allocate and assess expenses among Owners in
By- Laws and the
Condominium shall comply with the Act:

accordance

with

9. 2

these

Assessments.

Declaration.

The adoption of a budget for the

Assessments against Owners for their share of the items of the

budget shall be made for the applicable calendar year annually in advance on or before the 20th
day of the month preceding the first day of the fiscal year for which the Assessments are made.
Such Assessments shall be due in equal installments, payable in advance on the first day of each
month ( or each quarter at
made.

If

an annual

the

election of

Assessment is

the Board)

of the year for which the Assessments are

not made as required,

an Assessment shall be presumed to

have been made in the amount of the last prior Assessment, and installments on such Assessment

by an amended Assessment. In
the event the annual Assessment proves to be insufficient, the budget and Assessments may be
amended at any time by the Board of Directors.
Unpaid Assessments for the remaining portion
of the calendar year for which an amended Assessment is made shall be payable in as many
be due

shall

equal

date

installments

of such

installment

upon each

as there are

amended

month ( or quarter),

full

payment

date

until changed

months ( or quarters)

Assessment.

of the calendar year remaining as of the

Each such installment to be paid on the first day of the

first day of the next ensuing month ( or quarter). If only a

commencing the
remains, the amended Assessment shall be paid with the next regular

partial month ( or quarter)

installment in the following year, unless otherwise directed by the Board in its resolution.
9. 3

Special Assessments; Assessments for Emergencies. Special Assessments shall

be levied as provided in the Declaration and paid as the Board of Directors may require in the
notice of such Assessments. The funds so collected shall be used only for the specific purpose or
purposes

set

forth in the Assessment

notice

but,

upon completion of such specific purpose or

purposes, any excess funds may, at the discretion of the Board, either be returned to Owners or
applied as a credit

Special Assessments for Common Expenses for

towards future Assessments.

emergencies that cannot be paid from the annual Assessments for Common Expenses shall be
due only after 10 days'
notice of Assessment.

notice

to Owners,

and paid as the Board of Directors may require in the

By- Laws
II

MIAMI 1759573. 3 7829330796

The depository of the Association shall be such bank or banks in the

County as shall be designated from time to time by the Directors and in which the monies of the
9. 4

Depository.

Association

be deposited.

shall

Withdrawal of monies from those accounts shall be made only

All sums
or persons as are authorized by the Directors.
by
by
collected by the Association from Assessments or contributions to working capital or otherwise
may be commingled in a single fund or divided into more than one fund, as determined by a
signed

checks

majority

such

the Board of

of

person

A separate reserve account shall be established for the

Directors.

Association in such a depository for monies specifically designated as reserves for capital
expenditures and/ or

deferred

maintenance.

Reserve and operating funds of the Association shall

not be commingled unless combined for investment purposes.

AccountinlZ Records

9. 5

Reports.

The Association shall maintain accounting

County, according to good accounting practices used by similar associations. The
records shall be open to inspection by Owners or their authorized representatives at reasonable
records

times

and

in the

written

and

include, but

not

summaries

of

be limited to, ( i)

them

shall

be

supplied

at

least annually.

The records shall

a record of all receipts and expenditures, and (

ii) an account for

each Unit designating the name and current mailing address of the Owner, the amount of each
Assessment, the dates and amounts in which the Assessments come due, the amount paid upon
the

account

described in

and

dates

the

clause (

so

paid,

and

the

balance due.

Written summaries of the records

i) above, in the form and manner specified below, shall be supplied to each

Owner annually.
All Assessment payments made by an Owner shall be
applied as provided in these By- Laws, the Declaration or as determined by the Board.
9. 6

Application

9. 7

Notice

of

of

Payment.

Meetings. Notice of any meeting where Assessments against Owners

are to be considered for any reason shall specifically contain a statement that Assessments will
be considered and the nature of any such Assessments.
10.

Roster

of

Owners.

Each Owner shall file with the Association a copy of the deed or

document showing such Owner' s ownership.

The Association shall
information. The Association may rely upon the accuracy of such information

other

maintain

such

for all purposes

Only Owners of record on the date notice
of any meeting requiring their vote is given shall be entitled to notice of and to vote at such
until notified

meeting,

in writing

unless

prior

of changes as provided above.

to

such

meeting

Owners

other

shall

produce

adequate

evidence,

as

provided above, of their interest and shall waive in writing notice of such meeting.
11.

Parliamentary Rules.

either' of

Directors

or

Except to the extent waived by the chairman of the meeting

Members), Roberts' Rules

of

Order ( latest

edition)

shall govern the

conduct of the Association meetings when not in conflict with the Declaration, the Articles or

these By-Laws.

Except as otherwise provide in the Declaration, these By-Laws may be

amended in the following manner:
12.

Amendments.

12. 1

Notice. Notice of the subject matter of a proposed amendment shall be included

in the notice of a meeting at which a proposed amendment is to be considered.

By- Laws
12

MIAMI 1759573. 3 7829330796

A resolution for the adoption of a proposed amendment may be

by majority of the Board of Directors or by not less than 50% of the Members.
Directors and Members not present in person or by proxy at the meeting considering the
12. 2

Adoption.
a

proposed either

amendment may express their approval in writing, provided that such approval is delivered to the
Secretary at or prior to the meeting. The approval must be:
by

a)

not

less than 75%

of the votes of all Members represented at a meeting

at which a quorum has been attained; or

b)
12. 3

modify,

Rij4hts

prejudice,

less than 100% of the entire Board of Directors.

by

not

of

Mortgagees.

abridge

or

No amendment may be adopted which would eliminate,

otherwise

affect

adversely

any

benefits,

rights,

privileges

or

priorities granted or reserved to mortgagees of Units without the consent of such mortgagees in
each

instance. No amendment shall be made that is in conflict with the Articles or Declaration.

No amendment to this Section shall be valid.

12. 4

Execution

12. 5

Procedure.

Recording.

A copy of each amendment shall be attached to a

certificate certifying that the amendment was duly adopted as an amendment of the Declaration
and By-Laws, which certificate shall be executed by the President or Vice President and attested
by the Secretary or Assistant Secretary of the Association with the formalities of a deed. The
amendment shall be effective when the certificate and a copy of the amendment is recorded in
the Public Records of the County which contains on the first page an identification of the Official
Records Book and page reference for the recording of the Declaration.

or number

and

The By-Laws shall not be revised or amended by reference to its title

Proposals to amend the By-Laws shall contain the fiill text of the By-Laws to

only.

be amended; new words shall be inserted in the text underlined and words to be deleted shall be
lined through

with

hyphens. However, if the proposed change is so extensive that this procedure

would hinder rather than assist the understanding of the proposed amendment, underlining and
hyphens as indicative of words added or deleted shall not be used, but instead a notation shall be

inserted immediately preceding the proposed amendment in substantially the following language:
Substantial rewording of
omissions
in the By- Law

See

By- Law.
process

shall

By- Law....for
not

invalidate

present
an

Nonmaterial errors or

text."

otherwise

properly promulgated

amendment.

13.

Official

Records.

From

its

Condominium, a copy of each of the

official records of the Association:
a)

inception,

following,

the

where

Association
applicable,

shall

maintain

for

the

which shall constitute the

The plans, permits, warranties, and other items to be provided pursuant to

Section 718. 304( 4) of the Act;

b)

A photocopy

of

the

recorded

Declaration

c)

of

the

recorded

By- Laws

of

Condominium

with

all

Association

with

all

amendments;

photocopy

of

the

amendments;

By- Laws
13

MIAMI 1759573. 3 7829330796

I

d)

A certified copy of the Articles with all amendments;

e)

A copy of any Rules and Regulations of the Association;

f)

A book or books containing the minutes of all meetings of the Board of

Directors and Owners, which minutes shall be retained for a period of not less than seven years;
g)

current

roster

of

all

Owners,

their

mailing

addresses,

Unit

identifications, voting certifications, and, if known, telephone numbers;

h)

All current insurance policies of the Association and of the Condominium

operated by the Association;

i)

A current copy of any management agreement, lease, or other contract to

which the Association is a party or under which the Association or Owners have an obligation or
responsibility;

j)

Bills of sale or transfer for all property owned by the Association;

k)

Accounting records for the Association and the accounting records for the

Condominium which shall be maintained for a period of not less than seven years and shall
include, but not be limited to:
i)

Accurate,

ii)

itemized,

and

detailed

records

for

all

receipts

and

expenditures.

bimonthly, or quarterly
statement of the account for each Unit designating the name of the Owner, the due date
current

account

and

monthly,

and amount of each Assessment, the amount paid upon the account, and the balance due.
iii)

All audits, reviews, accounting statements; and financial reports of

the Association or Condominium.

iv)

All

contracts

for

work

to be

performed,

bids for work to be

performed shall also be considered official records.

1)

Ballots,

sign- in

sheets,

voting proxies and all other papers relating to

elections which shall be maintained for a period of 1 year from the date of the meeting to which
the document relates.
m)

All other records of the Association not specifically listed above which are

related to the operation of the Association.

n)

A copy

of

the inspection

report provided

for

under

Section 718. 301( 4)( 6)

of the Act.

The official records of the Association shall be maintained for at least seven years within

the County, or, if in another county, then within 45 miles of the Condominium.
By- Laws
14

MIAMI 1759573. 3 7829330796

The

of

records

official

the

Association

shall

be

made

available

to

any Owner for

inspection within 5 working days after receipt of written request by the Board or its designee.
The

official

records

the Association (

of

authorized representative of such

electronically

by

email or

or obtain copies, at

the

by

i)

Member

website.

shall be open to inspection by any Member or the

times and ( ii) may be made available

at all reasonable

The right to inspect the records includes the right to make

reasonable expense,

if any,

of

the Member.

The Association may adopt

reasonable rules regarding the frequency, time, location, notice and manner of record inspections
and

The failure of the Association to provide official records within 10 working days

copying.

after receipt of a written request shall create a rebuttable presumption that the Association
wilfully failed to comply

with

this

paragraph.

An Owner who is denied access to official records

is entitled to the actual damages or minimum damages for the Association's willful failure to
comply

with

this

paragraph.

The

the calculation to begin on the

permit

inspection

of

the

minimum

damages

1 lth working

official

records

day

shall

be $ 50

after receipt of

per calendar day up to 10 days,

the

written request.

Failure to

as indicated entitles any person prevailing in an

enforcement action to recover reasonable attorneys' fees from the person in control of the record
who,

directly

or

indirectly, knowingly

denies

access

to

the

records

for inspection.

The

Association shall maintain on the Condominium Property an adequate number of copies of the
Declaration, Articles, By-Laws and rules and regulations, and all amendments to the foregoing,
as well as the Question and Answer Sheet and the most current year- end financial statements, to

The Association may charge its

actual costs for preparing and furnishing these documents to those persons requesting same.
ensure

their availability to Owners

14.

Certificate

of

and prospective purchasers.

Compliance.

A certificate of compliance from a licensed electrical

contractor or electrician may be accepted by the Association' s Board as evidence of compliance

of the Units to the applicable Condominium fire and life safety code.
15.

Construction. Wherever the context so permits, the singular shall include the plural, the

plural shall include the singular.

The captions are inserted only as a matter of convenience and for reference
and in no way define or limit the scope of these By-Laws of the intent or any provision.
16.

Captions.

By- Laws
15

MIAMI 1759573. 3 7829330796

i,

EXHIBIT E
Articles of Incorporation

MIAMI 1746636. 8 7829330796

t
3/ 31/ 2009

850- 617- 6381

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the

PURDY AVENUE

that

office

is a corporation
INC.
filed on March 30,
2009.

Florida,

number

that

certify

December

of

31,

this
said

2009,

corporation

is N09000003183.

corporation

has

and

its

paid

is

status

COMMERCIAL

organized under the laws of

ASSOCIATION,

of

further

t hrough

this

of

records

all

fees

due

this

office

active.

Ravic
ova
nC

further

certify

that

said

corporation

has

not

filed Articles

of

Dissolution.

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further

certify

authorized
code,

by

that

section

this
15. 16,

is

an

electronically transmitted

Florida

209A00010804- 033109- N09000003183- 1/

1,

certificate

and authenticated by the

Statutes,

noted below.

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Authentication

Code:

209A00010804- 033109- N09000003183-- 1/ 1

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under

Great

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at

my hand
of

the

State

the

Tallahassee,

Thirty- first day

and

of

the

VV

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of Florida,

Capital,

March,

this

the

V,

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Fax Audit No. H09Q00074457 3

ARTICLES OF INCORPORATIONOF

PURDY AVENUE COMMERCIAL

CONDOMINIUM ASSOCIATION, INC.

by these Articles, forms a corporation not for profit

pursuant to Chapter 617 of the laws of the State of Florida, and adopts the following Articles of
The

undersigned

incorporator,

Incorporation:

ARTICLE 1

NAME-AND ADDRESS
The

na.ine

of

the

corporation

shall

be

PURDY

AVENUE

COMMERCIAL

CONDOMINIUM ASSOCIATION, INC. For convenience, the corporation shall be referred to

in this instrument as the " Association", these Articles of Incorporation as the " Articles" and the
By-Laws of the Association- as the " By-Laws." The principal place of business and mailing

address of the Association shall be 170Q Convention Center Drive, Miami Beach, Florida 33139

or such other place as may be subsequently designated by the Board of Directors.

ARTICLE 2
PURPOSE

The purpose for which the Association is organized is to provide an entity pursuant*to the
Florida Condominiuin Act, Chapter 718 of Florida Statutes (" Act") to operate the condominium
located in Miami- Dade County, Florida (" Condominium") to be known as PURDY AVENUE

COMMERCIAL CONDOMINIUM.

The Association is not organized for profit and no part of the net earnings, if any, shall

inure to the benefit of any Member or other Person.

ARTICLE' 3
DEFINITIONS

The capitalized tenns used in these Articles shall have the same definitions and meanings
as

those

set

forth in the Declaration

of

Condominium

of

the Condominium("

Declaration") to be

recorded in the Public Records. of Miami-Dade County, Florida, unless provided to the contrary
in these Articles,

or unless

the

context otherwise requires.

The term " Person" shall include

individuals, corporations, partnerships, trusts, limited liability companies and other legal entities.

Articles of Incorporation

J
MIAMI 1758986. 5 7829330796

I
i

Fax Audit No. H09000074457 3

1 ==

Fax Audit No. H09 000074457 3

A)RTYGL1, 4
POWERS

The powers of the Association shall include and be governed by the following:

I
3

General. The Association shall have all of the common-law and statutory powers
4. 1
of a corporation not for profit under the saws of Florida that are not in conflict with the

provisions of these Articles, the Declaration, the By-Laws or the Act.

Enumeration. In addition to, and not in limitation of, the powers described in
4. 2
Section 4, 1, the Association shall have all of the powers and duties set forth in the Act except as
limited by these ArticlesBy-Laws and the Declaration, and all of the powers and duties
reasonably necessary to

operate

the Condominium

and

to

exercise

such powers,

duties and

obligations described in the Declaration, as it may be arhended from time to time, including, but
not limited to, the following:
a)

b)

To make and collect Assessments and other charges against Owners, and
to use the proceeds in the exercise of its powers and duties.
T9
and

acquire,

buy,

personal

lease, sell, trade and mortgage both real

may be necessary or convenient in the

own, operate,

as

property

administration of the Condominium.

c)

To maintain, repair, replace, reconstruct, add to and operate the Common

Elements of the Condominium Property, and other property acquired or

leased by the Association for use-.by Owners.

d)

At

the

request

Condominium

of

the

Property

Owners, to purchase insurance upon the

insurance for the protection of the

and

Association, its officers, directors and Members as Owners.

e)

To execute all documents or consents, on behalf of the Owners ( and their

required by all govenumental and/ or quasi- governmental

agencies in connectipn with land use and development matters ( including,
without limitation, plats, waivers of plat, unities of title, covenants in lieu
thereof), and in that regard, each Owner, by acceptance of the deed to such
mortgagees),

1
i

Owner' s Unit, appoints and designates the Board of Directors as such

Owner's agent and attorney-in-fact to execute, any and all such documents
or consents.

4. 3
Property All funds and the titles of all properties acquired by the Association
and their proceeds shall be held for the benefit and use of the Members in accordance with the
priovisions of the Declaration, these Articles and the By-Laws.
I

Arficles orLycorporation

2
MIAMI 1758986. 5 7829330' 796

Fax Audit No. H09 000074457 3

f
i

Fax Audit No. H09000074457 3

Distribution

4. 4

of Income.

The Association shall make no distribution of income to

its members, directors or officers and upon dissolution all assets of the Association shall be
transferred only to another not for profit corporation or public agency.
i

Limitation.

4. 5

The powers of the Association shall be subject to and shall be

exercised in accordance with the provisions of these Articles, the Declaration, the By-Laws and
the Act provided that in the event of any conflict, the provisions of the Act shall control over-the
Declaration, these Articles and the lay-Laws.
ARTZCLV 5
MEMBERS

Membership. The

5. 1

members of

the Association (" Members") shall consist of all

of the record Owners from time to time of Units in the Condominiwn, and, after termination of
the Condominium, all record Owners at the time of such termination and their successors and
assigns.

The Owner of the City Unit shall be deemed the Class A Member and the Owner of the

BRP Unit

shall

be deemed the Class B Member.

In the event either Unit is subjected to a

subordinate condominium regime composed solely of a Unit then the association governing such
subordinate regime shall be deemed the Member of the Condominium and the Owner for

purposes of exercising the-rights of an Owner under the Condominium documents.

5. 2

'

V'otin

On all matters upon which*the Members shalI*-be entitled to vote, the

Owner of the City Unit shall have 65 votes and the Owner of the SRC Unit shall have 35 votes.
The votes shall be exercised or cast in the manner provided by the Condominium Documents.
5. 3

Meetings

of

Members_.

The By-(Laws shall provide for an annual meeting of

Members, make provision for regular. and special meetings of Members other than the annual

meeting and set the quorum requirements for meetings ofthe Members.
5. 4

No Transfer

or

Hypothecation.

No Owner may assign, hypothecate or transfer

in any manner membership in the Association or the funds and assets of the Association except
as an appurtenance to such Owner's Unit.
Loss.
Membership. - Any Member who conveys or loses title-to the Member' s
5. 5
Unit by sale, gift, judicial decree or otherwise. shall,' immediately upon such conveyance or loss
of

of title, no longer be a Member with respect to such Unit and shall lose all rights and privileges
of a Member resulting from ownership of such Unit.
ARTICLE 6

TERM OF VaSTENCr

The Association shall have perpetual existence.

Articles of Incorporation

3
MIAMI 1758986. 5 7829330796

Fax Audit No. H09.;000074457 3

i
k

Fax Audit No. H09 000074457 3

ARTICLE 7
r

INCORPORATOR

The name and address ofthe incorporator of the Association is as follows:

1
NAME

ADDRESS

Scott Robins

230 Fifth Street

Miami Beach, Florida 33139

ARTICLE 8
DIRE

8. 1

Number

and.

property; business and affairs of the

consisting of four Directors. Two Directors shall be

The

Qualification.

shall be managed by a$ oard

deemed Class A Directors and two Directors shall be deemed Class B Directors, all shall be
None of the Directors need be Members of the
appointed as provided in the By- Laws.

Association

Association or Owners.
8. 2

Duties

and

Powers.

All -of the duties and- powers of the Association existing

under the Act, the Declaration, these Articles and the By-Laws shall be exercised exclusively by
the Board of Directors, subject only to approval by Owners when such approval is specifically
required.

8. 3

Election; Removal. Directors of the Association shall be elected or appointed at

the annual meeting ofthe Members in the manner determined by and subject to the qualifications
set forth in the By- Laws. Directors may be removed and vacancies on the Board of Directors
shall

be filled in the

manner provided

by

these Articles

and

the

By-Laws.

Any Director

appointed or elected by either the Class A Member or the Class B Member may be removed at
any time without cause only by the Member appointing or electing such Director and such
Member malting such appointment or election may designate a,replacement Director.
i

First Directors. The names and addresses of the members of the first Board of
8. 4
Directors who shall hold office until their successors are elected and have qualified, as provided

in the By Laws, are as follows:

ADDRESS

NAME

1700 Convention Center Drive

Anna Parekh

Miami Beach, Florida 33139

s

1
Articles oUncorporation

4
MIAMI 1758986. 5 7829330796

Fax Audit No. H09000074457 3

Fax Audit No. H09000074457 3

1700 Convention Center Drive

Saul Frances

Miami Beach, Florida 33139

1700 Convention Center Drive

Robert Reboso

Miami leach, Florida 33139

230 Fifth Street

Scott Robins

Miami Beach, Florida 33139

1425 North View Drive

Miami Beach, Florida 33140

Philip Levine

8. 5

Standards

including any duties as

prudent person in a like
reasonably

Conduct. A Director shall discharge his or her duties as a director,

Committee: in good faith; with the care an ordinary

position would exercise under similar circumstances;

believed to be in the best interests

knowledge concerning

of

a member of a

a matter

in question that

of

and in a manner

Unless a Director has

unwarranted, a Director, in

the Association.

makes

reliance

discharging his or her duties, may rely on information, opinions, reports or statements, including
data, if

by: one or more officers or

employees of the Association whom the director reasonably believes to be reasonable and
financial

statements

and

other

prepared

or

presented

competent in the manners presented; legal counsel, public accountants or other persons as to

Batters tl e Director reasonably believes are within such. person' s professional.- or expert
competence; or a. Committee of which the Director is not a member if the Director reasonably
believes the Colnniittee merits confidence. A Director is not liable for any action taken as a
director,

or

any failure to take

action,

if he or she performed the duties of his office in

compliance with the foregoing standards.

ARTICLE 9
OFFICERS

The affairs of the Association shall be administered by the officers holding the offices
By-Laws. The officers shall be elected by the Board of Directors of the
Association and shall serve at the pleasure of the Board of Directors. The By-Laws may provide
designated in the

for the removal from office of officers, for filling vacancies and for the duties of the officers.
The names and addresses of the officers who shall serve until their successors are designated by
the Board of Directors are as follows:

President:

Anna Pareld-i

Vice President

Philip Levine

Vice President and Assistant

Secretary:

Scott Robins

Secretary& nd Treasurer:

Saul Frances

I
Articles of Incorporation

5
MIAMI 1758986. 5 7829330796

Fax Audit No. H09 000074457 3

Fax Audit No. 1309000074457 3

ARTICLE 10
INDEMNIFICATION

1
10. 1

Indemnity.

is, tluueatened to be,

The Association shall indemnify any person who was or is a party or

contemplated action, suit or
party to any threatened, pending or

made

investigative ( collectively " Action"),

by
reason of the fact that he or she is or was a director, employee, offcer or agent of the Association
attorneys' fees and appellate
collectively " Association Person"), against expenses ( including
proceeding,

fees), judgments, fines and amounts paid in settlement actually and reasonably

attorneys'

whether civil, criminal, administrative or

incurred by the Association Person in connection with such Action, if the Association Person
acted in good faith and in a planner the Association Person reasonably believed to be in, or not

jopposed

to, the best interests of the Association and with respect to any criminal action or

proceeding, had

to believe the Association Person' s

reason

no

conduct

was unlawful.

The

Association shall not, however, indemnify any Association Person as to matters to which the

Association Person shall be finally adjudged in any such Action to be liable for gross negligence
j

or gross misconduct

Action

in the

by ,judgment,

performance of

order, settlement,

equivalent shall not, of

itself, create

the Association Person' s

duty. The termination of any

conviction or upon a plea of nolo contendere or its

a presumption of gross negligence or gross misconduct.

The

fozegoing right of indemnification shall be in addition to any other rights to which an

Association Person may be entitled as a matter of law or otherwise.
Expenses,

10. 2
merits

regarding

any Action, or in defense of any claim, issue or matter

Action, the Association Person shall be indemnified against expenses ( including

in defense

otherwise

or

To the extent that an Association Person has been successful on the

such

of

attorneys' fees and appellate attorneys' fees) actually and reasonably incurred in such Action.
Approval.

10. 3

Any

indemnification

under

Section 10. 1 (

unless ordered by a court)

shall be made by the Association only as authorized in the specific case upon a determination

because the
that indemnification of the Association Person- is pioper under the cixcuuistanc'
Section
10. 1. Such
Association Person has met the applicable standard of conduct set forth in
determination
consisting

of

obtainable,

shall

be

made ( a)

Directors

or,

even

if

who

by the Board of Directors by a majority vote of a quorum

were

not parties

obtainable,

if

to

quorum

such

of

Action,

or (

b) if such quorum is not

disinterested Directors

so

directs,

by

independent legal counsel in a written opinion, or by a majority ofthe Members.

10, 4

Advances: :

Expenses- incurred in defending an Action may be paid by the

Association in advance of the final disposition of such Action, as authorized' by the Board of

Directors in any specific case upon receipt of an undertaldng by or on behalf of the Association
Person to repay such amount unless it shall ultimately be determined that the Association Person
is entitled to be indemnified by the Association as authorized in this Article 10.
10. 5

Miscellaneous.

The indemnification provided by this Article shall not be deemed

exclusive of any other rights to which those seeking indemnification may be entitled under any

by-law, agreement, vote of Members or otherwise, and shall continue as to a person who has
Articles of Incorporation

6
MIAMI 1758986. 5 7829330796

Fax Audit No. H09 000074457 3

Pax Audit No. H09000074457 3

ceased to be an Association Person and shall inure to the benefit of the heirs and personal
representatives of such person.

The Association shall have the power to purchase and maintain

Insurance.

10. 6

insurance on behalf of any person who is or was an Association Person or is or was serving, at
the request of the Association, as a director, officer, employee or agent of another corporation,

partnership, joint'venture, trust or other enterprise, against any liability asserted against him or
her and incurred by him or her in any such capacity, or arising out of his or her status as such,
whether or not the Association would have the power to indemnify him or her against such
liability under the provisions of this Article.
ARTICLE 11

13Y-LAPSES

The first By-Laws of the Association shall be adopted by the Board of Directors and may
be altered, amended or rescinded by the Directors and Members in the manner provided in the
By-Laws and the Declaration.
ARTICLE 12
AMENDMMNTS

Amendments to these Articles shall be proposed and adopted in the following manner:
Notice of the subject matter of a proposed amendment shall be included

Notice.

12. 1

in.tlie notice of any.meeting at which the proposed amendment-is to be considered.A resolution for the adoption of a proposed amendment may be

Adoption.

12. 2

proposed either by a majority of the Board of Directors or by any Member of the Association.
Directors and Members not present in person or by proxy at the meeting considering the

I
i

amendment may express their approval in writing, providing the approval is delivered to the
Secretary

at or prior

to the meeting.

a)

The approvals must be:

by not less than the votes of all of the Members represented at a meeting;
or

b)

by

not

Limitation.
3
I12.
I

less than 75% of the Board of Directors.

No

amendment

shall make

any

changes

in: the qualifications of

membership; the voting rights or property rights of Members; Sections 4.3, 4.4 or 4.5 of Article
4,

entitled "

Members
made

Powers";

and

or this Section 12.3, without, in each case, the approval in writing of all

the joinder

that is in

of all record owners of mortgages upon

conflict with

the Act, the Declaration or the

Units. No amendment shall be

By- Laws. No amendment to these

Article's shall be made which adversely affects the rights of Institutional Mortgagees without the

prior written consent of a majority of holders of mortgages on the Units held by Institutional
Mortgagees.
Articles of Incorporation

MIANU 1758986. 5 7829330796

Fax Audit No. H09000074457 3

Fax Audit No. H09000074457 3

12. 4

RecoMing.

A-copy of each amendment shall be filed with the Secretary of State

pursuant to the provisions of applicable Florida law, and a copy certified by the Secretary of
State shall be recorded in the public records of Miami-Dade County, Florida:
ARTICLE 13

OFFICE,- REGISTERED AGEN

The initial registered. office of the Assodiation shall be 1200 South Pine Island Road,
Plantation, Florida 33324, with the privilege of having its office and branch offices at other
registered agent at that address shall be
places within or without the State of Florida. The initial
CT Corporation Systems.

as

3F., the undersigned has executed these Articles of Incorporation

IN WITNESS WHE
Ci( f March, 2009.

incorporator as of the

Scott Robins, incorporator

AAMes oflncorp.gp1lon

MI,AM1 1758986. 57829330796

Fax Audit No. H09000074457 3

1"-

0.

BK

sT

26815
AGE

PG

737 35

Fax Audit No. H09000074457 3

ACCEPTANCE OF APPOI TM ENT

AS RECYSTERED AGENT

The undersigned, who has been designated in the foregoing Articles of Incorporation as
registered agent

for the

corporation, agrees

agent and will accept service of process

that ( i) he accepts such appointment as registered

and on behalf of said corporation, and ( ii) he is

for

familiar with and will comply with any slid all laws relating to the complete slid proper
performance of the duties and obligations of a registered agent of a Florida corporation,
Dated;

as of March

2009.

Registered Agent

Cuddihy
Special Assistant Secretary
madot

Articles of incorporation

9
MIAMI 1758986. 5 7829330796

Fax Audit No. H0900 - OA457 3

1

OR Bk

27525 P9s 4 347 -

4368;

t22pgs",

RECORDED 12/ 17/ 2010 12<4205;

HARVEY RUVINP CLERK OF COURT
MIAMI- CAGE t OUNTY P FLORIDA

This instrument prepared by:

Martin A. Schwartz, Esq.
Bilzin Sumberg Baena Price &

Axelrod LLP

200 S. Biscayne Blvd., Suite 2500

Miami, Florida 33 13 1- 5340

Space Above For Recorder' s Use Only)

FIRST AMENDMENT TO DECLARATION OF CONDOMINIUM

OF

PURDY AVENUE COMMERCIAL CONDOMINIUM

THIS

FIRST

Amendment") dated

Florida limited

TO

AMENDMENT
as of

DECLARATION

December 15, 2010, is

liability

company, having
Street, Miami Beach, Florida 33139 (" BRP")

corporation,

City").

having
and
City

an address

BRP

Avenue

Purdy
Declaration

an

of

Public Records

are

of

recorded

Pursuant to Section 5. 1(

by

BAY ROAD PARTNERS, LLC,

c/ o

Scott Robins Companies, 230

CITY OF MIAMI BEACH,

County,
a)(

i)

referred

to

as "

5th

municipal

Owners."

Condominium (" Condominium"),

Commercial

Miami- Dade

and

at

CONDOMINIUM ( this

1700 Convention Center Drive, Miami Beach, Florida 33139

at

collectively

Condominium

made

address

OF

of

in Official Records Book 26815,

was

at

created

by

the

Page 3667, in the

Florida (" Declaration").

the

Declaration, 100% of the Owners have the right to

amend the Declaration.

BRP
BRP

and

and

City

collectively

City

desire to

own

100% of the Units in the Condominium.

amend

the

Declaration to

add

additional

property to the

Condominium to modify the legal descriptions of the Units, to modify and replace certain pages
in the legal description and survey exhibits as specifically set forth below and make certain other
changes in the Declaration.

NOW, THEREFORE, by virtue of the authority of Owners as aforesaid, Owners amend

the Declaration as follows:

MIAMI 2338255. 4 7829330796

Submission

1.

1 ("

Phase 2

Property")

of

and

Additional Land.

improvements

all

BRP submits the property described in Exhibit Aerected

thereon

to be

or

erected

thereon, together

rights and appurtenances, to the condominium form of ownership and use in

by the Florida Condominium Act, Chapter 718, Florida Statutes as it exists
on this date. BRP and City agree that the description of the Land shall be modified and expanded
so that the Land shall be the property described in Exhibit A to this Amendment.
with all easements,

the

manner provided

2.

Legal Description. Exhibit " A" is

amended

substituting Exhibit " A" attached to

by

this Amendment for Exhibit " A" in the Declaration.

3.

Revision

of

Units.

BRP and City hereby amend and adjust the boundaries of the

Units so that the BRP Unit shall be the BRP Unit described in Exhibit B to this Amendment and

City

Unit

be the

Unit described in Exhibit B to this Amendment.

The City Unit shall

the Building. The
Owners acknowledge that improvement to be constructed on the Land as contemplated by Exhibit
the

include

all

have

shall

of

not

City

the land below the

been

constructed

top

and

surface of

that,

the

upon

slab on

the

completion

first floor

of

such

of

improvements,

further

modification of the description of the Unit may be required in order to reflect the as built location
of the improvements on each of the Units.
4.
attached

Exhibit " B" to the Declaration is

Survey.

to this Amendment for

5.

amended

by

substituting Exhibit " B"

Exhibit " B" in the Declaration.

Common Elements.

The definition of Common Elements is amended to add the

following as Common Elements:

f)

any pump room with the improvements therein in the Building to be

constructed that furnishes service to both Units and/ or the Common Elements.
6.

Description

of

Condominium.

Section 3. 1(

a) - (

c)

are revised to read in their

entirety as follows:
a)

The BRP Unit is legally described and graphically indicated in Exhibit B

to this Amendment.
b)

The City Unit is legally described and graphically indicated in Exhibit B

BRP conveys and quitclaims all of its interest in the City
Unit to City.
to this Amendment.

c)

The designation

of each

Unit is

set

forth

on

Exhibit " B".

Exhibit " B"

consists of a survey of the Land, a graphic description of the Units, and a plot plan
Exhibit " B" together with this Declaration identify the Common

thereof.

Elements and each Unit and the relative locations and approximate dimensions.

Upon completion of the Building, the Owners will reconfigure the description of
the Units to reflect the as- built location of the City Unit and the BRP Unit.
Owners agree to file an additional amendment to the Declaration promptly after
the descriptions have been determined.

2
MIAMI 2338255. 4 7829330796

7.

Unit Boundaries.

The following shall be added to Section 3. 2:

The parametrical boundaries of each Unit shall extend to the property line of the
Land included within or adjacent to the description of each Unit on Exhibit B."
8.

Easements.

The following paragraph is added to Section 3. 3:

Columns.

0)

An easement to maintain support columns in the BRP Unit for

the benefit of the City Unit and in support of that portion of any Building located
on the Land above the first level as such columns are shown on Exhibit B.
9.

Maintenance

and

Re

air.

The third sentence of section 6. 2 is amended to read as

follows:
Except

as

otherwise

Common Elements,

provided,

the Association shall make all repairs to the

Association Property and the slab of the first floor of the

Building."
10.

Termination.

The following is added at the end of Section 16.

Upon termination of the Condominium for any reason whatsoever, the easements
described in Section 3. 3( b)-(
11.
provisions of

j) shall continue in effect."

Except as expressly amended as provided in this Amendment, all of the terms and
including, without limitation, Exhibit " C", shall remain in full force

the Declaration

Unless otherwise indicated, the capitalized terms used

in this Amendment have the meanings indicated in the Declaration.

and effect, and are ratified and confirmed.

Owners have caused this Amendment to be executed as of the date indicated above.

Signed,

in the

sealed and

delivered

CITY OF MIAMI BEACH, FLORIDA, a municipal

presence of:

Sign Nam

corporation

Print Name: Alkel ''

Ir9- Tl

By
Print Na

Sign
g Nam
Print Name:

4kcwf

e:

ATTEST:

By
R0 f3 E R-T

Print Name:

LFMLM" C

APPROVED AS TO
FORM & LANGUAGE

FOR EXECUTION
3
MIAMI 2338255. 4 7829330796
G'

orney

Date

STATE OF FLORIDA

COUNTY OF MIAMI-DADE

The foregoing First Amendment to Declaration of Condominium was acknowledged before me

this
day of December, 2010 by
T6& jh d
as Mayor of the City of
1));,-,

Miami Beach,
corporation.

municipal

corporation

of

the State

of

Florida, on behalf of such municipal

He/ She is personally known to me or has produced a Florida driver's license as

identification.
Sign Name:

Print Name:

NOTARY PUBLIC, STATE OF FLORIDA

Print Name

MY COMMISStO
ovao
s.

#DD 832367

Ls

nded% 0

0B( 1C

4
MIAMI 2338255. 4 7829330796

TA, F

Sign Name:

BAY ROAD PARTNERS, LLC

Print Name:

7--

Sign Na
Print Name:

1WA

l Dr

By:
Scott Robins, Manager

STATE OF FLORIDA
COUNTY OF MIAMI- DADE

The foregoing First Amendment to Declaration of Condominium was acknowledged before me

this /
day of December, 2010 by Scott Robins, as Manager of Bay Road Partners, LLC, a
Florida limited liability company, on behalf of such limited liability companies. He is personally
known to me or has produced a Florida driver's license as identification.
Sign Name:
Print Name:

S& N7tf-u

V.

r4- EIS

NOTARY PUBLIC, STATE OF FLORIDA

Print Name

S'-

3776.0

V.

MY COMMISSION EXPIRES:

SEBASTIAN V. PARIS
Florida Notary Public
Commission: DD-827912

Expires: November 13, 2018

5
MIAMI 2338255. 4 7829330796

EXHIBIT " A"

PHASE 2 PROPERTY

Lots 5and 6 and the West 1/ 2 of Lot 7, all in

Block 14, of the ALTON BEACH REALTY COMPANY' S

PLAT OF ISLAND VIEW SUBDIVISION, as recorded in Plat Book 6, Page 115, of the Public Records of

Miami- Dade County, Florida.

6
MIAMI 2338255. 4 7829330796

EXHIBIT " B"

SURVEY

7
MIAMI 2338255. 4 7829330796

PURDY AVENUE'
COMMERCIAL CONDOMINIUM
STATE OF FLORIDA
SS

COUNTY OF MIAMI- DADE

BEFORE ME, the undersigned authority duly authorized to administer oaths and take acknowledgments, personally
DANIEL C. FORTIN, by me well known and known to me to be the person hereinafter described, who being
first duly cautioned and sworn, deposes and says on oath as follows, to wit:

appeared

by

me

of

the

1.

That he is a duly registered and duly licensed Surveyor and Mapper authorized to practice under the laws

State

2.
of

wording

of

Affiant hereby certifies that the attached

the First Amendment to the Declaration

representation

plans

and

must

of

and

variance,

3.
be

provisions

the

location

specifications,

dimensions
some

Florida.

size

the
the

of

between

PROPOSED IMPROVEMENTS to the land according to the

determined therefrom the identification, location,
and
of
elements
each
condominium
unit
therein. There may exist
improvements and the improvements as constructed.

dimensions

and

that

and

there

common

proposed

floor plans marked Exhibit B, together with the

and
Condominium, to which this is attached, is an accurate

sketch
of

the

of

be

can

That the improvements represented

inspected, measured, and recertified
of
Florida Statute 718. 104

hereon
upon

4.
That the architectural plans used in the
Arquitectonica, 801 Brickell Ave, Suite 1100, Miami,

5.

Elevations

shown

hereon

are

relative

to

are

proposed

" substantial"

preparation

Florida,
the

of

P. H. (

National

have

and

completion

this

305)

not

in

been

Exhibit B, were
372= 1812.

Geodetic

constructed

accordance

Vertical

Datum

with

and

the

prepared

by

1929.

of

6.

That The East 75. 63 feet of Lot 5, Block 14 and the West 74. 47 feet of Lot 5, Block 14
BEACH REALTY COMPANY' S PLAT OF ISLAND VIEW SUBDIVISION, according to the Plat thereof, as
in Plat Book 6 Page 115, of the Public Records of MiamiDade County, Florida is equal
recorded
to and comprises
II of Lot 5, Block 14, without gaps or overlaps.
ALTON

FURTHER A F Af NT AYETH NAUGHT.

FORTIN,
VY, KILES, INC., LB3653

Daniel C.
to

ortin,

or

" e

PROFESSIONAL SURVEYOR
State of Florida

Firm
AND MAPPER

LS2853

66
o

STATE OF FLORIDA
SS

LO

COUNTY OF MIAMI- DADE

N

The
FOR

N,

foregoing
is

who

per

instrument was
Wally known to

acknowledged
meanf

C'

Y?

l/

PUBLIC State

i1Dli:::

3 C..

PII :.,

s'.

------

of

before me this December

didrrot'9take"an:
h.

yU; u'}

plP

j
y/''
7`--

NOTARY

o^

lorida

I.

OF41

C1i' 1(:!

ale of`

2010

by

DANIEL C.

i% nda

I: i:! iil: DID.j6i t44

FORTIN, LEAVY,

5.1

15,

KILES, INC.

CONSULTING ENGINEERS, SURVEYORS & MAPPERS

FLORIDA CERTIFICATE OF AUTHORIZATION NUMBER: 00003653

180 Northeast 168th. Street / North Miami Beach, Florida. 33162

Phone: 305- 653- 4493 / Fax 305- 651- 7152 /

co

Email fls@flssurvey.com

0
0

Date

December

EXHIBIT B

15,

2010

Dwg.

No.

6010- 008

Job.

No.

100746

SHEET 1 OF 15

PURDY A
COMMERCIAL CONDOMINIUM
LEGAL DESCRIPTION:
All

Lots

of

ISLAND
and

both

Lots

with

VIEW

being

Less

ADDITION,

together

ISLAND

2,

and

VIEW

Condominium Property
the

North

according
5 through

to

four ( 4)
the

8,

Block

in

according to the
the Public Records

as

thereof,

plat
of

the

of

1/

of

recorded

East

in

Plat

THE ALTON

14,

SUBDIVISION,
recorded

feet

thereof,

plat

BEACH

as

MiamiDade

Lot

said

Book

Block

2,
9

at

REALTY

COMPANY' S

in

Book

recorded

Plat

14A,

Page

144,

PLAT OF
at

Page

115,

Florida.

County,

SURVEYOR' S NOTES:
This

lies

site

MiamiDade
All

in

are

otherwise

Lands

53

Township

South,

Range

42

East,

City

Beach,

Miami

of

in

the ' Public

not

abstracted

recorded

Records

MiamiDade

of

Florida

County,

noted.

hereon

shown

33,

Florida.

County,

documents

unless

Section

were

for

restrictions,

easements

or

and/

rightsofway

of

records.

Bearings
line

of

hereon

are

Avenue,

Purdy

referred to a value of N0000' 00" E for the East right of way

and
evidenced
by found spike and found 3/ 4" iron pin.

hereon

Elevations

shown

based

Miami Dade

on

Boulevard & West Ave

of
the bridge.
Lands

hereon

shown

are

are

Bench

Bridge

on

to

relative

County

in

National
No.

Federal

C-

Flood

Vertical

Geodetic

100,

Canal,

Collins

over

located

the

Mark

Elevation +

being

Brass

Zone AE ( EL 8)

Datum

11. 06,

disk

in

based

1929,

of

Located
the

at

North

Dade
Corner

on

Federal

No.

Emergency Management Agency Flood Insurance Rate Map Community

120651, Map/ Panel No. 12086C0317, Suffix L, dated September 11, 2009,

and

index

September

revised

map

1 1,

2009.

a
tn

Dimensions

60

unless

indicated

otherwise

hereon

field

are

by

measured

electronic

measurement,

noted.

Lands

hereon

shown

Precision
Roof

of

1: 10, 000

closure

overhang

not

43, 200

containing

located

square

feet,

or

0. 992

more

acres,

or

less.

Commercial Class Survey.

unless

otherwise

shown.

Underground
otherwise

The

improvements

approximate

plans

and/

and/

or

underground

encroachments

not

shown

unless

indicated.

or

location

on site

of

all

locations

utilities
and

shown

should

be

hereon
verified

were

determined

before

from

As Built

construction.

r
00

No

claims

as

to

ownership

are

made

or

implied.

0J
D
st

O
O

LEGAL DESCRIPTION

EXHIBIT B

SURVEYOR' S NOTES

SHEET 2 OF 15

PURDY AVENUE`
COMMERCIAL CONDOMINIUM

CANAL

35

36

2'

LB3653(

11/

132 131 130 I

33

FOUND 1/

34

LB3653(

1/

PIPE&

15

DISK LB3653( 11/

14/ 07)

STREET

CAP

22/ 98)
PIPE

OUND 1/

38

U)

5-

4-

14

13-

T-

10

8Q -

39 -

40

2 PIPE

6 -+-

37

126

PIPr07
FOUND NAIL&

2'

27

14/

W
FOUND 1/

128 I

29

CL

U)
W

15

S7

$$

10

13

11

S ``

12

13

14

--1

NWW'00 E

220. W

STREET

18TH

FOUND CUT NAIL

This
0

site

lies in Section 33,

City

of

Township

53 South, Range 42 East,

Miami Beach, Miami-Dade

County, Florida.

0
0

3
0

0
J

cD

NOT TO SCALE

0
0

LOCATION SKETCH

EXHIBIT B

SHEET '3 OF 15

PURDY AVENUE
COMMERCIAL CONDOMINIUM
E

WFOUND 3l4' IRON PIN

FOUND NAIL& DISK $

LB3653( 12/ 9/ 09)
WITNESS CORNER,

INASSSIie
215119)

NO I. D.( 12MM)

1& 2 STORY BUILDING

oS

91d FLOOR ELEVATION INACCESSIBLE

4. 94'.

'

FOUN

O<
n

L
f

I --- .---I `--''-----

O
O

iJ
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g>

F,

II

I
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lil
III
P

q
h4r`

o8

T OF WAY
7 BOOK B
PAGE 115

III

BOI(JF

I \

a1R

11'

F,

II
I

4==

II

II

II

:.

FV[ i

EL T,

POOR CONDITION)

LOT 7

A
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sodd

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Ij
o
UGN7 POLE

tll av

cc

r.

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OVERHEAD

unuTr

I.

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ASPHALT

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I) (
II

IL

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P`

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3.

I(

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II

131)==

II

li

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I

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6 PAGE 115

II

III

CL
GE

ill

WEST RIGHT

I IIItfi
HI QIA NIJK
I
III
I

SdB

3
n

cc

a L r s
II

OOfeRELR OF Lore

O 0

II

uar

T OF
PLAT BOOK
PAGE 115

l F wrDG E
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III

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IIDING

T
NARBO R

LOT

II

III
III
III
ICI

WATER

__

III

III

MOD

uar

J) I

PRQPUM BUfCDINC,
AT GROUND LEVEL
AS PROVIDED BY
ARQUITECTONICA ON
SEPTEMBER 30, 2010

li i

Z
D

sh

I 3,

I
Im

u '

CgAINUNK

qVERHi

IpI

g
11

FOUND PK NAIL NO
I. D. 1219!09)( 0. 18'

'

4(o., eE, o.
COT2

II

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A.

FLOaR ELEVATION a1e

N'
4F,o"

II

'
L J'

y'
Im

DVDFFfE :

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ELEVATION 4.e2

GO

.'

9$
g
mdz

GARAGE FLOOR

ml

adz

01

55. 00'

Saar

mGHT OF WAY
PLAT BOOK
K 6

malt OF WAY

PLAT 8011( 6
PACE 113

PAGE

I ,.

qri

qH

I)

II

FR

I(

LIMITS
AR OF PROPOSED
PARKING
GARAGE
r'

II

ly

L
w

zvi

3hdd
1

3d++
g7dd
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19-

d6

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II
II

I.:

5$
z

II

L
F

MONITORING WELL

I.

THEAk.TOI BEACH REALTY COMPANY' S

PLA} I OFI SLAND VIEW SUBDIVISION
PLA, BOOK 6 PAGE 115

LOT 6

II

I'

II

1y

kf

r'

ASPHALT
CAD

POOR

d
1 add

t!

@ii

1O1l)

II

II

1'

711'
DOR BULDING LINE MIS

WESn

II

PROPOSED BUILDING

y,
L_

AT GROUND LLEV/EL

AS PROVIDED- BY
ARQUITECTONICAON
SEPTEMBER

T-

a
W

GRASS
Sa

81835

LOT 5

2 STORY BUILDING
GARAGE FLOOR ELEVATION+ a95
02
z
Eic,"" aF1`*

I ! _
A

NO I. D. / )

Z
9.

g
FOUND

f0 BE REMOVED)

T
4'

HIG14

II
II
I
II

a
a

CHAIN

13

15.

g'
d

FOUND SPIKE
NO I. D.( 12/ 9/ 09)

ELECTRIC PANEL

0-rW. 24'S)
Z` 5'
1 STORY BUILDING
J
f0

FLOOR ELEVATION+

aee

FOUND NAIL a DL c

NOTE:

Existing Survey,

ET101

2 STORY BUILDING

GRAPHIC

F1. 00N ELEVATION

LOT 4

FLGGR ELEVATION""

ACCE
DmsB`E

20

SCALE

40

60

6' WITNESS COMER

improvements

o within the site to be removed.

TOPOGRAPHICAL

IN FEET )
1

EXHIBIT B

SURVEY

inch =

40

ft.

SHEET 4 OF 15

i'

'

rr

II

r,

WIMOVI

RUN

ORM

SLIT

MUM

PURDY A
COMMERCIAL CONDOMINIUM
r

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i!

I I

II

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41 >
41

AN

LOBBYELE.
II

4'

III

4 I

9 II

q V

4I11

rill

improvements

are

proposed

to change without

and

notice.

II
I

e'

All

subject

I
r,

OFFICE _

m 3

II

il`

s-

U--

II

12

1,
3
0==

All

improvements
P

at

this

level

are

part of the City Unit.

II

O
O

z
U

EXHIBIT B

GROUND LEVEL
FLOOR PL AN

SHEET 6 OF 15.

f,

PURDY AVENUE
COMMERCIAL CONDOMINIUM
Illl

iFE
Lam
F

LOBS

64

r-

II4

III=

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1 - -_

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inch =

35

ft.

20

44

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119

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120

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95 _

95

96=_ =

73

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IN FEET )

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46

4a

17, 5

69

GRAPHIC

fib

Ffl====

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1I

49

15

All

27
J

improvements

subject

to

change

are

proposed

without

and

notice.

16,

U
1
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17

18

191

20rrF

li U

4 9

411

119
119

49
h. 9

II

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49

41I

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39

49

49

1111;\

All

11 LOBBY

ELEV

improvements

at this

level

are

part of the City Unit.

21-

0
0

THIRD

EXHIBIT B

F URTH LEVELS
FLOOR PLAN
SHEET

7 OF

15

PURDY AVENUF
COMMERCIAL CONDOMINIUM
k11I `

IV

j, LOgg

f il

eD

Pa Pe
J

Iq

ll

II II
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64U 63U 62U

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55

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PURDY AVENUE
COMMERCIAL CONDOMINIUM
9-

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ELEVATIONS

REFER

TO ( N. G. V.D.)

NATIONAL GEODETICVERTICAL DATUM.

1.

2. NOT TO SCALE

00

gg i
H
O

U-

O
0

EXHIBIT B

I
I3Nn ALa3doad

ELEVATION

SHEET 9 OF 15

PURDY AVENUE'
COMMERCIAL CONDOMINIUM

CANAL

36

LB3653(

2'
11/

33

FOUND 1/

34

PI &

FOUND NA1L&

LB3653(

1/

30

29

DISK

L33653(

11/

28

27

26

14/ 07)

E '

STREET

PIPE&
22/ 98)
FOUND

W
37

PIPE

OUND

1/

PIPE

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14

0 -

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9
10

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14/ 07)

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10

10

13

11

12

2
9

13

T - T I 14

v
1n

3.
2z
1

I
NEE
C
8

FOUND CUT

220. W

STREET

18TH

NAIL

117

This

site

lies in Section 33,

City

of

Township

53 South, Range 42 East,

Miami Beach, Miami- Dade

County, Florida.

J
CO

Scale: 1" =

200'

BRP UNIT

C;

EXHIBITB

LOCATIONSKETCH

SHEET10- OF15

PURDY AVENUE`
COMMERCIAL CONDOMINIUM

LEGAL DESCRIPTION: BRP Unit

A portion
Book 9 at

Lots 1 and 2, Block 14 A,

Page 144, and together with

COMPANY' S PLAT
115, both Plats
described

ISLAND

of

as

OF

VIEW ADDITION,

portion

Lots

of

according to the plat thereof, as recorded in

through 8, Block 14, THE ALTON BEACH REALTY

ISLAND VIEW SUBDIVISION, according to the plat thereof, as recorded in

recorded
in the Public Records of Miami- Dade County, Florida, being

Plat

being

Book

at

Plat
Page

more particularly

follows:

Begin at the Southwest

VIEW SUBDIVISION, also

being a point on the East right of way line of Sunset Harbour Drive also known as Purdy

Avenue

thence

and

per

2,

00' 00' 00"

Plats;

said

14 A

Block

for

90' 00' 00"

for

00' 00' 00"

for

of

through

right

curvature

90' 00' 00"

feet;

5,

Lot

said

Block

THE ALTON

14,

0000' 00"

feet

E along said West line

Reference Point ' A'; thence

to

thence

90' 00' 00"

for

BEACH
of

REALTY
Lots

said

90' 00' 00"

COMPANY' S

8,

through

E for

PLAT OF

Block

31. 83

feet;

ISLAND

14 and

thence

26. 33

feet;

thence

0000' 00"

for

32. 76

6. 82

feet;

thence

9000' 00"

for

7. 67

Lots

feet;

thence

feet; thence

20. 00

feet; thence N 90' 00' 00" W for 17. 83 feet; thence N 00' 00' 00" E for 12. 08 feet to
to the Southeast; thence Northeasterly along a 10. 67 foot radius curve leading to

00' 00' 00"

for

feet;

thence
a

the

concave

E for 81. 17

for

90' 00' 00"

of

angle

feet to

point

on

an

the

arc

East

distance

line

of

of

said

16. 76

feet

Block

2,

Lot

to

point

14 A;

thence

tangency;

of

thence

10. 17

central

of

for 267. 00

108. 33

point

corner

00' 00' 00"

along said East line of Lots 1 and 2, Block 14 A for 22. 75 feet; thence N 90' 00' 00" W for 3. 25 feet; thence
S 00' 00' 00" W for 2. 26 feet; thence N 90' 00' 00" W for 7. 33 feet; thence N 00' 00' 00" E for 2. 26 feet; thence
N

90' 00' 00"

for

6. 75

feet;

thence

0000' 00"

for

2. 26

00' 00' 00"

for

2. 26

feet; thence

9000' 00"

for

16. 83

9000' 00"

E for

said

East

22. 33
9. 83

line

feet;
feet;

42. 17
Lots

of

thence

thence

1,

feet

to

Block

14

00' 00' 00"

90' 00' 00"

point

of

Lots

and

W for 9. 17
W

the

along

East

said

line

through

feet;

thence

South

line

of

thence

feet;
Lot

of

8,
N

feet;

1,

Block
Lot

for

14
W

5,

9000' 00"

Block

90' 00' 00"

said

thence

14 A;

thence

172. 43

for

Block

00' 00' 00"

9. 67

14

for

8. 00

for

N
S

thence

feet;

00' 00' 00"

thence

118. 00

feet;

26. 82

thence

feet;
feet;

for

thence

W along

90' 00' 00"

00' 00' 00"

feet to

the

W for
W

for

Point of

Beginning.

AND
0

Commence
known

Block

at

Reference

said

Purdy

as

Avenue

per

Point ' A',

being a point on the East right of way line of Sunset Harbour Drive also
PLAT, thense N 00' 00' 00" E along said West line of said Lot
90' 00' 00" E for 32. 00 feet to the Point of Beginning; thence

ISLAND VIEW ADDITION

for

6. 83

00' 00' 00"

for

11. 50

feet;

thence

90' 00' 00"

57 15' 34"

for

13. 06

feet; thence

90' 00' 00"

W for 9. 76 feet to the Point of Beginning.

2,

a The
slab)

14- A

above

described

relative

to

the

feet; thence

perimetrical

National

boundaries

lies

Geodetic Vertical

for

between

Datum

of

20. 75

feet;

elevation

thence

5. 0

feet

00' 00' 00"

and

elevation

for

4. 43

21. 8

feet;

thence

feet ( bottom

of

1929.

0
0

5=

M
0

3
0

0
J
co

r
O

BRP UNIT
EXHIBIT B

LEGAL DESCRIPTION

SHEET 11 OF 15

PURDY AVENUE'
COMMERCIAL CONDOMINIUM
a

S00000100"w

2. 26'

o
M Z
N

35

35

POINT OF BEGINNING

I
I

REFERENCE POINT

oo

0= 90 00'00"
LOT 2

ISLAND VIEW ADDITION :

3 c4

PLAT BOOK 9 PAGE 144

0
0

0
O

7.33'

DETAIL" A"

CD
o

qN

SEE DETAIL" A"

s90000' 00^E

LINE TABLE
C)
C3

Cl)

aW

38

LOT 8

o
0

S2

OQ O,"

LO

N90 00'00"W

6.75'

m =>

j
N

N90000' 00"W

2. 26'

o c^
v

8. 00'

CM

Soo oo' oo"w

81. 17'

S90 00'00" E

I
I
I
I
I

N90000' 00^w

31. 83'

3. 25'

2. 26'

R= 10. 67

S90 oU' oo" E

N90 00'00"W

N00 00' 00" E

L= 16. 76

L7

2. 26

POINT OF
COMMENCEMENT

Noo oo'00" E

16. 83

LOT 3
L4

N90 oo'oo^W

Q I ma

LINE

LENGTH

L1

6. 83'

N00' 00' 00" E

L2

32. 00'

N90' 00' 00" E

L3

11. 50'

N00' 00' 00" E

L4

20. 75'

N90' 00' 00" E

L5

4. 43'

S00' 00' 00" W

L6

13. 06'

S57' 1 5' 34" W

L7

9. 76'

S90' 00' 00" W

BEARING

0 '

`'' -

4oc

Z
o

I
I
I
I

zm
30
L

p
6-

rx
0

O
O

oo

I35'
35'
N

3
0

Nt

LO

I
I
I
I

I
L
I

118. 00'

N90 000'00 11W

POINT OF BEGINNING
SOUTHWEST
LOT

5,

CORNER

BLOCK

14

OF

LOT

GRAPHIC

J
I

25

SCALE

50

100

IN FEET )
1

inch =

50

ft.

r`

BRP UNIT

EXHIBIT

BSKETCH

OF DESCRIPTION SHEET

12 OF 15

PURDY AVENUE!
COMMERCIAL CONDOMINIUM

CANAL

35

34

33

36
FOUND

1/

L83653(

211/

LB3653(

1/
1/

37 -

38

Cn

28

27

26

NAIL&

DISK

LB3653(

11/

14/ 07)

'

STREET

FOUND

z$

1/

PIPE

OUND

1/

2 PIPE

6-

--

4> 14

770
0
D

- 5-

10

39

40

15

29

30

CAf>`

PIPE&

22/ 98)

PIN-)
FOUND

FOUND

31

14/"

ooE

32

14

11

15

7
N y

10

10

13

11

LL

12

CM

2
9

13

T
1

14

I
T
F- - - -

3
2
1

U')

N9000'00' E

00
V

FOUND

CUT

220.00'

STREET

18TH

NAJL

This

site

lies in Section 33,

City

of

Township

53 South, Range 42 East,

Miami Beach, Miami- Dade

County, Florida.

CN)

NOTE:

Scale: 1" =

See

Sheets 6

2nd

through

through

5th

for

Floor Levels

200'

FIRST LEVEL - CITY UNIT

EXHIBIT E

L CATIN SKETCH

SHEET 13 OF 15

PURDY AVENUE'
COMMERCIAL CONDOMINIUM
LEGAL DESCRIPTION: City Unit
PARCEL 1
A

Lots 1 and 2, Block 14 A,

Page 144, and together with

ISLAND VIEW ADDITION, according to the plat thereof, as recorded in Plat

portion
of Lots
7 and 8, Block 14, THE ALTON BEACH REALTY
COMPANY' S PLAT OF ISLAND VIEW SUBDIVISION, according to the plat thereof, as recorded in Plat Book 6 at Page
115, both being recorded in the Public Records of MiamiDade County, Florida, being more particularly described
as follows:
portion

Book

of

at

Commence at the
VIEW SUBDIVISION,
Avenue
through

per

said

8,

Block

described
S

Block

feet

thence
4. 00

14 A; thence
to a point of
for

90' 00' 00"

of

1;

for

thence

corner

of

Lot

said

5,

14,

Block

THE ALTON

BEACH

REALTY COMPANY' S

PLAT OF ISLAND

also being a point on the East right of way line of Sunset Harbour Drive also known as Purdy
Plats; thence N 00' 00' 00" E along said East right of way line and West line of said Lots 5
14 and Lots 1 and 2, Block 14 A for 267. 00 feet to the Point of Beginning of the hereinafter

Parcel

0000' 00"

Southwest

continue

feet;

thence

0000' 00"

an

00' 00' 00" W along said

thence along a
distance

arc

for

26. 33

16. 76

of

feet;

for

23. 00

feet;

thence

90' 00' 00"

for

E for 75. 00 feet to a point on the East

Lot 2, Block 14 A for 45. 00 feet; thence N

75. 00

line

of

feet;

said

90' 00' 00"

thence

Lot 2,

for

81. 17

10. 67 foot radius curve leading to the left through a central angle

curvature;

90' 00' 00"

9000' 00"

feet

thence

to

point

00' 00' 00"

thence

tangency;

of

for

108. 33

feet;

S 00' 00' 00"

thence

W for 71. 67 feet;

90' 00' 00"

for 31. 83

feet

to the Point of Beginning.

LESS AND EXCEPT
Commence

line
of

line

for

Beginning

of

Drive

of

thence

Beginning;
00' 00' 00"

Point

Harbour

West

said

along

the

at

Sunset

of

also

Lot 2,

said

00' 00' 00"

4. 43

feet;

the

of

known
E

as

Block
for

thence

hereinafter

14A

11. 50

described

Avenue

Purdy

for

feet;

57' 15' 34"

6. 83

feet;

thence
for

Parcel

1;

being a point on the East right of way

ISLAND VIEW ADDITION

per

thence

90' 00' 00"

90' 00' 00"

13. 06

feet;

for

20. 75

thence

PLAT,

thense

for 32. 00
feet;

90' 00' 00"

00' 00' 00"

feet to the

Point

thence

for 9. 76

feet to

the

Point of Beginning
Provided,
slab)

however,

and

above

Parcel

elevation

is

only the portion thereof lying below elevation + 21. 8 feet ( second floor bottom of
feet ( first floor bottom slab), relative to the National Geodetic Vertical Datum of

1929.

PARCEL 2
A
to
0

do
o

Lot 5, Block 14, THE ALTON BEACH REALTY COMPANY' S PLAT OF ISLAND VIEW SUBDIVISION, according
thereof, as recorded in Plat Book 6 at Page 115, as recorded in the Public Records of MiamiDade
Florida, being more particularly described as follows:

portion

the

County,

Commence at the
VIEW SUBDIVISION,
Avenue

of

plat

Point
N
on

per

Plats;

said

Beginning

of

90' 00' 00"

the

Southwest

East

Southeast

of

for

line

thence

the

9. 67

of

of

corner

corner

of

said

Lot

5,

Block

14,

THE ALTON

BEACH

REALTY COMPANY' S PLAT OF ISLAND

also being a point on the East right of way line of Sunset Harbour Drive also known as Purdy
N

feet;

said
said

90' 00' 00"

E along the South line

described Parcel 2; thence N

hereinafter
thence

00' 00' 00"

Lot

5,

Block

14;

Lot

5,

Block

2;

thence
thence

for

00' 00' 00"

feet;

9. 17

90' 00' 00"

W
W

of

Lot 5,

said

Block 2 for 118. 00 feet

E for 9. 83 feet; thence

00' 00' 00"

thence

along
along

the

90' 00' 00"

Lot

said

said

5,

Block

South

line

for 22. 33

14 for
of

Lot

feet

19. 00
5,

to the

to

point

feet to

Block

the

for

32. 00 feet to the Point of Beginning.

0

Provided,

to the

however,

National

Parcel

is

only the

Geodetic Vertical

Datum

portion

of

thereof

lying

below

elevation

21. 8

feet ( bottom

of

slab)

relative

1929.

PARCEL 3

o All
r
m

of
Lots 1 and 2, Less the North four ( 4) feet of the East 1/ 2 of said Lot 2, Block 14A, ISLAND VIEW
ADDITION, according to the plat thereof, as recorded in Plat Book 9 at Page 144, and all of Lots 5 through 8,
Block 14, THE ALTON BEACH REALTY COMPANY' S PLAT OF ISLAND VIEW SUBDIVISION, according to the plat thereof,
as
in Plat Book 6 at Page 115, both being recorded in the Public Records of MiamiDade County,
recorded
Florida.

Provided,

n slab)
00 1929.

and

however,
below

Parcel

elevation

is only the portion thereof lying above

5 feet ( first floor bottom slab), relative

elevation

to

the

21. 8

National

feet ( second

floor bottom

Geodetic Vertical

Datum

of

of

CITY UNIT

EXHIBIT B

LEGAL DESCRIPTI N

SHEET 14 OF 15

PG

27525
AGE

BK

4363

PURDY AVENUE'
COMMERCIAL CONDOMINIUM

35'

POINT OF
BEGINNING

35'

S0000' 00" E
LOTS

4.00'

N00 00' 00" E

23. 00'

I
I

0
Z

POINT OF

00'0

BEGINNING
PARCEL 1

I
I

pOo

N90000' oo" W

81. 17'

35'

35'

L= 16. 76

R= 10. 67

LOT 1

moo

n
N

D= 90000' 00"

coo.

W
Z

LINE TABLE

0
o

Z
1

U)

6. 83'

L2

32. 00'

N90' 00' 00" E

L3

11. 50'

N00 00' 00" E

L4

20. 75'

N90' 00' 00" E

L5

4. 43'

S00' 00' 00" W

L6

13. 06'

557' 15' 34" W

L7

9. 76'

590' 00' 00" W

"

o
C3

!.

55

o :

Z)

26.33'

rr-,
f

LOT 7
3

Z)

PARCEL 3

Zo
ce

THE ALTON BEACH REALTY COMPANY S

1
JJ

3O

PLAT OF ISLAND VIEW SUBDIVISION

PLAT BOOK 6 PAGE 115

3
\

tL

o U\

0 Li

LOT 6

N90 00' 00" E

En

I
I

12

wm\
o

BEARING

N00' 00' 00" E

N90 000' 00" W

L1

I
I

LENGTH

38

LOT 8

LINE

M\

22. 33'

N00 00'00" E
9. 17'

N90 000' 00" E

9. 67'

Q-

LOT 5
LINE OF

S00 00' 00"W

N00 00' 00" E

LOTUS BLOCK 14

19. 00

9. 83

SOUTHEAST CORNER

F LOT 5. BLOCK 14

N90 000' 00" E

N90000' 00"W

118. 00'

32. 00'

POINT OF COMMENCEMENT

SOUTHWEST

GRAPHIC
0

25

SCALE

50

100

3
o

o
cO

IN FEET )
1

inch =

LOT 5,

50

ft.

CORNER

BLOCK

14

OF

POINT OF BEGINNIN

LOT4

L
I

J
I
NOTE:

CITY UNIT _FIRST LE VEL

EXHIBIT

BSKETCH

See Sheets 6 through 8 for

2nd through 5th Floor Levels

F DESCRIPTION SHEET

15 OF 15

FUNDING AGREEMENT

Funding Agreement is executed as of the Effective Date ( as hereafter defined) by

and between City of Miami Beach, a Florida municipal corporation, ("
City") and Bay Road
Partners, LLC, a Florida limited liability company (` BRP") ( collectively, the City and BRP
may also be referred to herein as the " Parties," or each individually as a" Party").
This

RECITALS

A.
amended,

Purdy

City

into

entered

Partners, LLC,

liability company,
collectively, " Original Seller")
Acquisition Contract).
and

B.
assigned

Scott Robins Companies, Inc., a Florida corporation,

with

Florida limited

limited

been

dated December 16, 2008, ( as heretofore

a certain agreement,

the " Acquisition Contract")

1849

liability company, Purdy Partners 1919, LLC, a Florida

Purdy Partners, LLC, a Florida limited liability company

with

respect

to the " Land" ( as such term is defined in the

All of Original Seller' s rights and obligations under the Acquisition Contract have
to BRP,

and BRP has assumed all obligations of Original Seller under the

Acquisition Contract.

C.

Pursuant to the Acquisition Contract,

City

has

agreed

to

construct

the Project ( as

hereafter defined) on the Land, and BRP has agreed to fund certain costs with respect thereto.
D.

City requires that BRP deposit with City the estimated amount of the BRP

Construction Costs (

as

hereafter defined)

prior

to commencement

and BRP has

of construction,

agreed to deposit the funds in accordance with the terms of this Funding Agreement.
Now, therefore, City and BRP agree as follows:
1.

Incorporation

2.

Definitions.

Recitals.

City and BRP acknowledge and agree that the Recitals

are correct, and they are hereby incorporated into and made a part of this Agreement.
of

The following terms, as used in this Funding Agreement, shall have

the following meanings:

Architect:

means Arquitectonica.

A/ E

means

Agreement:

between

that

A/ E

certain

City

agreement,

Architect

and

for

dated

the

April

design,

7,

2009,

permitting,

bid/award, and construction administration of the Project, and

any subsequent amendments with respect thereto.
BRP

Construction
Costs:

means all costs of construction with respect to the BRP Unit

(

and

its

including
orders

include

548823. 1

percentage

its

and

share
cost

without

interest

in

of general

overruns.

limitation

the

Common

conditions,

BRP
all

soft

Elements),

costs,

change

Construction Costs

amounts

shall

contemplated

by

Section 8. 6( a) of the Acquisition Contract; provided, however,

that Exhibit E to the Acquisition Contract is hereby replaced

with

Exhibit E to this

Funding Agreement. The initial BRP

Construction Costs are estimated to equal the BRP Deposit.

including contingency), the initial amount

deposited by BRP with the City pursuant to this Funding

BRP Deposit:

means $

1, 820, 350 (

Agreement.
BRP Unit:

shall have the meaning ascribed to it in the Declaration,

including its percentage interest in the Common Elements.

CitV

Construction

Costs:

City Unit:

means all costs of construction with respect to the City Unit

(

including its percentage interests in the Common Elements),

including its share of general conditions, soft costs, change
orders, and cost overruns.
The City Construction Costs are
estimated to be $
8, 964,294 ( including contingency).
shall

have the meaning ascribed to it in the Declaration,

including its percentage interest in the Common Elements.

Construction

means

Contract:

executed,

that

certain

construction

between

contract

executed,

or to be

City and Boran Craig Barber Engel

Company, Inc., as approved pursuant

BCBE) Construction
to

City

Resolution No. 2010- 27557, for construction of the

Project,

and

any

subsequent

change

orders

with

respect

thereto.

Declaration:

means the Declaration of Condominium for Purdy Avenue

Commercial Condominium as recorded in Official Records

Book 26815 Page 3667 of the Public Records of Miami-Dade

County,

Florida

Declaration

of

as

by

amended

Condominium

First

executed

Amendment

to

simultaneously

herewith.
i

Effective Date:

means December 15, 2010.

Plans:

means the final plans and specifications for the Project as

customarily

required

to

obtain

full

building

permit,

and

including, without limitation, all architectural and engineering

plans and specifications heretofore or hereafter produced by
Architect pursuant to the A/E Agreement and approved by the
City.
Project:

design, permitting, development and construction of

that certain public parking
and first floor retail space

means

building in accordance with respectively, the A/E Agreement

and

548823. 1

Construction Contract ( and as said Project was heretofore

approved by the City' s Design Review Board on October 6,

pursuant to File No. 21861, and the City' s Planning

2008,

Board

3.

on

September 23, 2008,

pursuant

to File No. 18969).

BRP Deposit.

Simultaneously with the execution of this Funding Agreement,

City the BRP Deposit. City acknowledges receipt of the BRP Deposit.
City shall maintain the BRP Deposit in a separate account and shall not commingle the BRP
Deposit with other funds. BRP shall not be entitled to receive any interest, if any, that accrues
thereon. BRP shall have no right to a return of all or any portion of the BRP Deposit unless City
BRP has delivered to

fails or refuses to construct the Project or the BRP Construction Costs are less than the BRP

Deposit as determined by the Architect.

4.

Use

of

BRP Deposit.

paying the BRP Construction Costs.

as

City

uses

City shall use the BRP Deposit solely for the purpose of
City shall have absolute control of the BRP Deposit so long

the BRP Deposit solely for

the Project proceeds,

payment of

BRP Construction Costs. As construction of

from time to time

make payments for the costs thereof. City

City
shall use the BRP Deposit to pay the BRP Construction Costs and City shall use City' s funds to
pay the City Construction Costs. City shall be entitled to rely solely upon the Architect for
purposes of determining the allocation of each invoice between BRP Construction Costs and
City Construction Costs.

5.

shall

Deficiency; Excess

that the

actual

writing

with a

the BRP Deposit,

City shall notify BRP in

copy of the Architect's or General Contractor' s revised estimate and the manner

of such computation and

Deposit

In the event Architect or the General Contractor estimates

BRP Construction Costs

BRP

will exceed

shall within

ten ( 10) business days thereafter increase the BRP

by
deficiency
by City. BRP is responsible for all BRP
Construction Costs including any such costs that exceed the BRP Deposit. If upon completion of
the Project BRP has not fully paid the BRP Construction Costs, BRP shall promptly upon
demand of City pay any unpaid amounts for which BRP is responsible. Any amounts owed by
the

amount

of

the

demanded

party to the other pursuant to this paragraph 5 shall bear interest at the rate of 15% per
annum from the time when due until paid. To the extent the BRP Deposit exceeds the BRP
either

Construction Costs,

City will return the excess to BRP within a reasonable time after final

completion of the Project.

6.

Successors

and

Assigns Bound.

This Agreement shall be binding upon City and

BRP and their respective successors and assigns.

7.

No Third

Party Beneficiary. This Funding Agreement is intended solely for the

benefit of City and BRP and their respective successors and assigns, and no third party shall have
any rights or interest in this Funding Agreement.
8.

No

Agency

Partnership. Nothing contained in this Funding Agreement shall

constitute City as a joint venturer, partner or agent of BRP or render City liable for any debts,
or

obligations, acts, omissions, representations or contracts of BRP.

548823. 1

9.

Amendment

and

Waiver.

This Funding Agreement may not be modified except

by written instrument signed by both City and BRP.

10.

Notices. No notice or other communication shall be deemed given unless sent in

the manner provided for in the Acquisition Contract.

11.

Severability.

The invalidity, illegality, or unenforceability of any provision of this

Funding Agreement pursuant to judicial decree shall not affect the validity or enforceability of
any other provision of this Agreement, all of which shall remain in full force and effect.
12.

in

Governing

accordance with,

regard

to

the

Law

laws

and
of

principles of conflict of

Agreement

shall

Southern District

be Miami- Dade
of

Venue.

This Agreement shall be governed by, and construed

the State

of

Florida, both

substantive

and

remedial,

without

laws.

The exclusive venue for any litigation arising out of this

County, Florida, if in state court, and the U.S. District Court,

Florida, if in federal

court.

BY ENTERING INTO THIS AGREEMENT,

CITY AND BRP EXPRESSLY WAIVE ANY RIGHTS EITHER PARTY MAY HAVE TO A
TRIAL BY JURY OF ANY CIVIL LITIGATION RELATED TO, OR ARISING OUT OF

THIS AGREEMENT.
13.

Nature

Agreement.

This Funding Agreement supplements the provisions of the

Acquisition Agreement that survived closing of the Acquisition Contract, all of which remain in
of

full force and effect and are not superseded hereby.

IN WITNESS WHEREOF,

City and BRP have caused this Funding Agreement to be

executed and delivered as of the Effective Date.

CITY OF MIAMI BEACH, FLORIDA, a

municipal corporation of the State of
Florida

By:
Date:

Z,

z oz ep

ATTEST:

By:
Y
Date:

7 eGr-_
Wf3 eg

I s,

a616

APPROVED AS TO
FORM& LANGUAGE
BRP

signature page

FOR EXECUTION

follows]

ILis M

7
548823. 1

Cit

Attorney

ate

BAY ROAD PARTNERS, LLC (BRP)

By:

Bay Road2atmas RRP, LLC

By:
Scott Robins

Managing Member

548823. 1

Illlil 11111111111111111111111111111111111111 2012RO752108

CF N
4802; ( 20aes)
OR Bk 28322 P9s 4833 -

RECORDED 10/ 22/ 2012 11: 23: 48

HARVEY RUVINP CLERK OF COURT
MIAMI- DADE COUNTYP FLORIDA

This instrument prepared by:

Martin A. Schwartz, Esq.
Bilzin Sumberg BaenaPrice & Axelrod LLP
1450 Brickell Avenue, 23rd Floor
Miami, Florida 33131

space Above For Recorders Use only)

SECOND AMENDMENT TO DECLARATION OF CONDOMINIUM

OF

PURDY AVENUE COMMERCIAL CONDOMINIUM

OF CONDOMINIUM ( this
SECOND AMENDMENT TO DECLARATION
a
BAY ROAD PARTNERS, LLC,5t'
Amendment") dated as of October 1 2012 is made by
Companies, 230
address at c/ o Scott Robins
Florida limited liability company, having
a municipal
BEACH,
MIAMI
CITY OF
Street, Miami Beach, Florida 33139 (" BRP") and
THIS

corporation, having an address at 1700 Convention

Center
Drive, Maami Beach, Florida
Owners.
to
City").

BRP

Purdy

and

City are

as

by
Condominium (" Condominium"), was
at Page 3667,
26815,
Book
Records
Condominium recorded in Official

Avenue

Declaration of

referred

collectively

39

created

Commercial

the
as

amended by a First Amendment toin Declaration

of CondominiumMiamirecorded
in Official Records
Dade County, Florida
Public Records

Book

27525,

Page

4347,

all

of

the

Declaration").

Pursuant to Section 5. 1(

a)( i) of

the Declaration, 100%

of the Owners have the right to

amend the Declamation.

BRP

and

City

collectively

own

100%

of the Units in the Condominium.

BRP and City desire to amend the Declaration to add a completed as-built survey as

Exhibit B to the Declaration in replacement ofthe existing Exhibit B to the Declaration.

NOW, THEREFORE,

by

virtue

of the

authority

of

Owners

as aforesaid,

Owners

ame
4

OK

the Declaration as follows:

a coo wr rein

oE C011N
hU,kW 3333879. 178293/ 30796

C,,

Surve .

1.
attached

Exhibit " B" to the Declaration is

amended

by

substituting Exhibit " B"

to this Amendment for Exhibit" B" in the Declaration.

Full Force

2.

and

Effect. Except

Amendment, all of the terms and

Exhibit" C",
indicated,

shall remain

provisions

in full force

of

provided

in this

expressly amended as
the Declaration including, without limitation,
as

and effect, and

are ratified

and confirmed.

Unless otherwise

the capitalized terms used in this Amendment have the meanings indicated in the

Declaration.

Owners have caused this Amendment to be executed as of the date indicated above.

Signed,

in the

sealed and

CITY OF MIAMI BEACH, FLORIDA, a municipal

delivered

corporation

presence of:

Sign Name:
Print Name:

waC

By:
P *

Sign Name:
Print Name:

ATTEST:

By:
Print Name:

V Aftkcs

G
h

H 26

A" ROVED AS TO
fORM& LANGUAOE

FOR FIECUYION

it13

MIAMI 3333879. 178293/ 30796

STATE OF FLORIDA

COUNTY OF MIAMI-DADE
The
me
of

foregoing

day

this

the

City

municipal

Second Amendment to Declaration

of

2012

of

Miami Beach,

corporation.

a municipal

of

Condominium was

acknowledged

before

as Vice-Mayor

by

corporation

a State of Florida, on behalf of such

of

He/She is personally known to me or has produced a Florida driver's

license as identification.

P, -

Sign Name:

IAVbje-

Print Name:

NOTARY PUBLIC, STATE OF FLO

Print Name

MY COMMISSION EXPIRES:

XI-

111l' ,

Ste,

a;FoF

MIAMI 3333879. 178293/ 30796

BARBARA PAREDES
Notary Public- State of Florida
My Comm. Expires Nov 14. 2016
Commission#

EE 827224

Sign N

BAY ROAD PARTNERS, LLC

e:

Print Nan-/-"
v

Sign Name:
a

Print Name:

By:

me, Manager

STATE OF FLORIDA

COUNTY OF N AMI-DARE
Second Amendment to Declaration

The foregoin
me

this;

of

Condominium

was acknowledged

before

Philip Levine,limited
as Manager of Bay Road Partners,
LLC, a
W day of October, 2012 bybehalf
He is per
liability

Florida limited

liability

company,

on

company.

of such

known to me or has produced a Florida driver's license as identification.

Sign Name:
Spi

Print Name:

Ip gpTISTA

PV

MY COMMISSION# EE 061242
EXPIRES:

NOTARY PUBLIC, STATE OF FLORIDA

February 4, 2015

Print Name

e
aV%-

MY COMMISSION EXPIRES:

MIAMI 3333879. 178293/ 30796

EXHIBIT " B"

SURVEY

MIAW 3333879. 178293/ 30796

PURDY AVENUE
COMMERCIAL CONDOMINIUM
STATE OF FLORIDA
SS

COUNTY OF MIAMI- DADE

the undersigned authority duly authorized to administer oaths and take

DANIEL C. FORTIN, by me well known and known to me to be the
deposes and says on

ME,

BEFORE

personally
hereinafter described,
person
oath as follows, to wit:
acknowledgments,

1.

is

That he

appeared

who

being by

me

first

duly

cautioned

and

sworn,

registered and duly licensed land surveyor authorized to practice under the laws of

duly

the State of Florida.

IMPROVEMENTS shown within this Exhibit
that the CONSTRUCTION OF THE
of
so that this Exhibit B, together with the provisions of the Declaration
is an accurate representation of the location and
as amended the Condominium Property,
location, and dimensions of the common
the improvements and so that the identification,

2. Affiant hereby
B, is substantially
Condominium

dimensions

of

certifies

complete,

elements and of each unit can be determined from these materials.

3. And further, that

all

improvements,

planned

including, but

not

limited

to

landscaping, utility services

and- access to the units identified herein and common element facilities serving the herein identified

units have been substantially completed in accordance with the provisions of Florida Statute 718.104.
vations shown for each floor are relative to the National Geodetic Vertical Datum of

4. T .., t,*
192 ..
.{

16.

IJHE

AUGHT.
3653

SA ET

AI. F_

L14T I N

ani

For The Firm

SsRFQiJA` SURVEYOR AND MAPPER LS2853

PRO

STAT1

drtj;n,

FLORIDA

SS

COUNTY OF MIAMI- DADE

The
FORTIN,

foregoing

instrument

was

acknowledged

before

me

this October

17,

2012 by DANIEL C.

who is perso ally known to me and who did not take an oath.
Notary Pudic state of Florida
Susan

o.

NO ARY PUBLIC State

of

Flor

P Kay

yces04M10

a
j

EE 60096

018

Explre OAl06n

RTw

EAVY

KLES

INC.

CONSULTING ENGINEERS, SURVEYORS & MAPPERS

FLORIDA CERTIFICATE OF AUTI30RIZATI0N NUMBER: 00003653

180 Northeast 168th. Street/ North Miami Beach, Florida. 33162

Phone: 305- 653- 4493 / Fax 305- 651- 7152/ Email fls@flssurvey.com

Date

October

PYWIRIT R

17,

2012

Dwg.

No.

6012-- 015

Job.

No.

120828

SHEET 1 OF 15

PURDY AVENUE
COMMERCIAL CONDOMINWM
LEGAL DESCRIPTION: Condominium Property
14A, ISLAND
of said Lot 2, Block
North four ( 4) feet of the East 1/ 2
All of Lots 1 and 2, Less the
and
together with
144,
9 at Page
thereof, as recorded in Plat Book
VIEW ADDITION, according to the plat
Lots 5 through 8, Block 14,
at Page 115, both being recorded in the
thereof, as recorded in Plat Book 6
according to the plat
Florida.
Public Records of MiamiDade County,

THE ALTON BEACH REALTY COMPANY' S PLAT OF ISLAND VIEW SUBDIVISION,

SURVEYOR'S NOTES:
East, City of Miami Beach,
33, Township 53 South, Range 42
MiamiDade County, Florida.
Florida
Public Records of MiamiDade County,
All documents are recorded in the

This

site

unless

Section

lies in

otherwise

noted.

Bearings hereon are referred to a value of N00'00' 00" E for the East iron
right of way
line

of

Purdy

Elevations

Avenue,

and

hereon

shown

evidenced

are

relative

by

fonNational

to the

of

Geodetic Vertcal

1929,

based

Located at Dade Boulevard &

t
10
MiamiDade County Bench M
the North Corner of the bridge.
a Bross disk
Canal
Collin
being
over
Bridge
West Ave on
8) based on Federal Emergency
EL
AE
(
Zone
in Federal Flood
Lands shown hereon are located
1208600317,
120651, Map/ Panel No.
No.
Rate Map Community
Management Agency Flood Insurance
20
11,
September
2009, and index map revised
Suffix L, dated September 11,
less otherwise noted.
bY electronic measurement,
measured
field
Dimensions ind icated hereon are
more
or
less.
acres,
92
0.
9
200 square feet, or
Lands shown hereon containing 43,
Commercial
Class Survey.
000

10,
1:
closure
Precision of
on

Roof overhang not located unless otherwise shown.

Underground improvements and/ or underground encroachments not shown

unless
otherwise indicated.
AsBuilt
from

The

location

approximate

onsite

and/ or

plans

of

utilities

all

locations

and

hereon

shown

should

bcl

were

verified before

claims as to ownership are

by

Legal description shown hereon furnish

determined

made or implied.

The following is the building floorbutareas

the BRPtheunitopenandspace
CITY within
unit toeach
the unit
exterior
does within
not include
is:
limits

BRP
CITY

of

the

building

building
building

structure,

area:

33, 397 square feet

area:

108, 462 square feet.

SURVEYOR'S CERTIFICATION:

4 I hereby
o July 24,

certify that

2012,

and

this "
meets

Boundary
the

and

applicable

Topographic
codes

as

Survey"

set

was

forth in

made

under

the Florida

my

responsible

Administrative

charge

Code,

nt

to Section 472: 027, Florida Statutes.

ut the
Not valid wi

gnature and the original raised seal of a Florida Lloensed Surveyor and Mapper"

FO

SI-,ILFS, INC., LB3653

INp LE 1y ,

Ddniel,.

Surveyp'
State., o

For

hQ. Firm

dPPb'

LS-2853

ortin,

d
+

da..:

ION
GAL DES C1
SURVEY R S NOTES
1

CV

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PURDY AVENUE
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This

site

53 South, Range 42 East,

Miami-Dade County, Florida.
of Miami Beach,

lies in Section 33, Township

City
0

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OOK 9 PAGE 144

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CITY UNIT

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to

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r-

This

site

lies

Ci
City

of

53 South, Range
g 42 East,
Miami Beach, Miami-Dade County, Florida.
in

Section 33,

Township

N
9

co

SWI. 1"=

co

200'

BRP UNIT

0
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LOCATIONSKETCH
F= YHIRITR

SHEET10OF15_

PURDY AVENUE
COMMERCIAL CONDOMINIUM

LEGAL DESCRIPTION:-BRP Unit

to the plat thereof, as

ISLAND VIEW ADDITION, according
Lots 1 and 2, Block 14 A,
LTO
E
through
together with a portion of Lots 5
Book 9 at Page 144, and
as recorded
SUBDIVISION. according to the plot thereof,
COMPANY' S PLAT OF ISLAND VIEW
Miami- Dade County, Florida, being more
in the Public Records of
recorded
115, both Plats being

portion

of

PIBEACH

recorded in Plot
k 6 at Page
particularly

described as follows:

THE ALTON BEACH REALTY COMPANY' S PLAT OF ISLAND

aBlockn14nand

said Lot 5, Block 14,

corner of
Purdy
Begin at the Southwest
of Sunset
the East right of way line
Lots 1
also being a point on
SUBDIVISION,
through 8,
VIEW
Lots
s
'
of
line
West
soid
thence N o0100' 00" E along
feet; thence S
1
Avenue per said Plots;
thence
feet to Reference Point ' A';
00" E for 32. 76 feet;
2, Block 14 A for 267. 00
and
N 00'
26. 33 feet, the*
S 90 00 00 E
thence
67 feet, thence
7.
for
E
00"
00'
00900' 00" W for 108. 33 feet,
90'
thence S
feet; thence N 00' 00' 00" E for 6.82 feet;
S 90' 00' 00" E for 10. 17
N 00' 00' 00" E for 12.08 feet to a
for 17. 83 feet; thence
W
00"
00'
the
90'
N
thence
feet;
leading
foot
N 00' 00' 00" E for 20. 00
along
Northeasterly
thence
Southeast;
the
to
concave
curvature
point of
feet to
P oint ofstangency
7
for an arc distance of 16.
of 90' 00 00
00"
a central angle
right through
of said Lot 2,
line
East
the
on
a point
to
feet;
feet
17
81.
3.
for
for
00' 0 ;
S 90' 00' 00" E
thence N
Block 14 A for 22. 75 feet;
2. 26 feet; thence
East line of Lots 1 and 2,
thence N 00' 00' 00" E for
along said
feet;
7.
33
for
W
00"
00'
90'
N
thence
feet;
26
8.00 feet; thence
2.
for
for
W
00' 00"
S 00 00 00 W
W for 2. 26 feet; thence N 90'
feet; thence S 00' 00' 00"
W
for
26.82 feet; thence
00"
00'
00'
N 90' 00' 00" W for 6. 75
S
feet; thence
N 90' 00' 00" W for 16. 83
thence
feet;
26
for
2.
thence
N 00' 00' 00" E
East line of Lot 1,
feet to a point of said
N' 90' 00 00" W for
72
S 90' 00' 00" E for 42. 17
Block
8,
through
5
r
A and Lots
14
Block
1,
Lots
of
East line
said
W for 9. 67 feet;
thence N 90'
of
the'
00" W for 9. 17 feet;
00'
00'
feet
S
thence
00
feet;
22. 33
line of said LotLot 55, Block
00" W along the South
9. 83 feet; thence N 90' 00'

00'
0e

lo90,

4 Ifor

43

tW

0thence

ethenOce

18

OPoint

Beginning.

AND

being a point on the East right of way line of Sunset Harbour Drive also

Point ' A',

of said Lot
along
N 0000' e0
VIEW ADDITION PLAT, thense
thence
Beginningstthe
r' known as Purdy
Point
E for 32.00 feet to
feet; thence N 90000' 00"
for 4. 43 feet; thence
thence S 00' 00' 00" W
2, Block 14- A for 6. 83
90' 00' 00" E for 20. 75 feet;
N
thence
feet;
50
11.
E for
N 00 00 00
feet; thence S 90' 00' 00"
S 57' 15' 34" W for 13. 06
feet ( bottom of
feet and elevation + 21. 8
elevation + 5. 0
Commence

at

said

Reference

Avenue

per

ISLAND

W for 9. 76 feet to the Point of Beginning.

The above described perimetrical boundaries lies be

relative to the National Geodetic Vertical Datum of 1929.
slab)

9
w

N
00

BRP -UNIT

O
Z

Y r-

f R tT R

LEGAL DESCRIPTION

SHEET 11 F 15

PURDY AVENUE
COMMERCIAL CONDOMINIUM
v

Soooo'
228'

N00 00' " E

N90 00'OOwVU

3F

36

2
c

POINT OF BEGINNING

IPOINT OF
COMMENCEMENT
REFERENCE POINT

2'

R- 10.67
6- 90w

17
A

LOT 2

S9000'00 E

N90 0V000Mv

s00000'ooww

8w

226'

'
i4

tSLMD VIEW ADDITION

PLAT BOOK PAGE 144
w

S90 0000E

31. 83'

325'

L- 16.76

L2

00'00"WI

N00 00' 00' E

L_

226'

16, 83'

LOT 3

N9000'00' W

N90 00 00' VV

81. 17'

7.33'

5.75'

DETAIL" A"
N
T

IL" A"

SEE D
39000'OONE

a:
0

LINE TABLE

3Z

BEARING

LENGTH

LINE

N00' 00' 000E

6, 8.3'

L1

L2

LOT 8

11. 50'

a:

L5

110
IL

0.

L4

Lli

55'

N9

43'

S
0

L7

S5715' 34' W

6'

1.

'

0.

I
v

i
I
i

LEGEND:

BRP UNIT

lit

I
118.00'

N90000' 00" W

iPOINT
I
I

OF BEGINNING

SOUTHWEST CORNER

LOT 5,

BLOCK

14

OF

Lora

I
GRAPHIC
0

LIN
coN

0
Z

PYN I RIT

SCA LE

50

25

too

mmw

FEET

I
i inch , n so &

BR-P UNIT
SKETCH F DESCRIPTION SHEET
R

12 OF 15

PUNY AVENUE
COMMERCIAL CONDOMINIUM

CANAL

I
1

35

36

Ica

33

34

1
1

32

31

1
1

30

1
1

1
1

29

28

27

1
1

1
1

26

M"

s DISK L83M( 11/ 14/ 07)

t

STREET

W
r

rwo,/ z

6
s<

38 _

14

I- - -

37

L1J

vpc

Z
W

39

40

11

o
15

1 F

1.

14

10

7~

8 _.

s .!

10
s.

10

13

--

11

I
T T
1 14
12

2
2-13

1
CL

18TH

sox

STREET

FOW CW w&

n
O

This

site

lies

City of

South, Range 42 East,

in Section 33, Township 53
Florida.
Miami Beach, Miami-Dade County,

NOTE:

See Sheets 6 through 8 for

2nd through 5th Floor Levels

Smie: 1"=

co

FIRST LEVEL
PYWRIT B

200'

CITY UNIT

LOCATION SKETCH

13 OF 15

PURDY AVENUE
COMMERCIALCONDOMINIUM
LEGAL DESCRIPTION: City Unit
PARCEL 1

to the

thereof,

as recorded in Plat

A portion of Lots 1 and 2. Block 14 A, ISLAND VIEW ADDITION, according

14, THE ALTON BEACH REALTY
Book 9 at Page 144, and together with a portion of Lots 7 and 8, Block
thereof,
as recorded. in Plat Book 6 at Page
plat
the
to
SUBDIVISION,
VIEW
COMPANY' S PLAT OF ISLAND
according
115, both being recorded in the Public Records of MiamiDade County, Florida, being more particularly described
as follows:
Plot

Commence at the Southwest corner of said Lot 5, Block 14, THE ALTON BEACH REALTY COMPANY' S PLAT OF ISLAND
VIEW SUBDIVISION,
Avenue per said Plats; thence N 00' 00' 00"
through 8, Block 14 and Lots 1 and 2, Block 14 A for 267.00 feet to the Point of Beginning of the hereinafter
thence N 90' 00' 00" E for 75. 00 feet; thence
described Parcel 1; thence continue N 00' 00' 00" E for 23. 00 feet;
00"
E
for
75.00
feet
to
a point on the East line of said Lot 2.
90'
00'
S 00' 00' 00" E for 4. 00 feet; thence S
45. 00 feet; thence N 9000' 00" W for 81. 17
Block 14 A; thence S 00' 00' 00" W along said Lot 2, Block 14 A for

also being a point on the East right of way line of Sunset Harbour Drive also known as Purdy
E along said East right of way line and West line of said Lots 5

thence along a 10. 67 foot radius curve leading to the left through a central angle

feet to a point of curvature;

W for 71. 67 feet;
point of tangency; thence S 00' 00' 00"
of 90' 00' 00" for an arc distance of 16. 76 feet to a
33 feet; thence N 9900' 00" W for 31. 83 feet
for
108.
00"
E
N
00'
00'
thence
feet;
26.
33
for
W
90'
N
00'
00"
thence

to the Point of Beginning,

LESS AND EXCEPT
the hereinafter described Parcel 1; being a point on the East right of way
PLAT, thense N 0000' 00" E
as Purdy Avenue per ISLAND VIEW ADDITION
line of Sunset Harbour Drive also
00"
E
for 32.00 feet to the Point
00'
Block 14A for 6. 83 feet; thence N 90'
along said West line of said Lot 2,
thence
feet;
75
20.
for
E
00"
90'
00'
N
thence
11.
feet;
50
for
of Beginning; thence N 00' 00' 00" E
W for 9. 76 feet to the
thence S 90' 00 00
S 00' 00' 00" W for 4. 43 feet; thence S 57' 15' 34" W for 13. 06 feet;
Commence

at

the Point

of

Beginning

of

known

Point of Beginning
however, Parcel

Provided,

elevation +

above

and

slob)

second floor bottom of

is only the portion thereof lying below elevation + 21. 8 feet (
5 feet ( first floor bottom slab), relative to the National Geodetic Vertical Datum of

1929.

PARCEL 2
A

Lot 5, Block 14, THE ALTON BEACH

plat thereof, as recorded in Plot Book 6
Florida,
of

portion

to the

County.

being more particularly described as follows:

1* Commence
N

VIEW

SUBDIVISION, according
REALTY COMPANY' S PLAT OF ISLAND VIEW
MiamiDade
Page 115, as recorded in the Public Records of

at

at

the Southwest

SUBDIVISION,

corner

of

said

Lot 5,

Block

14,

THE ALTON BEACH REALTY COMPANY' S PLAT OF ISLAND

also being a point on the East right

of way line of Sunset
Harbour Drive also known as Purdy
Lot 5. Block 2 for 118.00 feet to the
the South line

of said
Plats; thence N 90' 00' 00" E along
thence N 00' 00' 00" E for 9. 83 feet; thence
of the hereinafter described Parcel 2;
17 feet; thence N 90' 00' 00" E for 22. 33 feet to a point
N 90' 00' 00" E for 9. 67 feet; thence N 00' 00' 00" E for 9.
00" W along said Lot 5, Block 14 for 19. 00 feet to the
00'
S
00'
thence
14;
Block
on the East line of said Lot 5.
W along the said South line of Lot 5, Block 2 for
Southeast corner of said Lot 5. Block 2; thence S 90' 00' 00"

Avenue

Point

per

of

said

Beginning

a 32.00 feet to the Point of Beginning.

Provided,

however, Parcel 2

is only the

portion

thereof

lying

below

elevation +

21. 8 feet ( bottom

of

slab)

relative

to the National Geodetic Vertical Datum of 1929.

PARCEL 3

1/ 2 of said Lot, 2, Block 14A, ISLAND VIEW

Lots 1 and 2. Less the North four ( 4) feet of the East
144, and all of Lots 5 through 8,
recorded in Plat Book 9 at Page
as
thereof,
plat
to
the
ADDITION, according
SUBDIVISION,
VIEW
according to the plat thereof,
ISLAND
OF
PLAT
9 Block 14, THE ALTON BEACH REALTY COMPANY' S
both being recorded in the Public Records of MiamiDade County,
115,
Page
at
Book
6
in
Plat
recorded
as

3 All

of

o Florida.
Provided,
slab)

and

however, Parcel 3 is only the portion thereof lying

below elevation + 5 feet ( first floor bottom slab),

above

elevation +

21. 8 feet ( second floor bottom of

relative to the National Geodetic Vertical Datum of

N 1929

CITY UNIT

0
Z

iRi-r R

LEGAL DESCRIPTION

SHEET 14 OF 15

4852

PG

25322
OFD
BK
PAGE
t- AST

PMY AVENUE
COMMERCIAL CONDOMINIUM

POINT OF
BEGINNING
23.00'

LL

POINT OF
BEGINNING
PARCEL 1

m
a

81
. 1T

Ao9000'0V

T.

LOT 1
00

LINE TABLE

LOT 8

L2

>

N9000'00' W
26.33'

CO

00.
.

L3

i
ClkC

BEARING

L1

n7

c.

LENGTH

UNE

35'

35'

LR16.76
R= 10.67

Im

CL

I
N9000 00' W

a:

7D

4.00

N0000'00' E

I
I

R?

800000100 E
LOTS

00'

11. 5 '

L4

0. 75'

L5

4. 4

L6

13. 06'

L7

9. 7 '

Ns

'

N .

0.

Cr

0'

0 ' 00" W
15

Ek'

4 W

00' "

LOT

PARCEL 3
n

LEGEND:

THE ALTON BEACH REALTY COMPANY' S

PLAT OF ISLAND VIEW SUBDIVISION

aJ

PLAT BOOKS PAGE 115

ME()
A

S1n

LOT 6

I
CITY UNIT

Nww 00"E
22.33'

N0000'00' E
9.1T
N90000WE

9. 6T
SOWN UW OF
14
Uff 5

I
LOT 5

Jain F monw

N00 00'00E

19.00'

N90000' 00' E

N90000'00"W

118.00'

32.00'

GRAPHIC SCALE
100

50

25

Ana

i inch =

I
I

POINT OF COMMENCEMENT

POINT OF BEGINNIN

SOUTHWEST CORNER OF LOT4

LOT 5, BLOCK 14

PARCEL 2

)
50 &

NOTE:

See Sheets 6 through 8 for

CITY LTNIT

FX

IT

SK:ETC H

FIRST LENTE.1

2nd through 5th Floor Levels

F DESCRIPTION SHEET

15 OF 15

i 111111 IIlii IIIli illii illll! 1111 IIlII! iii 1111

DEVELOPMENT AGREEMENT

CFN
2OO 5R O77 7 35 6
OR Bk 23610 P9s 2119 2254; ( 136pgs

RECORDED 07/ 26/ 2005 14: 24: 24

HARVEY RUVIH
CLERK OF COURT
MIAMI- DADE COUNTY
FLORIDA

Between

CITY OF MIAMI BEACH, FLORIDA

City)
and
c:)
CA

AR& J SOBS, LLC

C=

Developer)
Dated

as of

2005

rya

5" &

MIAMI 699472. 17 7198217084

5/ 20/ 05 2: 13 PM

ALTON PROJECT

TABLE OF CONTENTS
Page

ARTICLE 1

DEFINITIONS..........................................................................................

ARTICLE 2

CONSTRUCTION...................................................................................

Section 2. 1

Consistency with City' s Comprehensive Plan and Zoning Regulations....

Section 2. 2

Project Concept Plan Approval..................................................................

Section 2. 3

Design of the Project..................................................................................

Section 2. 4

Public Facilities and Concurrency; Brownfields Benefits .........................

Section 2. 5

Plans and Specifications.............................................................................

Section 2. 6

Conditions Precedent to Developer' s

Commencement of Construction of the Project.........................................

Section 2. 7

Commencement and Completion of Construction of the Project...............

Section 2. 8

Completion of Construction of the Project.................................................

Section 2. 9
Section 2. 10

Confirmation of Land Development Regulations......................................

Required Development Permits..................................................................

Section 2. 1. 1

Developer' s Right of Termination.............................................................

Section 2. 12

City' s Right of Termination.......................................................................

ARTICLE 3
Section 3. 2

PLANS AND SPECIFICATIONS..........................................................

Approval and Modification of Plans and Specifications............................
Compliance with Requirements; Construction Standards..........................

Section 3. 3

Design and Decor.......................................................................................

Section 3. 4

Development Dispute.................................................................................

Section 3. 1

ARTICLE 4

Section 4. 1
ARTICLE 5

CITY PARTICIPATION.........................................................................

City' s Right to Use Field Personnel...........................................................

MISCELLANEOUS CONSTRUCTION PROVISIONS.....................

Section 5. 1

Art in Public Places....................................................................................

Section 5. 2

Prevailing Wage.........................................................................................

Section 5. 3

FTA Requirements.....................................................................................

Section 5. 4

Construction Agreements...........................................................................

Section 5. 5

Demolition of the Development Site..........................................................

Section 5. 6

Construction Staging..................................................................................

ARTICLE 6

Section 6. 1
Section 6. 2

FINANCING OF PROTECT CONSTRUCTION

AND DISBURSEMENT PROCEDURES..............................................
Developer' s Obligations.............................................................................

Disbursement of City' s Transit Facility Contribution; Alley.....................

Section, 6. 3

Fees.............................................................................................................

Section 6. 4

Neighboring Property................................................. ............................

ARTICLE7

INSURANCE..................................................................:.........................

i)
699472 17. DOC

MIAMI 699472. 17 7198217084

5/ 20/ 05 2: 13 PM

ARTICLE 8

Section8. 1
Section 8. 2
ARTICLE9

Section9. 1

Section 9. 2
ARTICLE 10

Section 10. 1

DAMAGE CONSTRUCTION AND RESTORATION........................

Casualty......................................................................................................
Effect of Casualty on this Agreement........................................................
CONDEMNATION..................................................................................

Taking.........................................................................................................
Effect of Taking on this Agreement...........................................................
RIGHTS OF RECOGNIZED MORTGAGEE......................................

Notice and Right to Cure Developer' s Defaults.........................................

ARTICLE 11

NO SUBORDINATION...........................................................................

ARTICLE 12

Section 12. 1

MAINTENANCE AND REPAIR...........................................................

Maintenance of Development Site.............................................................

Section 12. 2

Waste Disposal...........................................................................................

ARTICLE 13

Section 13. 1
ARTICLE 1.4

REQUIREMENTS...................................................................................
Requirements..............................................................................................

CREATION AND DISCHARGE OF LIENS........................................

Section 14. 1

Creation of Liens........................................................................................

Section 14.2

Discharge of Liens......................................................................................

Section 14. 3

No Authority to Contract in name of City..................................................

ARTICLE 15

PUBLIC PURPOSE.................................................................................

ARTICLE 16

RIGHT TO PERFORM THE OTHER PARTY' S COVENANTS.....

Section 16. 1

Right to Perform Other Party' s Obligation................................................

Section 16. 2

Discharge of Liens......................................................................................

Section 16. 3

Reimbursement for Amounts Paid Pursuant to this Article.......................

Section 16. 4

Waiver, Release and Assumption of Obligations.......................................

ARTICLE 17

EVENTS OF DEFAULT, CONDITIONAL.................................

LIMITATIONS, REMEDIES, ETC.......................................................

Section 17. 1

Definition.......................................................................

Section 17. 2

Enforcement of Performance; Damages and Termination.........................

Section 17. 3
Section 17.4

Right to Enjoin Defaults.............................................................................

Strict Performance.............................................................

0........................

Section 17. 5
Section17. 6

Remedies under Bankruptcy and Insolvency Codes..................................

Section17. 7

City' s Default.............................................................................................

ARTICLE 18
Section 18. 1

Inspection...................................................................................................

NOTICES, CONSENTS AND APPROVALS.......................................

Service of Notices and Other Communications.........................................

MIAMI 699472. 17 7198217084

5/ 20/ 05 2: 13 PM

Section 18. 2

Consents and Approvals.............................................................................

Section1.8. 3

Estoppel Letters..........................................................................................

ARTICLE19

ARBITRATION.......................................................................................

Section 19. 1

Expedited Arbitration of Development Disputes.......................................

Section19. 2

Litigation....................................................................................................

ARTICLE 20

NO PERMIT OR WAIVER OF FEES/APPLICABILITY

OF BROWNFIELD REDEVELOPMENT ACT..................................

ARTYICLE 20A INVESTIGATIONS, ETC.......................................................................

ARTICLE 21

HAZARDOUS MATERIALS.................................................................

Section 2 1. 1

General Provision.......................................................................................

Section21. 2

Survival ......................................................................................................

ARTICLE 22

MISCELLANEOUS.................................................................................

Section 22. 1

Governing Law and Exclusive Venue........................................................

Section 22. 2.

References..................................................................................................

Section 22. 3

Entire Agreement, Etc. ...............................................................................

Section 22. 4

Invalidity of Certain Provisions ..................................:..............................

Section 22. 5

Remedies Cumulative.................................................................................

Section 22. 6

Performance at Each Party' s Sole Cost and Expense.................................

Section 22. 7

Time is of the Essence................................................................................

Section 22. 8

Successors and Assigns..............................................................................

Section 22. 9

Notice of Defaults ......................................................................................

Section 22. 10
Section 22. 11

No Representations.....................................................................................

Section 22. 12
Section 22. 13

Non- liability of Officials and Employees ..................................................

Partnership Disclaimer.......:.......................................................................

Section 22. 14

Time Periods...............................................................................................

Nature of Obligations.................................................................................

Section 22. 15

No Third Party Rights................................................................................

Section22. 16

No Conflict.................................................................................................

Section 22. 17

Recording of Development Agreement......................................................

Section 22. 18

Duration of This Development Agreement................................................

ARTICLE 23

CITY' S RIGHT OF FIRST OFFER......................................................

MIAMI 699472. 17 7198217084

5/ 20/ 05 2: 13 PM

LIST OF EXHIBITS
Exhibit A

Legal Description of Land

Exhibit B

Depiction of Transit,Facility Dedication Area

Exhibit C

City' s Transit Facility Contribution

Exhibit D

Representative Construction Guaranty Provisions

Exhibit E

Material Provisions of Declaration

Exhibit F

Permitted Exceptions for City Spaces

Exhibit G

Form Deed for City Spaces

and Transit Elements

Exhibit H

Intentionally Omitted

Exhibit I

Location of City Spaces,

Transit Elements and Developer Spaces

Exhibit J

Project Concept Plan

Exhibit K

Legal Description of Alley

Exhibit L

City' s Right of First.Offer to Purchase Project

Exhibit M

Form of Dedication Deed for Transit Facility Dedication Area

Exhibit N

Intentionally Omitted

Exhibit O

Schedule of Estimated Elevator/Bus Stop Costs

iv)
MIAMI 699472. 17 7198217084
5/ 20/ 05 2: 13 PM

DEVELOPMENT AGREEMENT

S11

THIS DEVELOPMENT AGREEMENT (" Agreement")

day

the laws of the State

company (" Developer").

by and between the CITY OF

City"), a municipal corporation duly organized and existing
Florida, and ARW SOBE, LLC, a Florida limited liability

DA ("

MIAMI BEACH, FLO

under

is entered into as of this

2005 ( the " Effective Date"),

of

of

As of the Effective Date, the sole members of the Developer are AP

Sobe, LLC, wholly beneficially owned by Alan Potamkin, his family or a trust for the benefit of
family, and controlled by Alan Potamkin; RP Sobe, LLC, wholly beneficially owned by
Robert Potamkin, his family or a trust for the benefit of his family, and controlled by Robert
Potamkin; and Berkowitz Limited Partnership, wholly beneficially owned by Jeffrey Berkowitz,
his family or a trust for the benefit of his family, and controlled by Jeffrey Berkowitz. More
precise entity composition information for Developer will be furnished to the City Manager as
his

soon it is available, but in any event by the Outside Date, as hereinafter defined.
RECITALS:
WHEREAS,
owner of certain

Developer represents to City that Developer is the record and beneficial

of real property located in the City of Miami Beach, Miami-Dade
legally described on Exhibit" A" attached hereto and made a part hereof( title
parcels

County, Florida,
evidence will be furnished to the City which confirms this at the time specified in Section 2.6( d)
vi)

below);

and

WHEREAS,

City is

the holder of a

public right- of-way easement

to the "

Alley",

hereinafter defined ( said Exhibit " A" property and the Alley are collectively referred to as
Land", which Land is bordered by 5" Street, 6" Street, Alton Road and Lenox Avenue); and

as

the

WHEREAS, on June 7, 2000, the City Commission adopted Resolution No. 2000-23963
designating the Land a Brownfield Area, to promote the environmental restoration and economic
redevelopment of the area; and

WHEREAS, Developer intends to construct on the Land a multi- level commercial

building
Space")

to

be

and a

for grocery/ retail/ office/ restaurant

parking garage ( defined below as Transit
used

WHEREAS,

space and

Facility);

its

appurtenances (

the " Retail

and

Developer shall convey to the City subject to the terms specified in this

Development Agreement in fee simple several condominium units which in the aggregate

include 535 of the parking spaces within the Transit Facility( said 535 spaces are defined below
as the City Spaces, consisting of the " City Supermarket Spaces" and the " City Non-Supermarket
Spaces", each of which shall be one or more separate units) and the " common areas" ( including
an equitable allocation of
part of

the

City

the Land)

Spaces for

of

the Transit

purposes of

unit( s) which contains other "

Facility(

said " common areas"

shall be deemed

this Agreement) and one or more other condominium

Transit Elements" (

as

hereafter defined), to the extent constituting

real property interests( signage,-furniture and any other non-real estate components, if any, of the
Transit Facility will not be part of the condominium, although they will be utilized for the benefit
of the condominium) and excluding the Transit Facility Dedication Area which shall not be part
5
MIAMI 699472. 17 7198217084

5/ 20/ 05 2: 13 PM

of the condominium but shall be conveyed to the City as provided elsewhere in this Agreement.
Developer shall retain fee simple title to one or more condominium units which include in the
aggregate

including

the Retail Space

an

common areas" shall

spaces other

parking

as well as

equitable allocation of

be

a part of

than the

City

the

rest of

the Transit

Facility,

the Land) of the Project

the Retail

Space for

as

and

the " common areas"

conveyed

purposes of this

Spaces( defined below

be

not

City ( said
including all

to the

Agreement),

the Developer Spaces);

and

integrated

facility, with City

being responsible for parking control and certain other duties of the operation thereof and
Developer being. responsible for the maintenance, repair, insurance, paying taxes, and security;
WHEREAS, the Transit

Facility

will

operated as

an

and

WHEREAS,

City and Developer have agreed that the Developer shall execute and
Condominium( the" Declaration") for the Property in a form approved by
the City Manager ( which approval will not be unreasonably withheld so long as the terms are
consistent with this Agreement, including its Exhibits), at the time and subject to the terms
record a

Declaration

specified

of

in this Development Agreement, containing the

essential

terms set forth in Exhibit" E"

attached hereto and such other provisions as City and Developer shall mutually and reasonably
agree upon; and

WHEREAS, the Parties have negotiated this Development Agreement, setting forth the
City' s and Developer' s respective rights and responsibilities with regard to the development,
design, construction, ownership and operation of the Project.
NOW, THEREFORE, the Parties agree as follows:

ARTICLE 1

DEFINITIONS

For all purposes of this Agreement the terms defined in this Article 1 shall have the

following meanings:
Affiliate"

or "

Affiliates"

means, with respect

to any Person,

any other Person that,

directly or indirectly, through one or more intermediaries, controls or is controlled by, or is under
controlled

Interest.

Person. For

hereof, the term"

including the terms

shall mean the possession.of a Controlling
Unless the context otherwise requires, any reference to Affiliate in this Agreement shall

common control with, such

by"

purposes

control"(

and" under common control with")

be deemed to refer to an Affiliate of Developer.

the

Alley" means that certain parcel of property subject to a right-of-way easement held by
City containing approximately 7, 800 square feet and legally described on Exhibit" K."
Architect" means a person or firm licensed to operate as an architect in Miami-Dade

County, Florida and who is designated by Developer as the architect for the Project and approved
by the City Manager with respect to the Transit Facility ( which approval shall not be
6)
MIAMI 699472. 17 7198217084

5120105 2: 13 PM

unreasonably withheld and is deemed given in respect of Robin Bosco Architects and Planners,
Inc. and STA.Architectural Group).
Brownfield Redevelopment Act" means the Florida Brownfield Redevelopment Act,

Section 376. 77,

et.

Building

M.,Florida Statutes( 1997).

Permit"

Development Regulations, issued

buildings

structures

or

building permit" as. such term is defined in the Land

by the Building Department of the City, which allows

means a "

to be

full

erected,

constructed,

altered,

moved,

converted,

extended

or

enlarged for any purpose, in conformity with applicable codes and ordinances.
Business

Day"

or"

business

day" means a day other than Saturday, Sunday or a day on

which banking institutions in the State of Florida are authorized or obligated by law or executive
order to be closed.

City" means the City of Miami Beach, Florida, a municipal corporation duly organized
and existing under the laws of the State of Florida..
City Code" means the Code of the City of Miami Beach, Florida, as amended through

the date hereof and as hereafter amended to the extent permitted herein or by applicable law.
City

Commission"

means the Mayor and City Commission of the City of Miami Beach,

Florida, the governing body of the City, or any successor commission, board or body in which
the general legislative power of the City shall be vested.
City Elevator" means the elevator and elevator bank to be conveyed to the City, located
at the northwest corner of the Improvements and comprising a part of the Transit Elements
which will stop at all floors of the Transit Facility), together with an easement from the Transit
Facility Dedication Area to the City Elevator for use by the general public for ingress and egress
between

such

Elevator

at

areas.

its

Developer shall perform routine day to day maintenance of the City

cost ( such

as

sweeping

and

cleaning).

Developer shall perform all other

maintenance, repairs and replacement of the City Elevator, including obtaining a service contract
for maintenance that is subject to City's reasonable approval, at the City's cost, based on a budget
reasonably approved by the City and subject to annual reconciliation, and this obligation shall
survive any termination of this Agreement.

City Improvements" means the City Spaces and the other Transit
Improvements are to be constructed by Developer as part of the Project.

City

Manager"

Elements.

The City

means the chief administrative officer of the City or his or her designee.

City Spaces" means the 535 parking spaces within the Transit Facility that are to be
City and located substantially as shown on Exhibit" I" hereto. The City Spaces
shall be comprised of the " City Supermarket Spaces" and "
City Non-Supermarket Spaces",
as defined below.
in
this
Agreement
to
the
Anything,
contrary notwithstanding, in order to
conveyed to the

satisfy

potential

FAR, parking

and governmental requirements,

up to 14 ( the precise number of

which shall be determined by Developer based on the governmental parking requirements

imposed for the issuance of the building permits and final certificate of occupancy for the
7)
MIAMI 699472. 17 7198217084
5/ 20/ 05 2: 13 PM

Project,

City

to

not

and

14)

exceed

of the City Non- Supermarket Spaces shall be owned jointly by the

the Developer as tenants in

common,

as

each

to an undivided 50% interest ( and

City), but ( i) for

purposes of City' s Transit Facility Contribution, the allocation of Revenues and Operating
Expenses, allocation of payment in the event of condemnation, determination of the purchase
price in the event-of a sale and all similar purposes under the Declaration, City shall be deemed
Developer

shall retain said

50% interest

when

the sole owner of such up to 14 spaces, (

taxes

would otherwise

be

said spaces ( otherwise,

available

City

shall

in

it

conveys said

up to 14

spaces

to

ii) Developer shall, to the extent an exemption from

respect of said

pay taxes

up to 14

spaces,

on said spaces), (

iii)

pay any taxes in respect of

Developer may, at any time

convey its interest in any or all of said up to 14 spaces to the City for no additional consideration,
and the City shall accept such conveyance and ( iv) such up to 14 spaces shall, at Developer's
option, be the last spaces to be reconveyed to Developer in the case of a condemnation, and if

any of said up to 14 spaces are at any time condemned, City shall, for no consideration, convey
at Developer' s option,
an equivalent interest in other City Non-Supermarket
Spaces ( or Supermarket Spaces, if there are no more City Non- Supermarket Spaces) so that
Developer will continue to own, after the condemnation, if it so elects, up to the same number of
to Developer,

spaces

that

it

owned prior

to the

condemnation

as a

50%

co- tenant.

The provisions of the

foregoing will be incorporated into and implemented by the Declaration at the time of its
Further, anything in this Agreement to the contrary notwithstanding, if Developer,

preparation.

in order to satisfy potential FAR, parking and governmental requirements, requires more than the
14 spaces provided for above based on the governmental parking requirements imposed for the

issuance of the building permits and final certificate of occupancy for the Project, the Parties
shall negotiate in good faith to attempt to arrive at a mutually satisfactory solution, failing which
Developer may unilaterally reduce the number of City Non- Supermarket Spaces to be sold to the
City under this Agreement by the amount of the shortage in parking spaces required by
Developer, whereupon the City's Transit Facility Contribution allocable to parking spaces shall
be reduced by an amount equal to the per parking space amount multiplied by the reduction in
the number of parking spaces sold by the Developer to the City ( and Developer shall promptly
reimburse the City for any excess payment paid by the City in respect therefor, if any).
City

Non- Supermarket Spaces"

shall mean all of the City Spaces less the City

Supermarket Spaces.

City Supermarket Spaces" shall mean that portion of the City Spaces equal to 97
parking spaces for the.contemplated supermarket user.
City' s

Consultant"

means such Person as City may designate in writing to Developer

from time to time.

City' s Transit Facility Contribution" shall mean approximately $ 16, 395. 03 per
parking space( being calculated by taking$ 8, 771, 340 and dividing same by the actual number of

City

Spaces)

constituting the City Spaces plus an additional sum equal to the actual Hard Costs

and Soft Costs incurred by Developer for the City Elevator plus an additional sum equal to the
actual Hard Costs and Soft Costs incurred by Developer for the Transit Facility Dedication Area
Finishes ( but in

Transit

Facility

no event

to exceed $ 356, 187. 60 for the

Dedication Area Finishes)

plus

8)
MIAMI 699472. 17 7198217084
5/ 20/ 05 2: 13 PM

City

Elevator

and $

118, 204. 80 for the

the additional sum of$ 333, 333 for the Transit

Facility Dedication Area, all of which shall be disbursed by City pursuant to Section 6.2 of this
Agreement.

Construction"

Commence
commencement
construction

of

site

of

major

work

or

( such

Commencement

"

installing

as

preliminary
ancillary demolition

including,

means

foundations)

or

the Project in accordance with the Plans and

work

Construction"

of

pilings

pouring
Specifications.

the

for

Any and all

limitation, any environmental re-mediation - and

without

or site preparation work,

including installation of forms for foundations)

shall not be deemed to be Commencement of Construction.

Completion Deadline"

means the date that is the earlier of( a) twenty-four( 24) months
following the Construction Commencement Date, or( b) March 1, 2008, both subject to a day for
day extension by reason of Unavoidable Delays.
Comprehensive Plan"

means the Comprehensive Plan that the City adopted and

implemented for the redevelopment and continuing development of the City pursuant to Chapter
163, Part II, Florida Statutes.

Concurrency

Requirements"

Consenting Party"
Construction

of

has the meaning provided in Section 2.4(b).

has the meaning

the Project"

provided

in Section 18. 2(

c)(

i).

means the construction of all.or any portion of the Project

on the Land.

Construction Agreement( s)"

agreement, engineer' s agreement, or

materials or supplies entered

into

means

any

any

general

other agreement

with respect

contractor' s

for the

agreement, architect' s

provision of services,

labor,

to the Construction of the Project, as the same

may be amended or otherwise modified from time to time.

Construction Commencement Date"

has the meaning provided in Section 2. 7.

Construction Work" means any construction work performed under any provision of
this Agreement and/ or the Construction Agreements with respect to the Construction of the
Project.

Contractor"

means

an Y

contractor,

subcontractor

supplier,
Pp ,

vendor or materialman

supplying services or goods in connection with the Construction of the Project.

Controlling

Interest"

means

the power to

direct the

management and

decisions ( both

major decisions and day-to- day operational decisions) of any Person.

Default"

means any. condition or event, or failure of any condition or event to occur,

which constitutes, or would after

the

giving

of notice and

terms of this Agreement) constitute, an Event of Default.

9)
MIAMI 699472. 17 7198217084
5120/ 05 2: 13 PM

lapse

of

time ( in

accordance with the

is twenty- four ( 24)

months and one day after the

Construction Commencement Date or March 2, 2008, whichever occurs first, but subject to a day
Default Date"

means

the date that

for day extension in each case for delays due to Unavoidable Delays.
Default Notice" has the meaning
Design Review Board"

or"

provided

in Section 17. 1 (

a).

means the Design Review Board of the City created

DRB"

and established pursuant to the Land Development Regulations, or any board or body which may
succeed to its function.
Developer"

means ARW Sobe, LLC, a Florida limited liability company.

Developer Improvements"

means

building ( including footings and foundations),

any

building equipment and other improvements and appurtenances of every kind and description
now

existing

permanent),

or

hereafter

and

any

erected, constructed, or placed upon

and

all

alterations

replacements

and

the Land ( whether

thereof,

temporary or

additions

thereto

and

except for the City Improvements which shall be constructed upon the
Land by Developer but owned by the City.
substitutions

therefor,

Developer

parking spaces ( currently contemplated to be

the Transit Facility except for the City Spaces, and located

Spaces"

means

all

approximately 546) located within

substantially as shown on Exhibit " I" hereto. . The Developer Spaces shall include a portion of

City Code required parking spaces for the contemplated supermarket user. The Developer
Spaces shall not include any of the City Spaces that are co-owned by Developer as a tenant in
common with the City.

the

Development

Agreement"

Development Agreement
hereafter be

and

supplemented,

all

exhibits

amended,

this

or

and

" Agreement")

attachments

restated,

severed,

means

collectively,

this

hereto, as any of the same may

consolidated,

extended,

revised

and

otherwise modified, from.time to time, either in accordance with the terms of this Agreement or

by mutual agreement of the parties.

Development Agreement Act" means the Florida Local Government Development
Agreement Act, Section 163. 3220,

Development

et. seq.,

Approval"

Florida Statutes( 1998),

means

any

zoning,

as may be amended.

rezoning,

conditional

use

special

concurrency approval under Section 163. 3180,

Florida Statutes, or any other official action of local government having the effect of approving
exception,

variance

or

subdivision

approval,

development of land.
Development Arbitrator"

Development Dispute". has

shall

have the meaning

provided

in Section 19. 1 (

j).

the meaning provided in Section 3. 4.

Development Site" means the Land.

Effective Date

has the meaning provided in the preamble of this Agreement.

10)

MIAMI 699472. 17 7198217084

5/ 20/ 05 2: 13 PM

Event

Default"

of

Excess Transit

has the meaning provided in Section 17. 1.

Facility

Costs"

means those costs that shall be the.sole responsibility of

the Developer as that term is used in Section 6. 2. 1 (

ii).

Fair Market Value"

means the fair market value of the property or interest being

valued as jointly agreed to by City and Developer or, if they cannot agree for any reason within
thirty ( 30) days, as determined by an appraiser mutually acceptable to City and Developer
which shall be designated within fifteen ( 15) days after expiration of the aforestated thirty( 30)
day period or it shall be presumed that they could not agree) or, if they cannot agree on a single
appraiser

and

if

for any reason, each shall. designate an appraiser within fifteen ( 15) days thereafter
does not, the appraiser selected shall be the sole appraiser) and the appraisers so

either

designated

shall

select

be

a , third

appraiser ( within

fifteen ( 15) days

of

their selection).

Each

licensed M.A.I.

appraiser having no less than 10 years experience in

appraising facilities similar to the property or interest being valued in the vicinity of the Property.
Fair Market Value shall be determined assuming title and environmental condition will be in the
condition in which the party conveying is obligated to convey as provided in this Development
Agreement, but shall not take into account any restrictions, use rights, limitations or other factors
peculiar to the Project or to the property or interest being valued that might affect value ( it being
appraiser

shall

the intent that these latter factors be considered through the discount ( hereinafter

Fraction")

Fair Market Value is

in

defined as the
in this Agreement). For

by
clarification, Fair Market Value of the City Spaces, where applicable, shall first be determined
by including land value and then, as provided in the document pursuant to which Fair Market
Value is being determined, such value shall be multiplied by the Fraction to adjust for the fact
that the City does not participate in the value of the Land, as the City's Transit Facility
which

multiplied

various places

Contribution does not include compensation to Developer for Land value.

Fees" has the meaning
Fraction"
FTA"

provided

in Section 6. 3 (

a).

has the meaing set forth in the Declaration.

means

the Federal Transit Administration,

an operating division of the U.S.

Department of Transportation.
FTA Master Agreement"

FTA MA ( 10) between the

City
previously..furnished to Developer.
FTA Recipient"
the

legal

means Federal Transit Administration Master Agreement,

and

FTA, dated October 1,

2003, a copy of which was

means the entity that receives federal assistance directly from FTA, as

entity that is designated the Recipient in the Grant Agreement or Cooperative

Agreement with FTA.

FTA Requirements" means requirements imposed on the expenditure of FTA Funds

including, but not limited to, those identified in the FTA Master Agreement.
Governmental Authority" or " Authorities" means the United States of America, the
Florida, Miami- Dade County, the City (
in its governmental as opposed to proprietary
capacity) and any agency, department, commission, board, bureau, instrumentality or political
State

of

11)
MIAMI 699472. 17 7198217084
5/ 20/ 05 2: 13 PM

district) of any of the foregoing, now existing or hereafter

created, having jurisdiction over Developer or any owner, tenant or other occupant of,or over the
subdivision (

including

Development Site

or

or

any county
portion

any

thereof or any street, road,

avenue or sidewalk comprising a

part of, or in front of, the Development Site, or any vault in or under the Development Site, or
airspace over the Development Site.

means Jeffrey Berkowitz, Alan Potamkin and Robert Potamkin, who shall
each execute a Guaranty in accordance with the provisions of this Development Agreement.
Guarantors"

Guaranty"

means

joint

and

several

guaranty issued to the

City ( which shall be

separate from any guaranty issued to Developer's construction lender) to be delivered by each of
the Guarantors to City prior to any disbursement of the City' s Transit Facility Contribution
pursuant to which each Guarantor shall guaranty to the City the timely and lien free completion
of the Project in accordance with the Plans and Specifications, this Development Agreement and

all Requirements, and which shall be in form and substance substantially the same as set forth on
Exhibit D attached hereto.
Hard Costs"

means costs paid by Developer to contractors, materialmen and suppliers

for Construction of the Project.

Hearing" has

the meaning

provided

Historic Preservation Board"

in Section 19. 1 ( b).

HPB" means the Historic Preservation Board of the

or"

City created and established pursuant to the Land Development Regulations or any board or
body which may succeed to its functions.
Improvements"

means

the Developer Improvements,

the City Improvements and all

improvements located on the Land at any point in time.

Institutional Lender"
an

of

the

means a bank, savings and loan association, insurance company,

United States Government, the Federal National Mortgage Association

agency
FNMA"), the Federal Home Loan Mortgage Corporation (" FHLMC"),

or any other lender

generally recognized as an institutional lender, holding a mortgage, lien or other security interest
on the Property or a portion thereof.
Joint Board" means the Joint Historic Preservation and Design Review Board created

and established pursuant to the Land Use Regulations or any board or body which may succeed
to its functions.
Land"

has the meaning set forth in the first Recital.

Land Development Regulations"

Code

of the

City

of

means

Subpart B ( Chapters 114 through 142) of the

Miami Beach, Florida, as the same was in effect as of the date of this

Development Agreement.
Loan Documents"

means, collectively, any loan agreement, promissory note, mortgage,

guaranty or other document evidencing or securing a loan secured by, among other collateral,
Developer' s interest in the Land or Property.
12)
MIAMI 699472. 17 7198217084
5/ 20/ 05 2: 13 PM

Mortgagee" means the holder of a Mortgage.

Notice" has the meaning

Notice

of

provided

in Section 18. 1 (

Failure to Cure" has the meaning

Outside Date"

means

the

date

a).

provided

which.is eighteen(

in Section 10. 1 (

a).

18) months after the Effective Date, or

the Construction Commencement Date, whichever shall first occur.

Parties"

means the Developer and the City, collectively.

Party" means the Developer or the City.

Payment

Permits

and

and

Performance Bond"

Approvals"

has the meaning provided in Section 2. 6 ( c).

shall mean any and all permits and approvals required to be

issued by Governmental Authorities in connection with the Construction of the Project, including
to the extent applicable, without limitation, the City of Miami Beach building permits, the
approvals of the City of Miami Beach Design Review Board, the City of Miami Beach Historic
Preservation Board, the City of Miami Beach Planning Board, the City of Miami Beach Board of
Adjustment, the Miami-Dade -County Department of Environmental Resources. Management
permits, the Florida Department .of Environmental Protection permit, any other permits and/ or
approvals required by any Governmental Authorities and any utility access agreements with all
applicable utility companies.
Permitted Exceptions"

the

forth

Exhibit 6IF'

hereto and any

other matters hereafter imposed on the Property or the Transit Facility Dedication Area or any
portion thereof by requirement of the City or with the consent of the
City Manager, which
consent will not be unreasonably withheld, delayed or conditioned so
long as the City
Improvements and the Transit Facility Dedication Area shall not be materially and adversely
means

matters

set

on

affected.

Person"
company, limited

any Federal,

means an

liability

state,

individual, corporation, partnership, joint

partnership,
or

county

venture,

limited liability

estate, trust, unincorporated association or other entity;

municipal

government

or

any bureau, department,

political

subdivision or agency thereof; and any fiduciary acting in such capacity on behalf of any of the
foregoing.
Planning Board"

or"

PB"

means the Planning Board of the City created and established

pursuant to the Land Development Regulations, or any board or body which may succeed to its
functions.
Plans

and

Specifications" means the final plans and specifications for the Project,

including, foundation, structural, electrical, plumbing and HVAC plans and such other plans and
specifications

customarily

required

to

obtain

full

building

permit,

each as prepared in

accordance with this Agreement and approved by City in both its governmental capacity and its
proprietary capacity, as the same may be modified from time to time in accordance with the
provisions of this Agreement.
13)
MIAMI 699472. 17 7198217084
5/ 20/ 05 2: 13 PM

Project"
to be

constructed

project

use

mixed

means the Land and the City Improvements and the Developer Improvements
by.Developer thereon, which shall include, without limitation, the following: a
containing

1792000

approximately

square

feet

of

commercial/ retail/ office/restaurant space and a parking garage containing approximately 1081
parking spaces, and which shall be substantially as depicted on the. Project Concept Plan. The
At such time as Substantial
Project includes the Retail Space and the Transit Facility.
Completion has been achieved, the term " Project" shall mean the Land and all Improvements
which have been constructed thereon and shall further include all alterations and additions
thereafter

Notwithstanding the foregoing, if this Agreement is terminated, for purposes of

made.

determining whether or not the " Conditions", as hereinafter defined, have been satisfied, the
Project may, at Developer's sole option, be modified to eliminate the City Elevator (unless City

elects to require and pay for same in accordance with the Vacation Agreement and Vacation
Resolution) and all or a portion of that parking which is in excess of City Code required parking.
Project Concept Plan" means the concept plan for the Project attached hereto as
Exhibit 66J"

hereto as may be modified in accordance with this Agreement.

Project Construction Costs" means all Hard Costs and Soft Costs of construction

incurred in connection with the Construction of the Project.

Property" means the Land and all Improvements from time to time located thereon,
utility allocations and other benefits

together with all easements, development entitlements,

appurtenant thereto.

Recognized Mortgagee" means an Institutional Lender who is the holder of a mortgage

and who has notified City that it is a Recognized Mortgagee and provided an address for notices.
Requirements" has the meaning

provided

in Section 13. 1 ( b).

Soft Costs"

means, all out-of-pocket costs incurred by Developer to third parties( but, if

any such third parties are affiliated with Developer, only to the extent that such services are

necessary for the Project and only to the extent of the amount that would reasonably be payable
in an arms length transaction if the third party were unrelated) for designing, planning, financing
and managing Construction of the Project, other than Hard Costs.
Substantial Completion"
means,

with

respect

accordance with the

Section 2. 8 ( b)( i)

or"

Substantially

to the Project, that ( 1)

Plans

shall

and

Complete"

or"

Substantially Completed"

it shall have been completed substantially in

Specifications, ( 2) the certificate of the Architect described in

have been

obtained,

and (

3)

the

City Improvements, the Developer

Improvements and all other Improvements constituting a part of the Project shall have been
issued temporary or permanent certificates of occupancy, or their equivalent.
Term"

means

the

period

commencing

on

the Effective

Date

and,

unless

sooner

terminated as provided herein, expiring on the issuance of a final certificate of occupancy and the
completion of all remaining punch list items with respect to completion of the Project, payment

by City to Developer of all amounts owed to Developer under this Agreement, conveyance to
City of the City Spaces and City Elevator, and dedication to the City of the Transit Facility
Dedication Area,

all

in

accordance with the terms of this

14)
MIAMI 699472. 17 7198217084
5/ 20/ 05 2: 13 PM

Agreement,

subject,

however, to

survival of any provisions of this Agreement that are expressly stated herein or intended by their
terms to survive such expiration or termination.

Transit Elements"

Spaces, ( b) the

City

means

and

includes collectively ( a) the

Facility Dedication Area;

Elevator; ( c) the Transit

City Non-Supermarket
and (

d) signage for the

Transit Facility.
Facility" means a parking garage which is part of the Project and which

Transit
contains

the

City

Spaces,

certain other

Facility Dedication Area)

Transit

and

the Developer Spaces ( but not the

elevators,

and stairways located within the

Transit Elements

and all

ramps,

parking garage and serving the parking garage.

Transit

Facility

Dedication Area" means the area at the northwest corner of the

is to be dedicated to the City for mass transit intermodal stop pedestrian waiting
Property
area , the legal description of which will be prepared prior to conveyance to reflect the crossthat

hatched

area noted and

street grade and

Developer

shall

labeled. on Exhibit " B"

attached hereto, but only between the height of

grade ( it being understood and agreed that

approximately 11 feet above street

retain the portions below grade for

underground

footings, foundations, utilities

and the like, and shall retain the portions above approximately 11 feet for improvements to be
located over the Transit Facility Dedication Area). Anything in this Development Agreement to
the contrary notwithstanding, the Transit Facility Dedication Area shall not be part of the Transit
Facility, the Property or the Project, but shall be a Transit Element which will be dedicated for a
mass transit intermodal stop pedestrian waiting area at the time set forth in this Development
Agreement. Developer shall not be required to comply with FTA Requirements in respect of this
area

if

such requirements (

when aggregated with the FTA Requirement for the balance of the

Project)

are more costly to comply with than what is contained in the Project Concept Plan
City, at its option, elects to pay for the excess costs ( except that. Developer shall comply
with Davis Bacon Act and shall, consistent with the City's FTA approved DBE plan, use
reasonable efforts to comply with the DBE requirements of the FTA Master Agreement based on
up to 10% of an assumed $ 9, 500, 000 City's Transit Facility Contribution ( but in no event less
than 5% of an assumed $ 9, 500, 000 City's Transit Facility Contribution) at no additional cost to
City, and Developer shall also comply with any other requirements of the FTA Master
unless

Agreement at the City's request and at the City's cost, and further provided, in respect of all FTA
Requirements,

they are reasonably capable of being implemented without unusual delay and
materially changing the character of the Project).
Anything in this Agreement to the
contrary notwithstanding, Developer shall not be obligated to acquire or convey any land other
than the Land or other than as contemplated hereby. Developer shall install at its cost ( but
subject to payment by the City for the Transit Facility Dedication Area Finishes as provided for
without

elsewhere

the Transit

in this Agreement) the curbing,

pavement,

directional

signage (

to direct. people into

Facility) and building mounted lighting for the Transit Facility Dedicated Area and

shall, subject to the immediately preceding sentence, comply with all Requirements pertaining to
construction of the

transit

Transit

related signage,

Facility

Dedication Area. Developer shall not be obligated to install

furniture ( such

as

benches

and waste containers)

or similar items, unless

requested by and paid for by City without contribution by Developer ( and if installed, City shall
or at City's option remove) same, which obligation
shall survive termination of this Agreement if the Transit Facility Dedication Area has been
conveyed to City).
maintain, repair and, when required, replace (

15)
MIAMI 699472. 17 7198217084
5/ 20/ 05 2: 13 PM

Transit

Facility Dedication Area Finishes" means the improvements noted in item 2

the Schedule of Estimated Elevator Bus

Stop Costs attached hereto as Exhibit " O".

Developer shall perform routine day to day maintenance of the Transit Facility Dedication Area
of

Finishes

its

at

maintenance,

City's

cost,

cost ( such

as

and

sweeping

cleaning).

Developer shall perform all other

repairs and replacement of the Transit Facility Dedication Area Finishes at the
on a budget reasonably approved by the City and subject to annual

based

reconciliation, and this obligation shall survive and termination of this Agreement.
Unavoidable Delays" means delays due to strikes, slowdowns, lockouts, acts of God,

inability

to

labor

obtain

or

war,

materials,

catastrophic weather conditions,

enemy

action,

civil

commotion,

fire, casualty,

eminent domain, a court order which actually causes a delay

unless resulting from disputes between or among the party alleging an Unavoidable Delay,
present or former employees, officers, members, partners or shareholders of such alleging party
or

Affiliates ( or present or former employees, officers, partners, members or shareholders of such

Affiliates)

of such

alleging party),

unusual

permitting

or

inspection delay,

or another cause

beyond such party' s control or which, if susceptible to control by such party, shall be beyond the
reasonable control of such

Mortgagee ( but

not

in the

party. Unavoidable Delays shall include, in the case of a Recognized

case of Developer),
the time reasonably necessary to foreclose its

but only if and to the extent that ownership and/or possession of the Property is
required in order for the Recognized Mortgagee to perform or comply with any of Developer's
mortgage (

obligations

hereunder).

Such party shall use reasonable good faith efforts to provide notice to the
knows of the occurrence of an
failure to notify the other of the
constituting an Unavoidable Delay within. such ten ( 10) day period shall

party not later than ten ( 10) days after such party
Unavoidable Delay; provided, however, that either party' s
other

occurrence of an event

not alter, detract from or negate its character as an Unavoidable Delay or otherwise result in the
loss
no

of

any benefit

event

financing
from

shall (

i)

or right granted

party'

delayed party

under

this Development Agreement.

In

any party' s financial condition or inability to fund or obtain funding or

constitute an
s(

to the

Unavoidable

Delay

with respect

to such party, and ( ii)

any delay arising

or its Affiliate' s) default under this Development Agreement or any of the Project

Agreements constitute an Unavoidable Delay with respect to such party' s obligations hereunder.
performance set forth in this Development Agreement (
other than for monetary
obligations of a party)
shall be extended to the extent performance is delayed by Unavoidable

The times for

Delay,

except as otherwise

expressly

set

forth in this Development Agreement.

Notwithstanding

the foregoing, City' s failure to pay when due City' s Transit Facility Contribution in accordance
with the terms of this Development Agreement shall, at Developer' s option, be an Unavoidable
Delay.
Developer shall from time to time upon request of the City provide to the City

Developer's then current construction time line schedule and shall advise as to-whether any then
known Unavoidable Delays have occurred and the nature and extent thereof.

ARTICLE 2

CONSTRUCTION
Section 2. 1

Consistency with City' s Comprehensive Plan and Zoning Regulations.

16)
MIAMI 699472. 17 7198217084
5/ 20/ 05 2: 13 PM

implemented the Comprehensive Plan.

The City hereby

finds and declares that the provisions of this Development Agreement dealing with the Land are
2. 1. 1

The City has

adopted and

consistent with the City' s adopted Comprehensive Plan and Land Development Regulations,
subject to the Developer' s obtaining all applicable Requirements, Permits and Approvals.
Section 2. 2

Project Concept Plan Approval.

Developer's Project Concept Plan, which includes but is not limited to showing the layout
buildings and structures, streetscape,
siting of the Project, including but not limited to all
to be
appurtenances proposed
improvements
and
other
infrastructure improvements and
and

developed upon the Development Site, is herein submitted simultaneously with the submission

of this Development Agreement for approval by the City Commission, and attached as Exhibit J
hereto.

Should the City Commission fail to approve the Project Concept Plan, which shall be by

City Commission failing to approve this Development Agreement-- approval of this

way
Development Agreement shall be deemed approval of the Project Concept Plan-- or, if approved,
of the

if the Projecxt Concept Plan does not become final and unappealable, then this Development

Agreement shall be of no force or effect, and each Party shall bear its own costs and expenses
incurred in connection with this Development Agreement and neither Party shall have any

further liability to the other( except for matters, if any, that expressly survive termination of this
Development Agreement).
Section 2. 3

Design of the Project.

Developer shall be solely responsible for the design of the Project,,but such design shall
be substantially in accordance with the design created by Developer' s Architect (" Project
Design") as reflected on the approved Project Concept Plan. Design of the Project, including the

City Spaces and the other Transit Elements, shall be at the sole cost and expense of Developer.
The Parties acknowledge that final, non-appealable approvals of the Project by the DRB and the
HPB have been obtained.
Section 2. 4

Public Facilities and Concurrence; Brownfields Benefits.

a)

Developer

anticipates

that ( i)

the Project will be served by those roadway

transportation facilities currently in existence. as provided by state, county and local roadways,
ii) the Project will be served by public transportation facilities currently in existence, including
Miami- Dade

City, and other governmental entities as may

City; ( iii) the sanitary sewer,. solid
presently
waste, drainage, and potable water services for the proposed Project are to be those services
those provided

by

operate public

County,

the

transportation services within the

currently in existence and owned or operated by Miami-Dade County, the Miami-Dade County
Water and Sewer Department, and the City; and( iv) the Project will be serviced to the extent that
available
capacity exists by any and all public facilities, as such are defined in
Section 163. 3221( 12), Florida Statutes ( 1997), and as such are described in the City' s

Comprehensive Plan, specifically including, but not limited to, those facilities described in the
Infrastructure Element and Capital Improvements Element therein, a copy of which is available
for public inspection in the offices of the Planning, Design and Historic Preservation Department
of the City of Miami Beach. The foregoing, however, shall not be deemed to be an approval of,
nor shall it be deemed to relieve Developer of,the obligation to comply with, Section 163. 3180 ,
17)
MIAMI 699472. 17 7198.217084
5/ 20105 2: 13 PM

Florida Statutes ( 1997),

and City has made no determination or representation with respect to

any such matters.

b)
but

including,

not

Developer shall be responsible for obtaining all land use permits,

limited to, all permits and approvals required pursuant to Section 163. 3180,

Florida Statutes ( 1997),

with respect to concurrency requirements for roads, sanitary sewer, solid

water, and parks and recreation ( the " Concurrency Requirements").
Developer shall, within twenty-four( 24) weeks after the Effective Date,.apply to the appropriate
Governmental Authorities for satisfaction of all applicable Concurrency Requirements, and shall
thereafter diligently and in good faith pursue such letters or other evidence that the Project meets
waste,

drainage,

potable

all applicable Concurrency Requirements.

The Transit Facility shall be available for use as a public municipal transit
facility. Developer may pursue and retain solely for its own account, except as and to the extent
provided to the contrary in Article 20, any rights or benefits available under the Miami Beach
City Commission Resolution No. 2000- 23963, the Brownfield Site Rehabilitation Agreement
between A& R Sobe, LLC and Miami-Dade County and/ or under the Brownfield Redevelopment
Act as they pertain to the Project.
c)

Plans and Specifications.

Section 2. 5

a)

Developer has

submitted

complete

application,

consistent with the

Project Concept Plan, for approval of the Project to DRB and the HPB or Joint Board, which
application

the Parties acknowledge has received

final

and unappealable approval.

Upon receipt

of approval of the Project Concept Plan and this Agreement by the City Commission, Developer

shall prepare Plans and Specifications for construction of the Project, as approved by the DRB,
and/ or

the HPB,

submitted

for

Commission

and/ or

Building

approves

Joint Board,

Permit

applicable.

The Plans and Specifications shall be

thirty-two ( 32)

weeks from the date on which the City

as

within

the Project Concept Plan and this Development

Agreement, and the

approvals become final and non- appealable.

b)

Developer

by the City of the Plans and

Specifications diligently and in good faith. City( in its proprietary capacity) shall cooperate, but
at no cost to City, with all reasonable requests of Developer in respect.thereof.
Section 2. 6

shall

pursue

approval

Conditions Precedent to Developer' s

Commencement of Construction of the Project.

The following conditions precedent are intended for the benefit of City and shall not be
modified or waived except by written instrument executed by the City Manager:
a).

Subject to Section 2. 6 ( c), Developer shall not Commence Construction of

the Project unless and until Developer shall have obtained and delivered to City' s Consultant
copies of all Permits and Approvals required to Commence Construction, all of which shall be
consistent with
ith the approved Project Concept Plan and the Plans and Specifications unless

modified by Developer and approved by City in its proprietary capacity in accordance with the
provisions of this Agreement.

18)
MIAMI 699472. 17 7198217084

5/ 20/ 05 2: 13 PM

b)
City( solely in its capacity as the owner or future owner of a portion of the
Transit Facility and the Transit Elements and not in its governmental capacity) shall reasonably
cooperate, but at no cost or liability to City, with Developer in obtaining the Permits and
Approvals

and

any necessary utility

access agreements,

shall sign any application reasonably

made by Developer which is required in order to obtain such Permits and Approvals and utility
access agreements and shall provide Developer with any information and/ or documentation not
otherwise reasonably available to Developer( if readily available to City and City locates them in
its files)

is necessary to

which

Any

agreements.

procure

such accommodation

such

by City

Permits
shall

be

and

Approvals

and utility access

without prejudice

to, and shall not

constitute a waiver of, City' s rights to exercise its discretion in connection with its governmental
functions and.shall be without warranty or representation.
Prior to Commencement of Construction of the Project, Developer shall
City a payment and performance bond ( the " Payment

c)

cause

the General Contractor to furnish to

and Performance Bond") in a form reasonably acceptable to City, issued by a surety listed in the
most recent United States Department of Treasury listing of approved sureties or otherwise
reasonably acceptable to City Manager ( if Developer' s Institutional Lender providing
construction loan financing approves the surety, City shall be deemed to have done so),
guaranteeing the payment and performance of the General Contractor under a guaranteed
maximum price contract for the Construction of the Project. City may accept, in its sole and
absolute discretion, for any reason and/ or for no reason whatsoever, a completion guarantee from

the General Contractor, together with bonds for each subcontractor whose subcontract exceeds
substitution for such Payment and Performance Bond.
City shall be named ( jointly

350,000, in

any Recognized Mortgagee, but the lender shall have first opportunity to
dual obligee under the Payment and Performance Bond.
with

complete) as a

d)

Prior to Commencement of Construction of the Project and prior to any

the City' s Transit Facility Contribution ( except for the funds
earmarked.,for the Transit Facility Dedication Area and the Transit Facility Dedication Area
Finishes, which shall be funded as provided in this Agreement ( anything in the Vacation
disbursement

Resolution

of

and

any

portion of

Vacation

described

Agreement

following
funding), the following shall have occurred:

notwithstanding)

and

none

of

the

in

conditions,

Section
other

6. 2. 1( iv)

than (

vi),

to

the

contrary

shall apply to said

i)

Developer-shall have obtained the written commitment of the Institutional Lender providing
construction loan financing for the Project and any other then lenders for the Project( in form and
substance reasonably acceptable to the City Manager) to the fee simple conveyance to the City of
the condominium unit( s) comprising the City Spaces, the City Elevator and the other Transit
Elements (
and

in the

without

excluding the Transit Facility Dedication Area, which shall be dedicated at the time
manner provided

limitation, free

interests),

for herein),

only to the Permitted Exceptions ( including,

lenders' financing and mortgage and other security

subject

and clear of such

Substantial Completion (

provided this Agreement has not previously been

terminated and payment has been made to the City to repay the City's Transit Facility
upon

Contribution and any other amount owed to it as a result of such termination as provided in this
Agreement);

19)
MIAMI 699472. 17 7198217084
5/ 20/ 05 2: 13 PM

ii) Developer shall have completed its construction loan closing with an Institutional Lender for
the Project,

and in connection therewith the Institutional Lender shall have entered into an

agreement with City pursuant to which the Institutional Lender shall recognize and agree that its
rights are subject and subordinate

the

with

to this Agreement

and shall agree ( which agreement will run

in title,

in form and substance reasonably

Property and be binding
to the City Manager) that prior to commencement of foreclosure proceedings of the
on

successors

acceptable

Property or prior to the acceptance of a deed in lieu thereof, the Institutional Lender shall elect
written notice to City ( provided this Agreement has not previously been terminated and
payment has been made to the City to repay the City's Transit Facility Contribution and any
by

other amount owed to it as a result of such termination as provided in this Agreement) either( X)

to irrevocably and unconditionally cause the Project to be completed in accordance with this
Agreement and fulfill Developer's remaining obligations under this Agreement( which obligation
shall

be joint

and several with

Developer

and

Guarantors) with reasonable dispatch upon the

conclusion of foreclosure or the acceptance of a deed in lieu thereof( and the City shall honor
this Agreement as a direct agreement between it and the Institutional Lender at foreclosure or
deed in lieu. in

Y) to repay to the

City ( which repayment shall be secured by lien

rights that are not subject to being foreclosed in connection with a foreclosure by such
such case) or(

Institutional Lender

of

its security for its loan) no later than 30 days after conclusion. of

foreclosure or the acceptance of a deed in lieu of foreclosure the full amount of the City's Transit
Facility Contribution actually disbursed by the City ( less the portion thereof allocated to the
Transit Facility Dedication Area and the Transit Facility Dedication Area Finishes) together with
interest thereon at the lesser of ( A) the average yield on an annualized basis generated by

investments actually made by the City in accordance with the City's Investment Policy and
Procedure ( designed to assure the preservation of principal, a copy of which has been furnished
to Developer) during the like period of time or( B) simple interest at the rate of 4% per annum, in
each case

from

the date of disbursement until the date repaid, whereupon ( contemporaneously

with receipt of which)

Facility

City shall relinquish all interests in the Project other than the Transit

Dedication Area

and

this Agreement shall terminate (

any failure by the Institutional

Lender to provide written notice of its election prior to the institution of foreclosure proceedings

or the acceptance of a deed in lieu of foreclosure shall be deemed the election of item (Y) unless
otherwise mutually agreed to by the City and said Institutional Lender);
iii) Developer' s construction lender( which shall be an Institutional Lender) shall have provided

City with a recordable agreement that will run with the Property( and be superior to the lien of all
reasonably acceptable to the City Manager pursuant to which such lender agrees
provided this Agreement has not previously been terminated as provided in this Agreement) to
the filing of the Declaration upon Substantial Completion (either as the developer thereunder ( if
it has acquired title) or through a mortgagee joinder), and agrees, promptly upon the filing of the
mortgages)

Declaration to convey ( if it is then the

then a

mortgagee)

the other Transit

the condominium

owner) and release

unit( s)

from the lien

of

its

mortgage ( if

it is

comprising the City Spaces, the City Elevator and

Facility Dedication Area, which shall be

Elements ( excluding the Transit

conveyed at the time and in the manner as provided elsewhere in this Agreement);

iv) Guarantors shall have each executed and delivered to City the Guaranty;

v) the Transit Facility Dedication Area shall have been dedicated to the City, subject only to the

Permitted Exceptions;

20)
MIAMI 699472. 17 7198217084
5120/ 05 2: 13 PM

vi) Developer shall have provided a title insurance commitment evidencing its ownership of the
Land,

only to the Permitted Exceptions (

subject

and subject

to

vacation of

the

Alley,

if the

has not then

and a survey depicting the Land which reflects no matters that
are inconsistent with this Agreement or the transaction contemplated hereby( improvements that
occurred),

vacation

are contemplated

vii) all of

At the

the

to

be demolished

Developer' s

of

be deemed inconsistent

or objectionable); and

b) and( c) above shall have been satisfied.

conditions of( a), (

request

shall not

other.

construction- or

lender,

City, Developer and Developer's

construction or other Lender shall enter into a direct agreement memorializing the foregoing

matters and such other matters as the City or such lender may reasonably request ( and which, in
the

case of

the

City,

are not

substance of which shall

inconsistent

be reasonably

with

the

acceptable

provisions of

to the

City

this Agreement),

Manager

and such

the form and

lender.

The

immediately preceding sentence and the provisions of( a) and( c) above shall apply, to the extent
applicable, and be a condition precedent to any supplemental financing by another lender( other
than Developer's construction lender) that will encumber the Property prior to conveyance to the
City of the City Spaces and other Transit Elements ( excluding the Transit Facility Dedication
Area).

Commencement and Completion of Construction of the Project.

Section 2. 7

Developer
after

the later

of(

have been issued,

diligence
Project

City

and

Commence Construction

expense ( a)

on or

before sixty ( 60) days

Developer' s

construction

loan has been

closed (

all of which Developer

in good faith), and( ii) all conditions precedent set forth in Section 2.6
thereafter continue to prosecute Construction of the Project with
continuity to completion; and ( c) achieve Substantial Completion of the entire

satisfied;

and

on or

its

all Permits and Approvals necessary for the Commencement of Construction

and

diligently

shall pursue

have been

shall at

i)

and

( b)

before the Completion Deadline.

Developer

Commencement

shall

enter

of Construction

into

occurred(

Promptly after Commencement of Construction,

acknowledging the date upon which

the" Construction Commencement Date"). Subject to

an

agreement

any right of Developer to terminate this Development Agreement as herein provided, if, after
Developer has Commenced Construction, Developer fails to diligently prosecute Construction of
the Project ( subject to Unavoidable Delays), and such failure

continues (

subject to Unavoidable

consecutive days after Developer' s receipt of notice of such failure, City

shall, in addition.to all of its other remedies under this Agreement or at law or in equity, have the
right to seek such equitable relief( either, mandatory or injunctive in nature, including specific
performance) as may be necessary to cause diligent and continuous prosecution of Construction
of the Project( subject to Unavoidable Delays) by Developer.
Delays) for thirty ( 30)

Section 2. 8

ComRletion of Construction of the Project.

I (

a)

Substantial Completion of the Project shall be accomplished in a diligent

manner, and in any event by the Completion Deadline, and final completion of the Construction
of the Project, including but not limited to completion of all punch- list items, shall be
accomplished
workmanlike

promptly and in a diligent manner thereafter, in each case in a good and

in substantial accordance with the Plans and Specifications ( with no

manner,

21)
MIAMI 699472. 17 7198217084

5120/ 05 2: 13 PM

material

deviations

except as

expressly

permitted

herein), and in accordance with all applicable

Requirements.

b),

Upon Substantial Completion of the Project, Developer shall furnish City

the following:
i)
AIA

certification

a certification of

form) that it has

judgment,

the. Architect (

examined

Construction

certified to City on the standard

the Plans and Specifications

and

that, in its

Project has been Substantially Completed

substantially in accordance with the Plans and Specifications applicable thereto and, as
constructed, the Improvements ( including the
City' s Improvements and the Developer' s
professional

of

the

Improvements) comply with all applicable Requirements.

ii)

final lien waivers in form and substance reasonably satisfactory to

City from each contractor, subcontractor, supplier or materialman retained in connection with the
Construction

the Project,

evidencing that such Persons have been paid in full for all work
performed or materials supplied in connection with the Construction of the Project.
of

iii)

a complete set of signed and sealed as- built plans and a survey

showing the Improvement( s) for

shall

have

an

unrestricted

which

license

the

to

Construction

use

such

of

the

as- built

Project has been

plans

and

completed.

City

survey ( and prior to

Commencement of Construction Developer shall provide to City the architect' s written consent
thereto)
for any purpose related to the Development Site without paying any additional cost or
compensation therefor;

iv)

a Contractor' s Final Affidavit in form and substance reasonably

City Manager executed by the General Contractor ( A) evidencing that all

contractors,. subcontractors, suppliers and materialmen retained by or on behalf of Developer in
connection with the Construction of the Project have been paid in full for all work performed or
satisfactory to the

materials

supplied
with

complying

in

all

connection

of

with

the

the requirements for

Construction
a

final

of

the Project

contractor' s

and (

B)

otherwise

affidavit under the Florida

Construction Lien Law, Chapter 713, Florida Statutes, as amended;

v)

Agreement) has been'

that the Declaration ( in the form required

by this
in the Public Records of Miami- Dade
County, Florida, subject

evidence

recorded

only to the Permitted Exceptions and with all proper mortgagee joinders; and
vi)

a special warranty deed conveying the condominium units to be

conveyed to the City pursuant to the terms of this Agreement( but including in any event the City
Improvements, to the

extent not

previously

conveyed),

subject only to the Permitted Exceptions.

Each of City and the Developer shall be liable for the payment of one half of any documentary
stamp tax and/ or surtax that may be payable in connection with said conveyance ( but the Parties
shall cooperate with each other to attempt to obtain a waiver or exemption, under the Brownfield
Redevelopment Act or
unless Developer is

otherwise),
also

regardless of whether or not the City is statutorily exempt

Notwithstanding the foregoing, the City shall pay

exempt).

Developer's
one-half( or promptly reimburse Developer therefor) up to the remaining balance of
Credit,

the

as

defined in Section 6. 3( c).

If, after giving effect to the immediately preceding

22)

MIAMI 699472. 17 7198217084

5/ 20/ 05 2: 13 PM

sentence,

there is

still

remaining balance

on

the Credit,

City shall pay same in cash to

Developer at the time of delivery of the deed contemplated by this subparagraph( vi).
Following Substantial Completion

c)

of

the Project, Developer shall remain

construction of the Project with diligence,

fully
notwithstanding
conveyance to the City of the City Spaces and other Transit Elements prior thereto.

obligated

to

Section 2. 9.

complete

Confirmation of Land Development Regulations.

The zoning district classification of the Land (

including the Alley upon its vacation as
by this Development Agreement) is and shall be CPS- 2, as defined in the Land

contemplated

Development Regulations.
Section 2. 1.0

Required Development Permits.

Developer shall be solely responsible for obtaining all final, non-appealable Development
Approvals,

as applicable.

City( in its propriety capacity) shall cooperate, at no cost or liability to

City, with all reasonable requests of Developer in respect thereof.

Section 2. 11

Developer' s night of Termination.

Notwithstanding anything to the contrary contained herein, Developer shall have the right

to be released from its liability and obligations and to terminate this Development Agreement by

written notice to City delivered not later than the Outside Date if(a) changes to the Developer' s
Project Design, Project Concept Plan,
the Plans and Specifications or any other aspect of the
Project required by the DRB, HPB, PB, Joint Board,
or any other Governmental Authority
including the City), render the Project economically unfeasible in the sole judgment of
Developer, ( b) the Project cannot meet Concurrency Requirements under Section 163. 3180,
Florida Statutes ( 1997),

Developer,

render

or

the costs

of

concurrency

in the sole judgment of

Developer, after good faith efforts,

mitigation,

the Project economically unfeasible, ( c)

has been unable to obtain any Development Approvals or a Building Permit for the Project
pursuant

lease

to: the Plans

commitments

and

for

arrange construction

at

loan

Specifications, ( d) after good faith efforts, Developer has not obtained

least 90%

financing

of the Retail Space of the Project or has not been able to

at market rates and

terms, ( e)

federal, state, county or local

funds or incentives sought by Developer pursuant to Article 20 herein are, in the sole judgment
Developer, inadequate, or ( f)
Development Agreement for any
of

Developer in its sole discretion elects to terminate this

In the event of termination of this Development

reason.

Agreement pursuant to this Section, each Party shall bear its own costs and expenses incurred in

connection with this Development Agreement and neither Party shall have any further liability to

the other except for any matters that expressly survive termination of this Development
become void

Agreement. The right of termination.pursuant to this Section 2. 11 shall expire and

if not exercised by Developer prior to the Outside Date.
Any termination under this

Section shall

not affect the rights and obligations of the Parties in respect of the Alley and Transit Facility
Dedication Area which are governed by the Vacation Agreement and Vacation Resolution.
Section 2. 12

City' s Might of Termination.

23)
MIAMI 699472. 17 719829 7084
5/ 20/ 05 2: 13 PM

Notwithstanding anything to the contrary contained herein City shall have the right to be
released from its liability and obligations and to terminate this Development Agreement if for
any reason; ( a) Developer has not obtained a Building Permit for the
Outside Date; or ( b) Developer has not Commenced Construction of

March 1,

2007; or (

Project on or before the

the Project on or before

City in its sole discretion determines that the Project and the public

c)

purposes to be derived from it render the Project unfeasible or unwarranted in light of the City' s
Transit

Facility Contribution, and other provisions of this Agreement, or ( d) Developer has not
the fully executed Grocery Lease required by Article 15 of this Agreement and
delivered a copy thereof to City on or before the Outside Date; or ( e) City in its sole discretion
obtained

elects

not

to proceed

Agreement,

with

this Project.

In the event of termination of this Development

to this Section 2. 12,

pursuant

each Party shall bear its own costs and expenses

incurred in connection with this Development Agreement and neither Party shall have any
further liability to the other except for any matters that expressly survive termination of this
Development Agreement.
and ( e)

City' s right to terminate this Agreement pursuant to subparagraphs( c)

above shall expire and shall not thereafter be exercisable in the event City does not
its termination

forty- five ( 45) days after Developer has provided its

City. " Developer' s Construction Application Notice" shall
mean written notice given by Developer to
City ( a) stating that either ( i) Developer intends
within 45 days thereafter to submit its loan application to a specific Institutional Lender for
construction loan financing of the Project and to
pay any required application fee or ( ii)
exercise

options

within

Construction Application Notice" to

Developer intends within 45 days thereafter to submit its building permit application to the City
for the Project;

hereinafter in

and (

b) containing the following language in bold 12 point type ( i.e. as reflected

in

letters " CITY' S FAILURE TO EXERCISE ITS

or
2. 12( e) OF THE DEVELOPMENT
AGREEMENT WITHIN FORTY- FIVE ( 45) DAYS OF THIS NOTICE WILL
CONSTITUTE THE WAIVER OF CITY' S RIGHT TO EXERCISE CITY' S
TERMINATION RIGHTS UNDER SAID SUBPARAGRAPHS." The right of termination
quotes)

TERMINATION

and

RIGHT

all

capital

UNDER

2. 12( c)

pursuant to this Section 2. 12 shall expire and become void if not sooner terminated as aforestated
or exercised

by City

prior

to the Outside Date.

Any termination under this Section shall not

affect the rights and obligations of the Parties in respect of the Alley and Transit Facility

Dedication Area which are governed by the Vacation Agreement and Vacation Resolution.
ARTICLE 3

PLANS AND SPECIFICATIONS

Section 3. 1

ApRroval and Modification of Plans and Specifications.

a)

In

accordance

with

Section 2. 6,

and simultaneously with submitting its

application. for the required Building Permit, Developer shall prepare and submit to City (in its

proprietary capacity) the Plans and Specifications, which Plans and Specifications shall be used
to obtain the required Building Permit and shall be consistent with the approved Project Concept
Plans.

If such submitted Plans and Specifications are materially inconsistent with, or contain

material modifications to, the Plans and Specifications as approved by the DRB and the HPB or
Joint Board, if

or with the approved

applicable,
PP
pp

Project Concept Plans, then such Plans and

Specifications shall clearly indicate, by ballooning, highlighting, black-lining or describing in

24)
MIAMI 699472. 17 7198217084
5/ 20/ 05 2: 13 PM

writing in
such

detail in

sufficient

a memorandum

accompanying such Plans and Specifications, all

Business Days of its receipt of such Plans and

Within ten ( 10)

modifications.

Specifications, City shall notify Developer, in writing, describing, with specificity, the basis for
such disapproval of any material inconsistencies or material modifications of which City
disapproves between the proposed Plans and Specifications and the Plans and Specifications as
approved by the DRB and HPB or Joint Board, if applicable, or the approved Project Concept
Plans, it

being

agreed

however, that if Developer has

complied with

Section 18. 2 ( c) hereof,

City' s failure to so notify Developer of its disapproval within such time period shall be deemed
to constitute

if

that

City

City' s
shall

conclusive approval of such

notify Developer

Plans

ten ( 10)

within

Specifications; provided, however,

and

Business Days following its receipt of

Developer' s request that the complexity of such changes necessitates an extension of such time

period
to complete
City' s review, such period shall be extended to the date which is reasonably
and
agreed
to

mutually

by City

and

Developer,

not

to exceed

thirty( 30) days after City' s receipt

of the proposed inconsistencies or modifications; provided, further, however, that City shall not

be responsible for, and shall not be deemed to have approved, any such material inconsistency or
modification that is
not

to

the

indicated

herein,

contained

contrary

as required

City

by

this Section 3. 1 ( a).

shall

not

object

to

any

Notwithstanding anything
modifications

which

are

necessitated to comply with Requirements and which do not have a material adverse affect upon
the

City Spaces

or

the Transit

Elements.

modifications-that are the subject of this

b)

Otherwise, City shall be reasonable in considering any

Section 3. 1 (

a).

If Developer desires to materially modify previously-approved Plans and

Specifications,
Developer shall submit any such modified Plans and Specifications to City for
approval ( in its
City' s
or

its

but only to the extent they affect the Transit Facility

Such modified Plans and Specifications shall clearly indicate, by ballooning,
proprietary capacity),

operation.

highlighting, black- lining

or

accompanying
Plans and Specifications.

such modified

modifications,

City

shall

describing

Plans

and

in writing in

sufficient detail in a memorandum

Specifications, all such proposed modifications to the

Within ten ( 10)

notify Developer

Business Days of its receipt of the proposed

in

writing,

with

specificity

of

any

material

inconsistencies or material modifications of which City disapproves between the Plans and

Specifications
as modified and the Plans and Specifications previously approved by City, it being
however, that if Developer has
agreed

complied with

Section 18. 2 ( c)

hereof, City' s failure to so

notify Developer of its disapproval during such time period shall be deemed to constitute City's
conclusive
approvalten
of such
Plans and Specifications; provided, however, that if City shall notify
Developer
( 10)
within

Business Days following its receipt that any of the proposed

modifications to the Plans and Specifications that the complexity of the proposed modifications
necessitates an extension of such time period to complete

City' s

review,

such period shall be

extended.
to. the date which is reasonably and mutually agreed to by City and Developer, not to
exceed
thirty ( 30) days

after

City' s

receipt of the proposed modifications; provided,

further,

however, that City shall not be that

responsible
for, and shall not be deemed to have approved, any
is
such

proposed

Notwithstanding

not

indicated

anything to the contrary

contained

modification

as

required

herein,

by

this

Section 3. 1 ( b).

City shall not object to any

modifications to the Plans and Specifications which are necessitated by Requirements and which

do not have a material adverse affect on the City Spaces or the Transit Elements and shall not
unreasonably withhold consent to other modifications.

2s)_
MIAMI 699472. 17 7198217084
5/ 20/ 05 2: 13 PM.

If City disapproves any material inconsistencies or material modification

c)

to Section

3. 1 (

a) above, or City disapproves any of the

material modifications to or material inconsistencies in the Plans and Specifications pursuant to
in the Plans

and

Section 3. 1 ( b)

Specifications

above,

then Developer

expedited arbitration pursuant

inconsistency

pursuant

or modification

shall, at

its

election either: (

x) submit City' s disapproval to

to Section 3. 4 and Section 19. 1 as to the (

and/ or (

ii) the

reasonableness

of

i) materiality of the

the disapproval

or (

y)

within

thirty( 30) days after receiving City' s disapproval notice, submit revised Plans and Specifications
or a revised modification to the Plans and Specifications to meet City' s objections, which revised
Plans
or(

and

b),

Specifications

or revised modification shall

be

reviewed as provided

in Section 3. 1 (

a)

as applicable.

d)

Nothing

contained

in this Section 3. 1, however, shall relieve Developer

from the obligation to obtain all necessary Approvals and Permits from Authorities, including
City in its governmental capacity.
Compliance with Requirements; Construction Standards.

Section 3. 2

Notwithstanding anything to the contrary contained herein, the Plans and

Specifications shall comply with all applicable Requirements and will be generally consistent
with the approved Project Concept Plans subject, however, to any changes approved or deemed
approved, by City. It is Developer' s responsibility to assure such compliance. City' s approval in
accordance with this Section 3. 2 of any Plans and Specifications shall be deemed to be a
determination by City( in its proprietary capacity) that the Plans and Specifications so approved
are in substantial conformity with the Developer' s Project Design or are otherwise acceptable to
City, but shall not be, and shall not be construed as being, or relied upon as, a determination that
such Plans
and Specifications comply with applicable Requirements, including, without
a)

any Requirements providing for the review and

Specifications by any Governmental Authority including City ( in
limitation,

approval

of

the

Plans

and

its governmental capacity as

opposed to its proprietary capacity).

b)

Construction of the Project shall be carried out pursuant to Plans and

by licensed architects and engineers, with controlled inspections

conducted by a licensed architect or professional engineer or other professionals as required by
Specifications

prepared

applicable Requirements.
Section 3. 3

Design and Dicor.

Notwithstanding anything to the contrary contained in this Agreement, City ( in its

proprietary capacity) shall not have any approval rights with respect to matters of interior or
exterior design and aesthetic decor of the Retail Space. Further, so long as Developer materially
conforms with the Plans and Specifications, City ( in its proprietary capacity) shall not have any
approval rights with respect to matters of interior or exterior design and aesthetic decor of the

Transit Facility, except as and to the extent specifically requiring City's consent under Section
3. 1 of this Development Agreement or to the extent the quality standards or appearance for any
portion

of

the Transit

Developer Spaces.

Facility

are

lower than, or materially different from, those for the

Any City approval that may be required under the immediately preceding

sentence shall not be unreasonably withheld, conditioned or delayed, and City shall be liable for
26)
MIAMI 699472. 17 7198217084
5/ 20/ 05 2: 13 PM

any increased costs or costs associated with any delay resulting from the approval rights
exercised by the City.
Section 3. 4

Development Dispute.

Any dispute or disagreement between City and Developer arising Prior to

a)

Substantial Completion with respect to the matters described in Section 3. 4( b) ( a" Development
Dispute") shall be finally resolved in accordance with the provisions of Section 19. 1.
b)

Any,contention by Developer that City has unreasonably failed to approve

or give its consent to any modifications to the Plans and Specifications pursuant to Section 2.5,
Section 3. 1 (

a)

or (

b)

or

design

to any

decor

and

matters

pursuant

to Section 3. 3,

or any

contention by City that Developer is not complying with its obligations or responsibilities set
forth in those sections shall be the subject of a Development Dispute pursuant to Section 3. 4( a)
above.

ARTICLE 4

CITY PARTICIPATION
Section 4. 1

City

City' s Right to Use Field Personnel.

reserves

representative (

from

the right,

City'

at

its

sole

cost

Consultant, City

or

and

expense,

another

to

maintain

entity designated

one (

1)

by City)

on- site

at the

Development Site to conduct inspections of the Development Site (provided, however, that City
shall be entitled to maintain additional on-site. representatives from time to time to the extent
reasonably necessary to perform such inspections), and Developer agrees to provide access to the
Development Site, including, without limitation, access to inspect the Construction Work, the
preparation work and work

in

progress at

the

Development Site.

No such inspection by the

City' s on-site representatives shall impose upon City responsibility or liability for any failure by

Developer to observe any Requirements or safety practices in connection with such Construction

Work or constitute an acceptance of any work which does not comply with any Requirements or
the provisions of this Agreement, and no such inspection shall constitute an assumption by City

of any responsibility or liability for the performance of Developer' s obligations hereunder, nor
any liability arising from the improper performance thereof. The City' s on-site representatives

shall not interfere with any Construction Work being performed at the Development Site, shall
comply with all safety standards and other job-site rules and regulations of Developer and shall
visit the site at their sole risk.
City' s on- site representatives are inspectors only. The on-site
representatives shall make only such communications with Developer' s construction manager(s)
General Contractor ( or, with the approval of, and in the presence of, the Developer's
or the General Contractor,
the subcontractors or any other Person
involved in the Construction of the Project)
as are reasonably necessary to enable such on-site
and

the

construction manager( s)

representatives to conduct their investigations, and in no event shall the on-site representatives
give directions to such Persons. Developer shall endeavor to provide reasonable prior notice to

City' s

on- site

representatives

representatives of

of

Developer, any

any regularly

schedule

general contractor, the

construction

meetings

involving

Project Architect, and/ or the Project

engineer, and City' s representatives shall be entitled to attend( but there shall be no obligation to
27)
MIAMI 699472. 17 7198217084
5/ 20/ 05 2: 13 PM

reschedule

any meeting to

accommodate

the schedule

of

City' s

on- site representatives).

All

expenses incurred by City' s on-site representative shall be paid by City.

ARTICLE 5

MISCELLANEOUS CONSTRUCTION PROVISIONS

Section 5. 1

Art in Public Places.

Developer acknowledges having been advised that compliance with the

legislation, as codified in Chapter 82, Article VII, Sections
82- 536 through 82- 612 of the City Code, and as same is amended, is applicable to the Project.
a)

City'

Art in Public Places ( AIPP)

b)

Developer shall request that, in consideration of Developer' s providing the

substantial art work depicted on the approved Project Concept Plan by world renowned local
artist Romero Britto,
and the Potamkin family' s commitment to contribute to the City' s Bass

Museum,

the City Commission approve a resolution confirming that the requirements of the

AIPP legislation have been satisfied.

In the event the City Commission determines that the AIPP legislation
satisfied by the Romero Britto artwork,
and the Potamkin family' s
commitment to contribute to the Bass. Museum, Developer shall have the right to terminate this
c)

requirements

are

not

Agreement by written notice to City not later than the Outside Date ( as defined in Section 2. 11)
and if Developer does not give.notice of termination on or before such date, Developer shall be
deemed to have waived such right of termination and shall not thereafter be entitled to terminate
this Agreement pursuant to this Section 5. 1).
Section 5. 2

Prevailing Wage.

Developer shall pay all Persons employed by it with respect to Construction of the
without subsequent deduction or rebate unless. expressly authorized by Requirements,

Project,

not less than the relevant prevailing wage as prescribed by City of Miami Beach Ordinance

No. 94- 2960 ( the

City' s Prevailing

Wage Ordinance is
comply,

Wage

Ordinance),

but only to the extent the City' s Prevailing

applicable to the construction of the

Project.

Developer further agrees to

and assure the compliance by the Contractor and any subcontractors with respect to

Construction of the Project, with the applicable employee protection requirements identified in
Section 24 of the FTA Master Agreement, to the extent applicable.
Section 5. 3

FTA Requirements.

Developer recognizes that City may in its sole and absolute discretion pursue funding of
the
eligible
portions of City' s Transit Facility Contribution from the FTA or another funding
source,
although obtaining funding from any source is not a condition of this Development

Agreement

or

City' s

obligations

hereunder.

Developer agrees to use reasonable and good faith

efforts to comply with all currently effective FTA Requirements, including the requirements of
the existing FTA Master Agreement, but only with respect to the construction, use and operation
of

the Transit Elements (

and such obligations shall not terminate upon expiration of the Term

28)
MIAMI 699472. 17 7198217084
5/ 20/05 2: 13 I' M

but shall terminate upon termination of this Agreement for any other reason) but shall remain in
thereafter for as long as FTA requires). In the event that this Development Agreement

effect

requires the Developer to undertake responsibilities usually performed by the City, as the FTA
Recipient, Developer agrees to use reasonable and good faith efforts to comply with all FTA
Requirements

other

and

requirements

and

responsibilities

federal law,

under

regulation

or

directive, but only to the extent applicable to the Transit Elements ( and City shall provide
reasonable guidance and input to Developer in Developer' s attempts to do so), and shall extend

the FTA Requirements as applicable to any and all contractors and subcontractors on the Project,
extent applicable to the Transit Elements.
Notwithstanding the foregoing,
Developer shall not be required to comply with FTA Requirements if such requirements are

but only to the

more costly to comply with than what is contained in the Project Concept Plan unless City, at its
option, elects

Act

for the

excess costs (

with

the DBE requirements

assumed $

9, 500, 000

assumed $

9, 500, 000

except that Developer shall comply with Davis Bacon

City's

shall, consistent with the

and

comply

to pay

of

FTA

approved

the FTA

DBE

plan,

use reasonable efforts to

Master Agreement based

up to 10%
less than 5%

on

Transit

of an

of an
City'
Facility Contribution ( but in no event
City's Transit Facility Contribution) at no additional cost to City, and
Developer-shall also comply with any other requirements of the FTA Master Agreement at the
City's request and at the City's cost, and further provided, in respect of all.FTA Requirements,
s

they are reasonably capable of being implemented without unusual delay and without materially
character of the Project).
Any costs incurred by Developer in complying with the
provisions of FTA that are the obligation of City shall be reimbursed to Developer by City within
changing the

30 days of.invoicing,

by reasonable substantiation. Anything in this Development

Agreement to the contrary notwithstanding, in the event of a conflict between FTA Requirements
and

the

provisions

accompanied

Development Agreement, the provisions of this Development

this

of

Agreement shall govern.

Section 5. 4

Construction Agreements.
a)

performance

of

Required Clauses. All Construction Agreements which provide for the

labor on the Development Site shall include the following provisions ( or

language intended to accomplish the objectives specified below, which language is. reasonably
approved in advance by City):
i)

To the fullest

hold harmless the

hereby indemnify

and

their

elected

respective

and

Commissioners), directors,
assigns,

agents,

partners,

including,

without

1)

of

invitees

and

limitation,

affiliates,

by

law, Contractor shall and does

Miami Beach, Florida(

officials

subcontractors,

demands, damages, losses, fines,

Expenses),

City

appointed

officials, officers,

contractors,

principals,

extent permitted

including

shareholders,

experts,

from

the

and

City'

members,

any successor), and

Mayor and City

employees,

licensees, lessees,

successors,

mortgagees,

trustees,

liability, claims,
expenses and costs of every kind and nature,

penalties,

and

against

costs of suit and attorneys

fees

any

and

and

all

disbursements ( collectively,

resulting from or in any manner arising out of, in connection with or on account of-

any act, omission, fault or neglect of Contractor, or anyone employed by it in connection with

the work or any

phase

thereof,

or

any

of

its

agents, contractors,

subcontractors, employees,

invitees or licensees in connection with the work, or anyone for whose acts any of them may be
liable, ( 2)

claims of injury (including physical, emotional, economic or otherwise) to or disease,

death of persons or damage to property ( including, without limitation, loss of use

sickness or

29)
MIAMI 699472. 17 7198217084
5/ 20/ 05 2: 13 PM

resulting therefrom)

occurring or resulting directly or indirectly from the work or any portion

thereof or the activities of Contractor or anyone employed by it in connection with the work, or
any

portion

thereof, or any

of

its

respective

agents,

contractors,

subcontractors,

employees,

invitees or licensees in connection with the work, or anyone for whose acts any of them may be
liable,

or (

3)

liens

mechanics or materialmen' s or other

or claims ( and all costs or expenses

filed or arising out of the work or any phase thereof other than
liens or claims arising out of Developer' s failure to make the required payments properly due
associated

therewith)

asserted,

Contractor. In no. event shall Contractor be able to seek or be entitled to consequential damages
including, without limitation, loss of profits or loss of business opportunity) for claims arising
under

This indemnification

this contract.

limitation

be limited in any way

obligation shall not

by: ( x)

any
damages, compensation or benefits payable to Contractor

the amount or type of

on

under worker' s compensation acts, disability benefit acts or other employee benefit acts or other

insurance provided for by-this contract; or( y) the fact that the Expenses were caused in part by a
party indemnified hereunder.

The Contractor further agrees that this indemnification' shall be

made a part of all contracts and purchase orders with subcontractors or material suppliers.

The

indemnification agreement included in this contract is to be assumed by all subcontractors.

ii)

A provision which grants to Developer the right to assign to City,

subject and subordinate to the rights of the Developer' s Recognized Mortgagee, the contract and
Developer' s

thereunder,

City' s request, without the consent of the Contractor and

without the City' s thereby assuming any of the obligations of Developer under the contract
occurring prior to such assignment and/ or purchase order. City shall have the right to enforce the
rights

at

full and prompt performance by the Contractor of such contract.

iii)
applicable

to Contractor

Wage Ordinance, if

Contractor
and

such provision

is

to

gr
agrees

the Project,

comply
p y

including,

with

without

al 1

laws

limitation,

applicable to construction of the

and

requirements

the City' s Prevailing

Project, and the FTA

Requirements.

iv)

Contractor expressly acknowledges and agrees that Contractor and

suppliers, materialmen and laborers are prohibited from filing liens against
property of-the City of Miami Beach, Florida, and nothing contained in the contract shall operate
all subcontractors,

to

waive

such

prohibition

nor

any

other

constitutional,

statutory,

common

law or other

protections afforded to public bodies or governments.

v)

expressly
the

assumes

Unless and until the City of Miami Beach, Florida or its designee

the obligations

of

Developer

same arise- from and after such assumption),

under

this

contract (

and then only to the extent

the City of Miami Beach, Florida, shall not be a

party to this contract and will in no way be responsible to any party for any claims of any nature
whatsoever arising or which may arise in connection with such contract.

Contractor hereby agrees that notwithstanding that Contractor

performed work at the Development Site or any part thereof, the City of Miami Beach, Florida
vi)

shall not be liable in any manner for payment or otherwise to Contractor in connection with the

work performed at the Development Site, except to the extent the City of Miami Beach, Florida,
expressly

assumes

the obligations of

Developer hereunder ( and then only to the extent such

obligations arise from and after such assumption).

30)
MIAMI 699472. 17-7198217084

5/ 20/ 05 2: 13 PM

All

vii)

which
are
granted
by Contractor and all
City as third party beneficiary. Contractor and all
subcontractors and suppliers agree, however, that Contractor and all subcontractors and suppliers
warranties

benefit

subcontractors shall run to the

of

shall look solely to the Developer and not to City for performance of all of Developer' s
obligations under the construction contracts and subcontracts.
b)

Developer shall use good faith efforts to include all of the foregoing
If Developer is unable to negotiate inclusion of any of the' foregoing provisions, or
doing so would materially and adversely impact the contract price, Developer may terminate this
provisions.

Agreement

prior

to the

Outside Date ( but

not

thereafter)

unless City agrees to waive the

applicable requirements.

Section 5. 5

Demolition of the Development Site.

Except

pursuant to that certain Historic Preservation Board Final Order

No. 1345,
approving a Certificate of Appropriateness, Developer shall not demolish any portion of the
Development Site:
Any demolition permitted.hereunder shall be performed in accordance with

all applicable Requirements.

Section 5. 6

Construction Staging.

Construction Staging for the Project will be confined to the Development Site or another
off-site

location

owned or

controlled

by Developer. Developer shall instruct all workers on the

Development Site to park their vehicles at an off-site location, so as to not materially impact

residents and other users of the

neighboring

residential areas.

If necessary to avoid disruption to

residential areas, the Parties shall agree upon one or more reasonable off-site locations.
ARTICLE 6

FINANCING OF PROJECT

CONSTRUCTION AND DISBURSEMEENT PROCEDURES

Section 6. 1

Developer' s Obligations.

Subject

to.

Section 5. 3

above,

Developer shall provide all of the funds necessary to

complete Construction of the Project except the City' s Transit Facility Contribution to be funded
by City. The City's Transit Facility Contribution shall be funded as set forth in Section 6.2. 1.
Section 6. 2

Disbursement of City' s Transit Facility Contribution; Alley.

Developer
construct,

subject

shall

to

design (

City' s

consistent

Transit

the approved Project Concept Plans) and

Contribution, as more. particularly set forth in

with

Facility

Section 6.2. 1 below, the Project, including the Transit Facility and the other Transit Elements to

be located on the Property, which Transit Facility shall be of sufficient capacity to accommodate
approximately 1081 cars, and the Transit Facility Dedication Area.
6. 2. 1.

City' s Transit Facility Contribution is subject to the following:

31)

MIAMI 699472. 17 7198217084

5/ 20/ 05 2: 13 PM

i)

City

will

fund

an

amount

equal

Transit

City's

to

Facility

Subject to Section 5. 3 above and any other express provisions of this Agreement,
City shall not be obligated. to fund any other costs of the Transit Elements or any other Project
Contribution.

Construction Costs.

In the event that costs of construction of the City Spaces and City
Improvements exceed the City' s Transit Facility Contribution for such item,-Developer shall,
subject to Section 5. 3 above and any other express provisions of this Agreement, be solely
responsible for payment of, and shall pay, all excess costs (" Excess Transit Facility Costs').
ii)

Developer

shall

also

be

entitled

to

retain

any

savings.

It is the intention and agreement of

Developer and the City that the City' s sole financial obligation with respect to the Project is,
subject to Section 5. 3 above and any other express provisions of this Agreement, to fund City' s
Transit Facility Contribution and that Developer shall be solely responsible for paying all other
Hard Costs and Soft Costs of the Project.
iii)

City shall fund City' s Transit Facility Contribution as follows:

1)

As to all amounts other than those allocated to the Transit

Facility
the

Dedication Area ( but

Transit

construction

hereto,

including those allocated to

Dedication

Facility
progresses

in

Area

Finishes),

accordance with

as

Exhibit " C"

anything in the Vacation Resolution and Vacation

Agreement described in Section 6. 2. 1( iv)

to the contrary

notwithstanding;

2)

As

to

the

amount

allocated

to

the

Transit

Facility

Dedication Area ( but excluding those allocated to the

Transit Facility Dedication Area Finishes), at the time of

the dedication thereof to the City,.which shall take place

simultaneously with the Commencement of Construction
and the issuance by the City Manager of the recordable
instrument( s) stating that both Conditions provided for in
iv) below have occurred, such that no further reversion of

the Alley to the City is possible. The form of the dedication

shall be by deed,
a copy of which is attached hereto as
Exhibit " MVI".

This provision shall survive termination of

this Agreement.
iv)

In

accordance with the City' s Requirements for Vacation of

City Rights- of-Way, as adopted on July 26, 1989 and the City' s Sale or
Lease of Public Property legislation, as codified in Chapter 82, Article II, Sections 82- 37 through
82- 3% City has vacated the Alley, subject, however, to possible reverter and/ or reconveyance as
provided in Resolution No. 2005- 25827 adopted February 23, 2005 ( the " Vacation Resolution")
and the " Vacation Agreement" executed in furtherance thereof.
The Alley shall revert to City,

Alleys, Easements

and

and Developer in confirmation thereof shall promptly upon written demand execute and deliver
to

City

Quit Claim Deed, subject to no liens or encumbrances other. than the Permitted
conditions ( the " Conditions") specified in the Vacation Resolution and/ or

Exceptions, if the

32)
MIAMI 699472. 17 7198217084
5/ 20/ 05 2: 13 PM

shall occur ( City shall, promptly upon request of Developer, confirm, by

recordable instrument signed by the City Manager, that these Conditions have been satisfied, if

Vacation Agreement

such

be the

this

Development Agreement

case, and

satisfaction of

15, 000

this obligation

the Conditions, to

per space),

occurrence' of an

of

terminate.

shall
allow

the

termination

The-

City

of

this Agreement),

agrees,

in which event

simultaneously with the

permanent removal, at a cost

to Developer of$ 45, 000

to be paid by Developer upon the earlier of Substantial Completion or the

of Default by Developer ( provided, however, that City shall waive

Event

payment of( or refund,

balance

shall survive

if

applicable)

the portion of this amount equal to the remaining unpaid

the Credit, as defined in Section 6. 3( c), if and at the time this Agreement is terminated

at any time prior to conveyance to City of the condominium units to be conveyed pursuant to this
Agreement),

of

Developer, to
while

initial

three ( 3)

allow

the

construction

metered

on

street

parking

spaces ( and,

at no additional cost to

removal of the remaining five ( 5) metered parking spaces

is proceeding) on the south side of 6th Street between Lenox Avenue

temporary

and Alton Road, adjacent to the Project ( the precise spaces to be reasonably agreed upon by the
to facilitate construction while initial construction is proceeding and thereafter to
provide, for transit and/ or ancillary parking uses ( ex. loading zone, handicapped parking, taxi
Parties),

zone)

reasonably. approved
Agreement.,

and

by

the

City,

and this provision shall survive termination of this

Simultaneously with the conveyance by Developer to City of the City Spaces, Developer
City will execute and record a restrictive covenant upon the Lands ( or shall include

appropriate

provisions

in

the

Declaration)

which

is

consistent

with

the

provisions

of

Section 15. 2.

Except as provided above in respect of the Conditions, the Alley shall not revert and
be reconveyed, and the Transit Facility Dedication Area shall be dedicated and
payment therefor be made by the City, even if this Agreement is terminated pursuant to
shall not

Section 2. 11 or 2. 12 prior to Commencement of Construction or pursuant to any other

provision of this..Development Agreement, and these obligations shall survive termination.

The foregoing shall not be construed as allowing termination under Sections 2. 11 or 2. 12

after Commencement of Construction, which is expressly not contemplated or permitted.
The foregoing is merely intended to confirm that, if the Conditions are satisfied, the Alley
does not revert, regardless of what else happens under the Development Agreement, either
before or after the Commencement of Construction.
v)

Good and marketable title to the City Spaces and the other Transit

Elements ( excluding the Transit Facility Dedication Area) shall be conveyed to the City upon
recording of the Declaration promptly following Substantial Completion, which conveyance
shall

be

Spaces

subject

and such

hereto.

only to the Permitted Exceptions. The

Transit Elements shall be substantially

form of the deed conveying the City

as set

forth

on

Exhibit 66G"

attached

The Parties agree that the City Supermarket Spaces, the City Non-Supermarket Spaces

and such other Transit Elements shall each be separate condominium units created pursuant to a

Declaration prepared by Developer and approved by City, which approval shall not unreasonably
be

withheld.

form

The Declaration shall be effective to convert the entire Project to the condominium

with Developer retaining title to all condominium units other than those
conveyed to the City.
of

ownership,

33)
MIAMI 699472. 17 7198217084
5/ 20/ 05 2: 13 PM

The management and operation of the Transit Facility and certain

matters pertaining to the relationship by and between the Parties shall be governed by the
vi)

Declaration.

Section 6.3

Fees.

City Permit Fees. Developer assumes payment responsibility for any and

a)

all Permits now or hereafter required to be obtained from the City( in its governmental capacity)

for

the

construction

Project,

the

of

include,

which

without

limitation,

building

permit

applications, inspection, certification, impact and connection fees, fees that the City may levy by
Works Department ( including, without limitation, water and sewer fees)

through its Public

or

and those fees, to the extent applicable, listed in the City of Miami Beach,Building Department

Fee Schedule,

as amended

through September 16, 1992

by Ordinance

Number 92- 2796, or the

most current edition adopted by the City, which fee schedule is hereby incorporated by reference
and made a part of

this Agreement ( collectively, the Fees).

Developer shall remain responsible

for payment of the Fees notwithstanding any and all modifications or changes in price structure
as imposed by the City or any other Governmental Authority authorized to impose such Fees.
b)

Non- City Permit Fees.

Developer shall assume responsibility for payment

of all fees charged by all other Governmental Authorities relating to the Project.
c)'

Declaration Costs.

The Parties acknowledge being aware that there are

certain costs associated with the establishment of a condominium that do not exist in connection
with

the establishment of air rights estates.

City and Developer shall be equally responsible for

the following costs associated with the condominium structure of the transaction contemplated
by

this Agreement: ( i) the legal fees and costs

invoiced by

Greenberg Traurig ( or

another firm

mutually acceptable to both Parties, in the event Greenberg Traurig is unable to commit to the
timely

preparation

documents (
redrafting),

City

shall pay

its half

promptly

accompanied

Declaration.
or

condominium

be

documents) for

approximately $ 30,000,

preparation

the

of

minimal

assuming

condominium

negotiation

and

City's

reimburse

by

to

its half

Greenberg Traurig ( or

within

portion of

firm) simultaneously with

invoice ( if City fails to do so,

such other

of receipt of an

Greenberg Traurig' s ( or such other firm's) invoice and City

Developer)

reasonable

30 days
and (

substantiating

ii)

within

30

days

documentation),

of

the

receipt

costs

of

of

an

invoice

recording

the

Notwithstanding the foregoing, City agrees that Developer is entitled to a credit

City

promptly

directly

payment of

Developer may pay

from the

to

which firm the Parties have agreed. to engage to draft the condominium documents;

Developer's
will

the

of

estimated

for $45, 000 ( the " Credit"),

reimburse

and City shall pay Developer's share of the foregoing

Developer therefor) up to the full

amount of

the

Credit.

With respect to

the issue of extended construction warranties which are required under Section 718.203 of the
Condominium Act, the Declaration

addresses the

treatment

of same

in Section 4( e)( iii).

At

Developer's sole option, to be exercised at any time prior to the Construction Commencement

Date, Developer may elect to require City to pay to Developer City's pro rata share( based on the
number of

City Spaces in

relation to the

total number of

City Spaces

and

Developer Spaces)

of

the incremental increase in cost payable by Developer to obtain from the general contractor
and/ or subcontractors and suppliers, the extended warranties required by Section 718.203 of the
Condominium Act, as same may be amended:
If Developer so elects, payment by the City to

Developer shall be made at the time any holdback for Hard Costs is required to be paid by City
34)
MIAMI 699472. 17 7198217084
5/ 20/ 05 2: 13 PM

to Developer

under

Exhibit C

of this

Agreement,

whereupon

the provisions of Section 4( e)( iii) of

the Declaration shall be modified to provide that costs actually incurred by Developer for items

that are covered by the extended warranty during the Extended Warranty.Period, if any, shall be
solely by Developer and shall not be included in Operating Expenses. This provision shall

paid

survive termination of this Agreement.

ARTICLE 7
INSURANCE
Developer

in

the Declaration,

carry or cause to be carried the

insurance required under the Declaration and such other insurance as is required by any
shall,

accordance with

Institutional Lender( or if there is no Institutional Lender, then such insurance as an Institutional

would normally require in connection with construction the Project).
Developer shall

Lender

also carry such other insurance as required by FTA and such other insurance as City shall
require, but City shall be solely responsible for the payment of any incremental
premium increase if such coverages exceed those required by Developer's Institutional Lender,
reasonably

and this obligation shall survive termination.

ARTICLE 8
DAMAGE CONSTRUCTION AND RESTORATION
Section 8. 1

Casualty.

If the Development Site is damaged or destroyed in whole or in part by fire or other

casualty, the provisions of the Declaration applicable to damage or destruction by fire or other
casualty to the Land or Property described under the Declaration or this Agreement shall govern

the rights and obligations of Developer, City and any Recognized Mortgagee.
Section 8. 2

Effect of Casualty on this Agreement.

Except as provided in Section 8. 1 or the Declaration, this Development Agreement shall

not terminate, be forfeited or be affected in any manner, by reason of any damage to, or total or
partial destruction of, or untenantability of the Development Site or any part thereof resulting
from such-damage or destruction.

ARTICLE 9

CONDEMNATION
Section 9. 1.

Taking.

If all or any portion of the Development Site is taken for any public or quasi-public
purpose by any lawful power or authority by the exercise of the right of condemnation or
eminent

domain

or

by

agreement

among Developer,
35)

MIAMI 699472. 17 7198217084

5/ 20/ 05 2: 13 PM

any Recognized Mortgagee and those

authorized to exercise such right, the provisions of the Declaration applicable to such taking of
the

described under the Declaration shall govern the rights and obligations of

Premises

Developer, City and any Recognized Mortgagee hereunder.

Effect of Taking on this Agreement.

Section 9. 2

Except as provided in Section 9. 1 or the Declaration, this Development Agreement shall

forfeited or be affected in any manner, by reason of any taking of the
Development Site or any part thereof.
not

terminate, be

ARTICLE 10

RIGHTS OF RECOGNIZED MORTGAGEE

Notice and Right to Cure Developer' s Defaults.

Section 10. 1

a)

City shall give to any Recognized Mortgagee a copy of each notice of

Default at the same time as it gives notice of such Default to Developer, and no such notice of

Default shall be deemed effective with respect to any Recognized Mortgagee unless and until a
copy thereof shall have been so received by or refused by such Recognized Mortgagee. All
such notices to a Recognized Mortgagee shall be sent as set forth herein. City shall also give
the Recognized Mortgagee notice (" Notice of Failure to Cure')
cure a

Default

following

the

within

the

period,

in the event Developer fails to

if any, provided in this Agreement for such cure, promptly

expiration of such period(

i. e.,

an"

Event of Default").

b) The Recognized Mortgagee

shall

have

period

of

ten ( 10)

days as to

monetary defaults and thirty( 30) days as to non monetary defaults after receipt of the Notice of
Failure to Cure to( 1) cure the Event of Default referred to in the Notice of Failure to Cure or( 2)

it to be

cause

Developer

cured,

pursuant

subject in either case to the same additional time periods provided to

to the

provisions of

Section 17. 1 ( a) unless such default is excused because

by a Recognized Mortgagee ( ex., defaults stated in

Section 17. 1 ( b), ( c), ( d), and ( e)). Nothing contained herein shall be construed as imposing any
obligation upon any Mortgagee to so perform or comply on behalf of Developer.
it is

not

susceptible of

c).

being

cured

City shall accept performance by a Recognized Mortgagee of any covenant,

condition or agreement on Developer' s part to be performed hereunder with the same force and

effect as though performed by Developer.

Notwithstanding the foregoing provisions of this Section 10. 1, if a
Mortgagee fails ( for any reason) to cure any Event of Default by Developer within
d)

Recognized

to monetary defaults or thirty ( 30) days as to non-monetary defaults following

Notice of Failure to Cure ( as extended or excused as herein above provided), then

ten ( 10). days- as

receipt

of the

City may, but shall be under no obligation to, perform the obligation of Developer the breach of
which gave rise to such Event of Default (including, without limitation, the.performance of any
of the obligations of Developer under any Construction Agreement), without waiving or

releasing Developer from its obligations with respect to such Event of Default and without
waiving. any remedies. available to City at law or in equity or under this Agreement. Developer
36)
MIAMI 699472. 17 7198217084
5/ 20/ 05 2: 13 PM

hereby grants City access to the Development Site and assigns to City the Construction
Agreements ( to the extent deemed necessary or desirable by City) in order to perform any such
obligation.

e) If there is

Mortgagee; to the

more

than one Recognized Mortgagee,

only that Recognized

Recognized Mortgagees, whose Mortgage is most

exclusion of all other

senior in lien shall be recognized as having rights under this Article 10, unless such first priority
Recognized Mortgagee has designated in writing to City a Recognized .Mortgagee whose
Mortgage is junior in lien to exercise such right.
f)
Mortgagee

shall

agreement( s)

Notwithstanding

be

anything to the contrary

its

obligated to perform

set

obligations under

forth

above,

the Recognized

Section 2. 6( d) and the related

therein,

and such Recognized Mortgagee and any purchaser at a

foreclosure sale shall be deemed a third party beneficiary of this Agreement and shall.be entitled
to the

referenced

rights of

Facility

Developer hereunder (
including

Contribution

those related to payment of the City's Transit

if it succeeds to the interests of Developer.

and other payments)

ARTICLE 11

NO SUBORDINATION

Neither City' s interest in the Property pursuant to this Agreement, as the same may be
modified, amended or renewed, nor the City Spaces, other Transit Elements or City' s interest in
this Agreement

or

Loan Documents

the Declaration
now

shall

be

subject or subordinate

hereafter existing, ( b)
interest in the Land or
or

affecting Developer' s
Development Agreement

to ( a)

any Mortgage or Other

any other liens or encumbrances hereafter

Property or Developer' s interest in this

any mortgages, liens, encumbrances or Loan Documents now or
hereafter placed on any interest in the Development Site.
or( c)

ARTICLE 12

MAINTENANCE AND REPAIR

Section 12. 1

Maintenance of Development Site.

a)

Maintenance and Repair.

i)

Developer

times ( both

during and after

take good care of, and keep and maintain, the Development Site in good and safe
order and condition, and shall make all repairs reasonably necessary to keep the Development
shall

at

all

construction)

Site in good and safe order and condition.

ii)

Developer

shall not commit,

and shall use all reasonable

efforts to prevent waste, damage or injury to the Development Site and the Project.

37
MIAMI 699472. 17 7198217084
5/ 20/ 05 2: 13 PM

b) Cleaning

of

Development Site.

Developer shall keep clean and free from

rubbish all areas of the Development Site.

c)

Other Areas.

Developer shall promptly rectify any damage or interference

caused by Developer to any property, improvements, equipment, structures or vegetation inside

or outside of the Development Site which is owned or controlled by City.
Developer shall comply with the terms of any

d) Environmental: Brownfields.

further action letter and all other Requirements relating to environmental matters pertaining to
the Development Site.
e)
with respect

Developer shall at all times comply with all Requirements

operation, ownership, maintenance and remediation of the

Requirements.

to the

use, condition,

Development Site and the Project.

fl

Maintenance

of

Development

Site,

Developer

Requirements

FTA

understands and agrees that the federal government, through the funding, provided by the FTA,

if City elects to obtain such funding, retains a federal interest in any real property, equipment
and supplies
extent

financed

with

federal

that, the federal government

assistance (

limited to the Transit Elements) until, and to the

relinquishes

its federal interest. Unless otherwise approved

by FTA, City and Developer agree to comply with the requirements identified in Section 19 of
the FTA Master Agreement with respect to real property, equipment and supplies financed by
the FTA ( limited to the Transit Elements).
Notwithstanding the foregoing or anything else
contained in this Agreement, FTA shall not be entitled to require a change to the business deal

reflected by this Development Agreement (including the business deal related to funding of the
City's Transit Facility Contribution or other payments by the City hereunder, and casualty and
condemnation,

as

reflected

in the Development Agreement

and

the Declaration). Further,

Developer shall not be required to comply with FTA Requirements if such requirements are

more costly to comply with than what is contained in the Project Concept Plan unless City, at its
option, elects to pay for the excess costs ( except that Developer shall comply with Davis Bacon
use reasonable efforts to
and shall, consistent with the City' s FTA approved DBE plan,

Act

comply

with

the DBE

assumed $

9, 500,000

assumed $

9, 500, 000

requirements of

the FTA Master Agreement based

Transit. Facility Contribution ( but in

City'
City' s Transit Facility Contribution)
s

at no

no

event

up to 10%
less than 5%

on

additional

cost

to

of an
of an

City,

and

Developer shall also comply with any other requirements of the FTA Master Agreement at the
City's cost, and further provided,. in respect of all FTA Requirements, they are reasonably
capable of being implemented without unusual delay and without materially changing the
character of the Project).
Subject to the foregoing and any other specific limitations contained
elsewhere in the Agreement, Developer agrees to exert reasonable good faith efforts to assist the
City in meeting the requirements of the FTA ( limited to the Transit Elements). This

subparagraph shall survive expiration of the Term but not any other termination.
Section 12. 2

Waste Disposal.

Developer shall dispose of waste from all areas of the Development Site in accordance
with

the Requirements

and

in

prompt,

sanitary and aesthetically reasonably inoffensive

manner.

38)
MIAMI 699472. 17 7198217084

5/ 20/ 05 2: 13 PM

ARTICLE 13

REQUIREMENTS
Section 13. 1

Requirements.
a)

Obligation to Comply.

In connection with any Construction Work, and with

the maintenance, management, use, construction, ownership and operation of the Development
Site, the Project, and Developer' s performance of its obligations hereunder, Developer shall

comply promptly with all Requirements, without regard to the nature of the work required to be
done.

b). Definition

of

Requirements.

As

used

in this Agreement, " Requirements"

shall mean:

i)
ordinances, charters,

statutes,

any

codes,

and all

laws,

constitutions, rules, regulations, orders,

executive orders and requirements of all Governmental

Authorities having jurisdiction over a Person and/or the Development Site or any street, road,

alley or sidewalk comprising a part of, or lying in front of, the Development Site
including, without limitation, any of the foregoing relating to handicapped access or parking, the

avenue,

Building Code of the City and the laws, rules, regulations, orders, ordinances, statutes, codes and
requirements of any applicable Fire Rating Bureau or other body exercising similar functions).
ii) .

any

conditions

of

the

temporary

and/ or

permanent

certificate or certificates of occupancy issued for the Development Site as then in force;

the requirements of the City of Miami Beach Prevailing

Wage Ordinance, Miami Beach City Code, Section 31A-27, as amended, if applicable;
iv)

any and all provisions and requirements of any property,

casualty or other insurance policy required to be carried by Developer under this Agreement;
v)

any and all provisions and requirements of' that certain

Brownfield Site Rehabilitation Agreement dated December 29, 2000 by and between MiamiDade County and A& R Sobe, LLC; and
vi)

any and all requirements and responsibilities under federal

law, regulation or directive, including, but not limited to, the FTA Requirements identified in the
FTA Master Agreements.

ARTICLE 14

CREATION AND( DISCHARGE OF LIENS

Section 14. 1

Creation of Liens.

39)
MIAMI 699472. 17 7198217084
5/ 20/ 05 2: 13 PM

Developer shall have no power or authority to, and shall not, create, cause to
to exist ( 1) any lien, encumbrance or charge upon City' s rights
under or in respect of this Agreement, the Development Site, the Project, the City Spaces, the
a)

be

created, or suffer or permit

other

Transit. Elements

any part thereof or appurtenance thereto, the Declaration or the

any lien, encumbrance or charge upon any assets of, or funds
3) any other matter or thing whereby City' s interest in the Property or

or

income therefrom, ( 2)

City, or(
any part thereof or appurtenance thereto or any revenues therefrom might be materially
impaired. Notwithstanding the above, Developer shall have the right to execute Mortgages and
other Loan Documents, leases and other instruments ( including, without limitation, equipment
appropriated

to,

leases) encumbering only Developer' s rights under or in respect of this Agreement, the
Development Site or any part thereof or appurtenances thereto. Further, until the Declaration is

filed and the City Spaces and other Transit Elements are conveyed to City, Developer may
encumber the entire Property, subject to obtaining the lender recognition and other agreements
provided for in Section 2. 6( d) of this Development Agreement.
b).

City ( in its

shall not, create, cause to

Developer'

rights

Development Site
charge upon

any

be

under

or

any

this
part

assets of, or

shall

proprietary capacity)

have

no power or

created, or suffer or permit to exist(

Agreement, the Declaration

thereof

funds

or appurtenance

appropriated

i)

or

authority to,

and

any lien, encumbrance upon

the

income therefrom, the

thereto, ( ii) any lien, encumbrance or

to, Developer,

or(

iii) any other matter or thing

whereby Developer' s interest in the Land or Property and any part thereof or appurtenant
thereto might be impaired.
Section 14. 2

Discharge of Liens.

If any mechanic' s, laborer' s, vendor' s, materialman' s or similar statutory lien

is filed against the City' s interest in the Development Site or any part thereof( whether or not
any such lien is valid), or City' s interest in the Land or Property or if any public improvement
lien created, or caused or suffered to be created, by Developer shall be filed against any assets
a)

of, or

the

funds

filing

of

City, Developer

of such mechanic' s,

shall, within

laborer' s,

thirty ( 30) days after Developer receives notice of

vendor'

s,

materialman' s or similar statutory. lien or

public improvement lien, cause it to be discharged of record by payment, deposit, bond, order of
a court of competent jurisdiction or otherwise.
b)

If any mechanic' s, laborer' s, vendor' s, materialman' s or similar statutory lien

is filed against the Developer' s interest in the Development Site or any part thereof or

Developer' s interest in the Land or Property as a result of any action of City( in its proprietary
capacity),

City

mechanic' s,

shall, within

laborer' s,

thirty ( 30)

vendor' s,

days after City receives notice of the filing of such

materialman' s

or

similar

statutory lien,

cause

it to be

discharged of record by payment, deposit, bond, order of a court of competent jurisdiction or

otherwise.

Section 14. 3

No Authority to Contract in Name of City.

Nothing contained in this Article 14 shall be deemed or construed to constitute the

consent or request of City, express or implied, by implication or otherwise, to any contractor,

subcontractor, laborer or materialman for the performance of any labor or the furnishing of any
40)
MIAMI 699472. 17 7198217084
5/ 20/ 05 2: 13 PM

materials for any. specific. improvement of, alteration to, or repair of, the Development Site or
any part thereof, nor as giving Developer any right, power or authority to contract for, or permit
the rendering of, any services or the furnishing of materials that would give rise to the filing of
any lien, mortgage or other encumbrance against City' s interest in the Property or any part
thereof or against any. assets of City. Notice is hereby given, and Developer. shall cause all
Construction Agreements to provide, that to the extent enforceable under Florida law, City shall
not be liable for any work performed or to be performed at the Development Site or any part
thereof for Developer or for any-subtenant or for any materials furnished or to be furnished to the
Development Site or any part thereof for any of the foregoing, and no. mechanic' s, laborer' s,
vendor' s, materialman' s or other similar statutory lien for such work or materials shall attach to
or affect City' s interest in the Property or any part thereof or any assets of City.
ARTICLE 15

PUBLIC PURPOSE
Section 15. 1
of

City

acknowledges that public

benefits

will result

from the' Parties'

this Development Agreement (" Public Purpose" or " Public Benefits').

performance

Such Public Benefits

include but are not limited to the environmental remediation and redevelopment of the

Brownfield Area pursuant to the City of Miami Beach Brownfield Resolution No. 2000-23963;
revitalizing the area surrounding the Project to create a commercially viable commercial corridor
between Alton Road

Ocean Drive along Fifth Street; providing a grocery store to the

growing neighboring residential community; providing a parking garage; beautification to the
City of Miami Beach' s " Gateway Property," and preservation of the historical character of the
area/
building located at the corner of Fifth Street and Lenox Avenue; creation of the Transit
Elements component of the Project, and the creation of jobs for the City of Miami Beach
and

community.
Section 15.2

In furtherance of the foregoing, Developer covenants and agrees to include as an

initial occupant of the Retail Space a national or regional grocery store chain which shall initially
open

for the

Grocery

operation of a

Lease")

having

grocery

a minimum

supermarket.

Developer shall enter into a binding lease

term of ten(

10) years for not less than 40,000 square feet

of Retail Area with a national or regional grocery supermarket which will unconditionally
subject to customary contingencies for Substantial Completion and performance by Developer
its

Grocery Lease) obligate the tenant to initially open for

business as a grocery supermarket in the entire leased premises upon Completion of the Project.
The Lease shall grant Developer the right to recapture the leased premises if the tenant ceases to
of

construction. obligations under the

operate a grocery supermarket from the entire leased premises during the lease term, other than
temporarily for remodeling, reconstruction after casualty or condemnation, transfer of.operations
in the

case of an assignment or

subletting to another

operator or

Unavoidable. Delays.

If the

tenant fails to open for business, or, after opening, ceases to operate a grocery supermarket from
the entire leased premises (

for other than a permitted reason listed above in this Section 15. 2),
Developer shall use diligent and good faith efforts to enter into a new lease with another national
grocery supermarket for the
Replacement Lease").

or

regional

same

leased

premises

and

for the

same

use ( a

If Developer is unsuccessful in entering into a Replacement Lease,

Developer

shall at

its

option either ( A)

pay to the
41)

MIAMI 699472: 17 7198217084

5/ 20/ 05 2: 13 PM

City $55. 00 per City Supermarket Space per

month( which amount will

as

increase

defined in the Declaration,

by 2. 5% per annum starting at the time that the Contribution,

increasing) for

starts

each month

commencing

when,

and only

during the time that, a replacement non-supermarket user is operating out of the space demised in
the Grocery Lease and continuing through the end of the tenth year from the commencement of
Grocery Lease ( but any payments
if Developer subsequently
Developer
to

the lease term for. the

fully

refunded

under

this subparagraph ( A) shall be

exercises

option (

B) below)

or (

B)

purchase from City the City Supermarket Spaces pursuant to the closing procedure set forth in
Developer's right of first refusal paragraph 9 of the Declaration for a price equal to City's Transit

Facility Contribution allocable to such spaces together with interest thereon at the Interest Rate,
as

hereinafter defined, for the

period

commencing

on

the date

payments under (

A)

above are

provided to:commence.and continuing until the end of the tenth year from the commencement of
the lease term for the Grocery Lease.
From and after the date of conveyance of the City
Supermarket Spaces to Developer,

the percentages utilized for purposes of calculating the

relative contributions of the City and Developer in respect of Operating Expenses and Revenue
under

the

Declaration

conveyance.

shall

be

The " Interest Rate"

adjusted

proportionately,

effective

as

of

the

date of the

shall be the average yield on an annualized basis generated by

investments- actually made by the City in accordance with the City's Investment Policy and
to assure the preservation of principal, a copy of which has been furnished
to Developer) during the period of time commencing on the commencement date of the term of
the Grocery Lease and ending when Developer' s option under this sentence is triggered.
Any
Procedure ( designed

payments under(

A)

above, and

interest

under(

B) above, shall cease at the end of the tenth year

Grocery Lease. For purposes of this provision,

if there is a condemnation, the first spaces taken shall be deemed to be City Supermarket Spaces.
Further, if Developer is unsuccessful in entering into a Replacement Lease and if City and
Developer, each acting in their own discretion, are unable to reach agreement as to an alternate
use for the space, City shall at its option then be entitled to attempt to locate another tenant
having either ( X). an operating history and credit that are no less beneficial than the tenant ( and
any guarantors) under the Grocery Lease or ( Y) a credit rating of not less than Standard and
Poors A) who shall use the leased premises for family oriented retail/ commercial uses that are no
more parking intensive than grocery store use and do not violate any then existing exclusive or
prohibited uses granted to other occupants of the Property and who shall-pay the same base rent
and pass- thrus as specified in the Grocery Lease for the same
remaining term ( or for a
from the

commencement of

the lease term for the

commercially reasonably longer term, not to exceed the aggregate number of years in the initial
and

potential .renewal

terms

of

the

Grocery

Lease, with commercially reasonable periodic

increases in rent that are comparable to those provided for in the Grocery Lease) and who shall
be entitled to the same options, rights, signage rights and benefits, and have the same obligations,
burdens and responsibilities ( other than those relating to use of the space as a grocery
supermarket).

If City does in fact locate another tenant, Developer shall thereupon recapture the

Grocery Lease from the existing tenant and enter into a direct lease with the tenant identified by
City at the:.same base rent and pass- thrus ( but percentage rent shall not be required, and the
tenant shall be required to pay 100% of the taxes allocable to the City Supermarket Spaces, to the
extent Developer is obligated to pay or reimburse the City in respect of same) as specified in the
Grocery Lease ( and containing such other terms as are consistent with the Grocery Lease and
otherwise customarily required for leases of similar space to similar tenants and otherwise
consistent with the.provisions of this Paragraph, without, however, an increase in any obligations
or other economic changes that are adverse to

Developer

42)
MIAMI 699472. 17 7198217084
5/ 20/ 05 2: 13 PM

or

the tenant).

Specific consideration

for the foregoing includes without limitation, vacation and conveyance by the City to Developer
of

the

Alley

as provided

other agreements

Section 15. 2

shall

set

in Section 6. 2. 1 ( iv)

of this Development Agreement and the City' s

forth in this Development Agreement.

become

null and void and of

The .provisions set forth in this

no further force or effect 10 years from the

commencement of the lease term for the Grocery Lease.

Section 15. 3

Developer

represents

that

the

intended

initial

use

of

the

Project

is

retail/commercial/parking and that initially office use will only be an incidental purpose.
Nothing contained herein, however, shall prevent Developer from using the Project for any
lawful purposes which comply with all Requirements, except, however, for the provisions of this
Article 15 with respect to the Grocery Lease and subsequent use of the space included in the
Grocery Lease.
ARTICLE 16

RIGHT TO PERFORM THE OTHER PARTY' S COVENANTS

Right to Perform Other Party' s Obligation.

Section 16. 1

If an Event of Default shall occur, and subject to any limitations contained

of Recognized Mortgagees) City
may, but shall be under no obligation to, perform the obligations of Developer the breach of
which gave rise.to such Event of Default, without waiving or releasing Developer from any of
its obligations contained herein, provided that City shall exercise such right only in the event of
a bona fide emergency or after five ( 5) Business Days notice, and Developer hereby grants City
access to the Development Site in order to perform any such obligation. Notwithstanding the
foregoing, City shall not be entitled to perform any such obligations if a Recognized Mortgagee
promptly commences and thereafter diligently pursues reasonable steps in good faith to do so,
and City shall not interfere with such rights of a Recognized Mortgagee to do so.
a)

in this Agreement ( including those for the benefit

elsewhere

b)
beyond any
perform

the

proprietary
releasing

If a default by City under this Agreement shall, occur and be continuing

applicable
obligations

obligations)

grace
of

Developer may, but shall be under no obligation to,

other than those which are governmental as opposed to

period,

City (

the breach of which gave

rise

to such default, without waiving or

City from

any of its obligations contained herein, provided that Developer shall

only in the event of a bona fide emergency ( threat of imminent injury to
property) or after five( 5) Business Days notice to City.

exercise such right

persons or

Section 16. 2

Discharge of Liens.
a).

If

Developer

materialman' s or similar

fails

to

cause

statutory lien ( including

any

mechanic' s,

laborer' s,

vendor' s,

tax liens, provided the underlying tax is an

obligation of Developer) to be discharged of record in accordance with the provisions of Article

14, City may, but shall not be obligated to, discharge such lien of record either by paying the
amount claimed to be due or by procuring the discharge of such lien by deposit or by bonding
proceedings.

43)
MIAMI 699472. 17 7198217084
5/ 20/ 05 2: 13 PM

b.) If

fails to

City

cause

any

mechanic' s,

laborer' s,

vendor' s, materialman' s or

similar statutory lien (including, tax liens, provided the underlying tax is an obligation of City)
to be discharged of record in accordance with the provisions of Article 14, Developer may, but
shall not be obligated to, discharge such lien of record either by paying the amount claimed to

be due or by procuring the discharge of such lien by deposit or by bonding proceedings.

Section 16. 3

Reimbursement for Amounts Paid Pursuant to this Article.

Any reasonable amount paid by either Party in performing the obligations of the other
including all costs and expenses incurred in connection
therewith, shall be reimbursed to the Party incurring same within thirty( 30) days of demand.

party

as provided

Section 16. 4

in this Article 16,

Waiver, Release-and Assuml2tion of Obligations.

a)

City' s payment or performance pursuant to the provisions of this Article 16

shall not be, nor be deemed to constitute, City' s assumption of Developer' s obligations to pay
or perform any of Developer' s past, present or future obligations hereunder.
b) Developer' s payment or performance pursuant to the provisions of this
Article

16

shall

not

be,

nor

be deemed to

constitute,

Developer' s assumption of City' s

obligations to pay or perform any of City' s past, present or future obligations hereunder.
ARTICLE 17
EVENTS OF DEFAULT,

CONDITIONAL LIMITATIONS, REMEDIES, ETC.

Section 17. 1

Definition.

Each of the following events shall be an Event of Default by Developer hereunder:

a)

If Developer shall default in the observance or performance of any term,

covenant or condition of this Agreement on Developer' s part to be observed or performed and,

if no cure period is expressly provided for herein, Developer shall fail to remedy such Default
within ten( 10) days as to monetary default or thirty( 30) days as to non-monetary defaults after
notice by City ( the Default Notice), or if such a Default is of such a nature that it cannot
reasonably be remedied within thirty( 30) days ( but is otherwise susceptible to cure), Developer
shall ( i) within thirty ( 30) days after the giving of such Default Notice, advise City of
Developer' s intention to institute

all

steps

necessary (

and

from time to time, as reasonably

requested by City, Developer shall advise City of the steps being taken) to remedy such default
which such steps shall be reasonably designed to effectuate the cure of such Default in a
ii)

thereafter diligently prosecute to completion all such steps

necessary to remedy the same; or
professional

manner),

and (

b) to the

extent permitted

by

law, if Developer

generally unable to pay its debts as such become due; or

44)
MIAMI 699472. 17. 719 8217084
5/ 20/ 05 2: 13 PM

admits,

in writing, that it is

c) to the extent permitted

by law, if Developer makes an assignment for the

benefit of creditors; or

d)

to the extent permitted by law, if Developer files a voluntary petition under

Title 11 of the United States Bankruptcy Code, or if Developer files a petition or an answer
seeking, consenting to

acquiescing in, any

or

reorganization,

arrangement,

composition,

readjustment, liquidation, dissolution or similar relief under the present or any future Federal
bankruptcy code or any other present or future applicable Federal, state or other bankruptcy or
insolvency statute or law, or seeks, consents to, acquiesces in or suffers the appointment of any
trustee,

receiver,

custodian,

assignee,

sequestrator,

liquidator

or

other

similar

official

of

Developer, of all or any. substantial part of its properties, or of all or any part of Developer' s
interest in- the. Land or Property, and the foregoing are not stayed or dismissed within one
hundred fifty( 150) days after such filing or other action; or
by law, if, within one hundred fifty ( 150) days after
the commencement of a proceeding against Developer seeking any reorganization, arrangement,
e)

to the extent

permitted

liquidation,

dissolution or similar relief under the present or any

future Federal bankruptcy code or any other present or future applicable Federal, state or other
bankruptcy or insolvency statute or law, such proceeding has not been dismissed, or if, within
one hundred fifty ( 150) days after the appointment, without the consent or acquiescence of
Developer, of any trustee, receiver, custodian, assignee, sequestrator, liquidator or other similar
composition, readjustment,

official of

Developer,. of

all or

any

substantial part of

its

properties,

or of all or any part of

Developer' s interest in the Land or Property, such appointment has not been vacated or stayed
on appeal or otherwise, or if, within one hundred
fifty ( 150) days after the expiration of any
such stay, such appointment has not been vacated;
f)

if a levy under execution or attachment in an aggregate amount of One

as adjusted for inflation)
at any one time is made
against the Development Site or any part thereof or. rights appertaining thereto and such

Hundred Thousand Dollars ($ 100, 000) (

execution or attachment is not vacated or removed by court order, bonding or otherwise within a
period of sixty( 60) days, subject to Unavoidable Delays after such levy or attachment;
g) Developer' s failure to achieve Substantial Completion on or before the
Completion Deadline;,or

h)

Any voluntary or involuntary assignment of the Developer' s rights hereunder

or if Jeffrey Berkowitz, Alan Potamkin and Robert Potamkin, collectively, shall cease to own a
majority of the membership and beneficial interests and the Controlling Interest in Developer or

shall cease to have control over the Construction of the Project, in either case at any time prior
to Substantial Completion of the Project.

City' s notice to Developer shall state with specificity the provision of this Agreement

under which the Default is claimed, the nature and character of such Default, the facts giving rise
to such Default, the date by which such Default must be cured pursuant to this Agreement, if

applicable, and, if applicable, that the failure of Developer to cure such Default by the date set
forth in such notice will result in City having the right to terminate this Agreement. With respect
only to Development Disputes,

City' s allegation of a Default shall be subject to expedited

45)

MIAMI 699472. 17 7198217084

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in

arbitration

accordance with

the

provisions of

Article 19,

or within

ten(

10) Business Days after

receipt of City' s notice if no such grace period is provided therein.

Notwithstanding the foregoing, no Event of Default shall be deemed to have occurred

until such time as City shall have given Developer notice of the occurrence of a Default;
provided, however, if Developer shall dispute, in accordance with the provisions of Article 19,
City' s

assertion

that a Default

which

is

Development Dispute has

occurred within

ten ( 10)

after the giving of such notice by City, an Event of Default as to any such
Development dispute shall not be deemed to have occurred and City shall not be permitted to

Business Days

exercise any,rights against Developer stated herein to arise out of an Event of Default until such
time as the Development Arbitrator has determined that an Event of Default has occurred.

Developer agrees to make a good faith, effort to notify City of any Unavoidable Delays

affecting performance by Developer of its obligations under this Agreement and the estimated
delay to result therefrom.
Section 17. 2

Enforcement of Performance; Damages and Termination.

If an Event of Default occurs, City may elect to( a) enforce performance or observance by
Developer

of

the

this Agreement,

applicable provisions of

with

or

without

this Agreement

this Agreement,

terminating

law, in equity

or ( b)

recover damages for breach of

and/ or ( c)

exercise any other

this Agreement.

City' s election of a remedy

hereunder with respect to an Event of Default shall not limit or otherwise affect City' s right to
elect an Y of the remedies available to City
to any
sP
Y hereunder or at law or in a quifiY with respect
Event of Default.
other
Anything in the Development Agreement to the contrary
remedies

available

notwithstanding, ( i)

at

or under

City shall not be entitled to perform any obligations of Developer if a

Recognized Mortgagee promptly commences and thereafter diligently pursues reasonable steps
to in good faith do so, and City shall not interfere with a Recognized Mortgagee's rights to do so
and ( ii)

any recovery by City of damages under this Development Agreement shall be limited to
the amount of. the City's Transit Facility Contribution actually paid by City to Developer,
together

with

interest thereon

at

the lesser

of ( A)

the average yield on an annualized basis

generated by investments actually made by the City in accordance with the City's Investment
Policy and Procedure ( designed to assure the preservation of principal, a copy of which has been
furnished to Developer)

during

the like period of time or( B)

simple

interest

at

the rate of 4% per

annum, in each case from the date of disbursement until the date repaid, and upon receipt of such

City shall relinquish all interests in the Project to Developer or its designee and this
Agreement shall terminate; provided, however, that the foregoing limitation on the City's right to
recover damages shall not apply with respect to any of Developer's indemnification obligations
hereunder, including without limitation the indemnification contained in Section 21. 1. Nothing
contained in the Agreement shall preclude City from pursuing specific performance of
sum,

Developer's obligations under this Agreement, but the right to specific performance by the City
is subject to Developer's exercise of any termination right granted in this Agreement.
Section 17.3

Strict Performance.

No failure by City or Developer to insist upon strict performance of any covenant,

agreement, term or condition of this Agreement or to exercise any right or remedy available to
46)
MIAMI 699472. 17 7198217084

5/ 20/ 05 2: 13 PM

such party by reason of the other Party' s Default or an Event of Default, shall constitute a waiver
of any such Default or Event of Default or of such covenant, agreement, term or condition or of
any

other covenant, agreement,

term or

condition.

No covenant, agreement, term or condition of

this Agreement to be performed or complied with by either Party, and no Default by either Party,
shall be waived, altered or modified except by a written instrument executed by the other Party.

No waiver of any Default or Event of Default shall affect or alter this Agreement, but each and
every covenant, agreement, term and condition of this Agreement shall continue in full force and
to any

effect with respect

other

then existing

or subsequent

Default.

Developer' s compliance

with any request or demand made by City shall not be deemed a waiver of Developer' s right to
contest

the validity

of such request or

demand.

This provision shall survive termination of this

Agreement.
Section 1.7.4

Riebt to Enioin Defaults.

With respect to Development Disputes and all other disputes, in the event of Developer' s

Default or an Event of Default, City shall be entitled to seek to enjoin the Default or Event of
Default and shall have the right to invoke any rights and remedies allowed at law or in equity or

by statute or otherwise, except to the extent City' s remedies are expressly limited by the terms
hereof. With respect to Development Disputes and all other disputes, in the event of any default

by City of any term, covenant or condition under this Agreement, Developer shall be entitled to
seek to enjoin the default and shall have the right to invoke any rights and remedies allowed at
law or in equity or by statute or otherwise, except to the extent Developer' s remedies are
expressly limited by the terms hereof. Each right and remedy of City and Developer provided

for in this Agreement shall be cumulative and shall be in addition to every other right or remedy
for in this Agreement or now or hereafter existing at law or in equity or by statute or
otherwise, except to the extent City' s remedies or Developer' s remedies are expressly limited by
the terms hereof, and the exercise or beginning of the exercise by City or Developer of any one
or more of the rights or remedies provided for in this Agreement or now or hereafter existing at
law or in equity or by.statute or otherwise shall not preclude the simultaneous or later exercise by
City or Developer of any or all other rights or remedies provided for in this Agreement or now or

provided

law

in equity,

except to the extent City' s remedies and Developer' s

remedies are expressly limited by the terms hereof.
hereafter existing

Section 17. 5

at

or

Remedies under Bankruiptcy and Insolvency Codes.

If an order for relief is entered or if any stay of proceeding or other act becomes effective
against Developer, Developer' s interest in the Land or Property, or Developer' s interest in this
Agreement, or City, City' s interest in the Land or Property, or City' s interest in this Agreement,
as applicable, in any proceeding which is commenced by or against Developer or City, as
applicable, under the present or any future Federal Bankruptcy Code or in a proceeding which is
commenced
by or against Developer or City, as applicable, seeking a reorganization,
arrangement, composition, readjustment, liquidation, dissolution or similar relief under any other
present or future. applicable federal, state or other bankruptcy or insolvency statute or law, City
or Developer, as applicable, shall be entitled to invoke any and all rights and remedies available
to it under such bankruptcy or insolvency code, statute or law or this Agreement ( except to the
extent City' s remedies and Developer' s remedies are expressly limited by the terms hereof).
47)
MIAMI 699472. 17 7198217084

5/ 20/ 05 2: 13 PM

Section 17. 6

Inspection.

Without in any way limiting Article 4, City and its representatives shall have the right to
enter upon the.Development Site to conduct inspections for the purpose of determining whether a
Default or an Event of Default has occurred, provided that City shall be accompanied by a
representative of Developer and provided further that such entry shall not unreasonably interfere
with the Construction of the Project and shall be at City' s sole risk. Developer agrees to make a
representative of Developer available to accompany City on any such inspection.
Section 17. 7

City' s Default.

In the event of any default by City hereunder, Developer shall give City written notice
specifying such default and City agrees to promptly commence the curing of such default and to
cure such default within ten ( 10) days after receipt of notice in the case of payment of money or
thirty( 30) days after receipt of notice as to other defaults; provided, however, that if such default
cannot reasonably be cured within said thirty .(30) day period, then City shall cure any such
default as diligently as reasonably practicable under the circumstances and shall have a

reasonable period of time within which to cure such default so long as City is so proceeding. If
City fails to cure any default during the applicable curative period, Developer, at any time after
the expiration of such curative period, shall have the right to exercise any remedy provided in
this Agreement or available to Developer at law or in equity. City agrees to make a good faith
effort to notify Developer of any Unavoidable Delays affecting the performance by City of its
obligations under this Agreement and the estimated delay to result therefrom.

Developer' s notice to City shall state with specificity the provision of this Agreement
under which the City' s default is claimed, the nature and character of such City' s default, the
facts giving rise to such City' s default, the date by which such City' s default must be cured
pursuant.to this Agreement; if applicable, and, if applicable, that the failure of City to cure such
City' s default by the date set forth in such notice will result in Developer having the right to
terminate this Agreement or exercise any other remedies specified by Developer. With respect
only to Development Disputes, Developer' s allegation of a City default shall be subject to
expedited arbitration in accordance with the provisions of Article 19, or within ten( 10) Business
Days after receipt of Developer' s notice if no such grace period is provided therein.

Notwithstanding

foregoing, Developer may not exercise its remedies for a City

default until such time as Developer shall have given City notice of the. occurrence of same;
the

however, if City shall dispute, in accordance with the provisions of Article 19,
Developer' s assertion that a City default which is a Development Dispute has occurred within
provided,

ten ( 10)

Business Days after the giving of such notice by Developer, Developer shall not be

permitted to exercise any rights against City stated herein to arise out of a City default until such

time as the Development Arbitrator or a court, if applicable, has determined that a City default
has occurred.

Anything in this Development Agreement to the contrary notwithstanding, City shall not
withhold any payments that are payable under this Development Agreement because of any

alleged default by Developer under this Agreement (provided that City shall not be obligated to
fund except as provided for in this Agreement, which specifies documentation to be furnished to
48)
MIAMI 699472..17 7.198217084
5/ 20/ 05 2: 13 PM

City

and

funding by the City and Developer's construction lender of draw

simultaneous

requests). .,

Any such

payments shall,

however, be

made with

full

reservation of rights.

This

provision is included in recognition of the fact that the City and Developer's construction lender

will be funding construction of the Project pari passu and any withholding of funds by the City
could adversely impact Developer's ability to obtain funding from its construction lender.
ARTICLE 18

NOTICES, CONSENTS AND APPROVALS

Section 18. 1

Service of Notices and Other Communications.

a) In Writing.

Whenever it is

herein that

provided

notice,

demand,

request,

consent, approval or other communication shall or may be given to, or served upon, either of the
by the other( or any Recognized Mortgagee), or whenever either of the parties desires to

parties

give

or

serve

upon

the

other

any

hereto

communication with respect

notice,

or

demand,

request,

consent,

approval

to the Development Site, each such notice,

or

other

demand,

request, consent, approval or other communication (referred to in this Section 18. 1 as a Notice)
shall be in writing ( whether or not. so indicated elsewhere in
this Agreement) and shall be

effective for any purpose only if given or served by( i) certified or registered U.S. Mail, postage
prepaid, return receipt requested, (
national

courier service

or (

ii)

personal

iv) facsimile

delivery

or e- mail (

with a signed receipt, ( iii),a recognized

provided a confirmation page shall be

generated) addressed or delivered as follows:

If to Developer:AR& J Sobe, LLC

c/ o Berkowitz Development
2665 South Bayshore Drive
Suite 1200

Coconut Grove, Florida 33133

Attention: Jeffrey L. Berkowitz

With a copy to:

Wayne Pathman, Esq.

Pathman Lewis, LLP

One Biscayne Tower, Suite 2400

Two South Biscayne Blvd.
Miami, Florida 33131

If to City:
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
Attention: City Manager
49)
MIAMI 699472. 17 7198217084
5/ 20/ 05 2: 13 PM

With a copy to:

Brian Tague, Esq.

Tew Cardenas LLP

201 South Biscayne Boulevard

Suite 2600, Miami Center
Miami, Florida 33131
Notice may be

Any

in the

given,

manner provided

in this Section 18. 1, (

x)

on either

party' s behalf by its attorneys designated above or otherwise designated by such party by Notice
hereunder,

and (

y)

at

Developer' s

request,

on its behalf by any Recognized Mortgagee

designated in such request.

b) Effectiveness.

Every Notice shall be effective on the date actually received,

as indicated on the receipt therefor or on the date delivery thereof is refused by the recipient
thereof.

c)

References.

All references in this Agreement to the date of Notice shall

mean the effective date, as provided in the preceding Subsection( b).

Section 18. 2

Consents and Approvals.

Effect of Granting or Failure to Grant Approvals or Consents. Except as and

all consents and approvals which may be given under this
Development Agreement shall, as a condition of their effectiveness, be in
writing. The granting
a)

to the extent provided herein,

by a party of any consent to. or approval of any act requiring consent or approval under the
terms of this Development Agreement, or the failure on the part of a party to object to any such
action taken without the required consent or approval, shall not be deemed a waiver by the party
whose consent was required of its right to require such consent or approval for any other act,
except as and to the extent provided herein.
b) Standard.

All consents and. approvals which may be given by a party under

Development Agreement

this

shall

not ( unless

otherwise

specified in this Development

Agreement) be unreasonably withheld or conditioned by such party and shall be given or denied
within

the time period provided, and

reasonable . time.

In furtherance

of

if

the

no

such

time period has been provided, within a

foregoing, in determining whether City has acted

reasonably in: not giving its consent or approval, the trier of fact
for so long as City is the City or any Governmental
Authority)
governed

by

officials.

Upon disapproval

shall,

elected officials or persons

together

of

any

that are appointed,

request

for

a consent or

shall take into consideration

that City is a political body

directly or indirectly, by elected
approval,
the disapproving party

of such disapproval,
submit to the requesting party a written
statement setting forth with specificity its reasons for such disapproval.
with

c)

notice

Deemed Approval.
i)

the

Consenting Party)

If a party entitled to grant or deny its. consent or approval

within

the specified time period shall fail to do so, then, except as

50)
MIAMI 699472. 17 7198217084
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otherwise provided

in Section 18. 2 ( c)( ii) below, and provided that the request for consent or

approval bears the legend set forth below in capital letters and in a type size not less than that
below, the matter for which such consent or approval is requested shall be deemed

provided

consented to or approved, as the case may be:

FAILURE
WITHIN

TO
THE

RESPOND
TIME

SECTION
SECTION]

TO

THIS

PERIOD
FILL

IN

REQUEST

PROVIDED

IN

APPLICABLE

OF THE DEVELOPMENT AGREEMENT

BETWEEN CITY OF MIAMI BEACH, FLORIDA

AR&. T SOBE, LLC SHALL CONSTITUTE
AUTOMATIC APPROVAL OF THE MATTERS
AND

DESCRIBED

HEREIN
WITH
RESPECT
TO
SECTION [ FILL IN APPLICABLE SECTION] OF

SUCH DEVELOPMENT AGREEMENT.

Section 18. 2 ( c)( i) above,

Section 20.2 ( c)( iii)

Notwithstanding anything to the contrary contained in

if the City hereunder and the matter, other than a matter referred to in

below, to be consented to or approved requires the consideration of the City

Commission, as applicable (whether pursuant to Requirements or the written opinion of the City

Attorney), then such matter shall not be deemed approved or consented to unless City shall fail
to respond to Developer' s request by the date which is five ( 5)
Business Days after the meeting

of the City Commission in which the matter in question is decided; but in any event not later than
seventy- five ( 75) days

following

such request( or second request), as applicable.

iii)

The foregoing provisions of this Subsection shall not be

construed to modify or otherwise affect a party' s right to arbitrate or litigate, as applicable, the

failure of a party to act reasonably in granting or denying a request for consent or to timely

respond to a request for a consent, but such right to arbitrate or litigate, as applicable, shall not
serve to delay the time period within which a grant or denial of such request is required
hereunder.
d) Remedy for Refusal to Grant Consent
of

this

Agreement,

or

Approval. If, pursuant to the terms

any consent or approval by City or Developer is alleged to have been

unreasonably withheld, conditioned or delayed, then any dispute as to whether such consent or

approval has been unreasonably withheld, conditioned or delayed shall be settled by arbitration
or

litigation,

as applicable.

approval was
should

unreasonably
have been granted,

In the event there: shall be a final determination that the consent or

withheld,

conditioned or delayed so that the consent or approval

the consent or approval shall be deemed granted and the party

requesting such consent or approval shall be entitled to any and all damages resulting therefrom,
subject to the limitations provided in this Agreement.
e)

No Fees, Etc.

Except as specifically provided herein, no fees or charges of

any kind orapproval

amount shall be required
by either party hereto as a condition of the grant of any
be
consent or
shall not

which may
required under this Agreement (
provided that the foregoing
be deemed in any way to limit
City acting in its governmental, as distinct from its

proprietary, capacity from charging governmental fees on a nondiscriminatory basis).

51)
MIAMI 699472. 17 7198217084
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f) Governmental

Capacity. Notwithstanding anything to the contrary contained

in this Section 18. 2, the City shall not be required by this Development Agreement to give its
consent to any matter arising from or in connection with this Development Agreement when the

City is acting in its governmental capacity.

Section 18. 3

Estoppel Letters.

Each Party shall, from time to time promptly upon request of

the other, furnish to the requesting Party an estoppel letter containing such truthful information
as the requesting Party may reasonably request pertaining to this Agreement or the transaction
contemplated hereby.

ARTICLE 19

ARBITRATIN
Section 19. 1

ExRedited Arbitration of Development Disputes.

If.Developer

a)

shall

asserting party

give

or

City

prompt

that

asserts

written

notice

Development Dispute has

thereof to

the

arisen, such

other party and to the

Development Arbitrator, as hereinafter defined.

b) The Development Arbitrator

hold

receipt of such notice,

attempt

later than two ( 2) Business Days after

shall no

preliminary, informal meeting

to mediate such Development Dispute.

with

City

and Developer in an

If such Development Dispute shall not be

resolved at that meeting, the Development Arbitrator shall at such mediation meeting establish a

date, not earlier than four( 4) Business Days after the mediation hearing nor later than seven( 7)
Business Days

the mediation hearing for a

hearing ( a " Hearing") to be held in accordance
with this Agreement to resolve such Development Dispute.
after

Developer

c)

submission to the

and

City

shall

Development Arbitrator

have the

each

prior

to any

right

Hearing.

to make one ( 1)

written

Such submission shall be

received by the Development Arbitrator and the other party not later than two( 2) Business Days
prior

to the

Hearing Date. The parties

in litigation proceedings)

construed

agree that no

discovery ( as the term is commonly

will be needed and agree that neither party nor the

Development Arbitrator shall have discovery rights in connection with a Development Dispute.
d) Each

Hearing

shall

be

conducted

by

the

Development Arbitrator. It is the

intention of the parties that the Hearings shall be conducted in an informal and expeditious
manner.

No

transcript

or

recording

shall

be

made.

Each party shall have the opportunity to

make a brief statement and to present documentary and other support for its position, which

may include the

outside

experts.

testimony
There

of not more

shall

be

no

than four ( 4)

presumption

individuals, two ( 2) of whom may be

in favor

of either

party' s

position.

Any

procedural matter. not covered herein or mutually agreed upon between the Parties shall be

governed by the Amended 1993 edition of the CPR Rules for the Arbitration of Business
Disputes and the Florida Arbitration Code to the extent not inconsistent with the CPR Rules and

this Section 19. 1.

52)

MIAMI 699472. 17. 7198217084

5/ 20/ 05 2: 13 PM

e)

Arbitrator

in

The Hearings shall be held in a location selected by the Development

Miami- Dade

County,

Florida.

Provided

the

Development

Arbitrator is

accompanied
by representatives of both Developer and City, the Development Arbitrator may,
its option,

at

visit the work site to make an independent review in connection with any

Development Dispute.

fl Once it has been determined by the Development Arbitrator or by agreement

of the parties with respect to any Development Dispute that Developer' s proposed modifications
are

material

with

to,

regard

or

materially inconsistent

with,

the

Preliminary

Plans

and

Specifications or the Plans or Specifications pursuant to Section 3. 1 the Development Arbitrator

shall take into account, in determining whether City has acted unreasonably in failing to grant

an approval

consent as

or

which are not

inconsistent

described in Section 3. 4( b) such factors as he or she deems relevant

with this Agreement (
including items 1 through 6, below), which in

all events shall include the following factors:

1)

City does not have any approval rights with respect

to the matter of interior design and decor of the Retail Space.

2)

The Project shall be a first class facility with a

grocery store and restaurant/office/retail space and Transit Facility at a quality comparable with
the quality set forth in the Preliminary Plans and Specifications.
3).

The mutual goal of Developer and City that Project

Construction Costs overruns shall be minimized.

4)

The mutual goal of Developer and City that the

CConstruction of the Project be commenced as promptly as reasonably possible and completed
within approximately twenty-four( 24) months from Commencement of Construction.
5)

Applicability of any Requirement.

6)

The

magnitude

of

the

modification

to

the

Preliminary Plans and.Specifications or Plans and Specifications, as applicable.

g)

Pending

implement the matter which

resolution

of

the

Development Dispute, Developer may

not

is the subject of such Development Dispute.

h) The Development Arbitrator

not later than two ( 2)

Development Dispute

shall render a

decision, in writing, as to any

Business Days following the conclusion of the

Hearings regarding such Development Dispute and shall provide a brief written basis for its

decision not later.than three( 3) Business Days thereafter.

As to each Development Dispute, the
Develo p ment Arbitrator' s decision shall be limited to ( i)
whether or not Developer' s proposed
modification( s)
pursuant to

the

to the

Preliminary

Section 3. 1 (

Preliminary

Section 3. 1 is
a)

and

Specifications or the Plans or Specifications

Developer' s proposed modification( s) to

Specifications or the Plans or Specifications pursuant to
b), respectively, is
materially inconsistent, ( iii) whether or not City has

Plans

or (

Plans

material, ( ii) whether or not

and

unreasonably
failed totheapprove
or give its consent to any modifications to the Preliminary Plans
Specifications
Plans

or

or

and

Specifications
53)

MIAMI 699472. 17 7198217084

5/ 20/ 05 2: 13 PM

pursuant to

Section 3. 1 (

a) or ( b); and/ or ( iv)

whether or not

Developer

City

or

is

entitled

to' any extension

of

time for performance.

The

Development Arbitrator may not award any other or different relief.

i)

The decision of the Development Arbitrator shall be final and binding on the

parties for all purposes and may be entered in any court of competent jurisdiction.
0)

The Parties

shall cooperate

to select an

independent,

neutral, professional

firm having the. requisite knowledge in retail development and/ or construction experience to
serve as the arbitrator, and who is available to act within the abbreviated time frames set forth
herein( the " Development Arbitrator").
at

this

time

satisfactory

Wetherington ,

to

The Parties agree that each of the following persons are

serve

Development

as

Arbitrator, namely:

Judge

Gerald

Judge J. Kogan, Judge Edward Davis, Judge David Tobin and Mr. John Freud.

City authorizes Developer to designate any one of them to be the Development Arbitrator,
subject

to availability and

material

other

change of circumstances,

but this right to designate

shall not limit the ability of both Parties to jointly designate someone else; provided, however,
that any of said persons that is designated' as a Development Arbitrator may select, subject to

the

reasonable

guidance,

approval

input

of

the

and expertise on

a knowledgeable consultant to provide technical

parties,

the subject matter of the dispute.

has been previously designated to

resolve a

dispute

under

If a Development Arbitrator

this Article 19, such Development

Arbitrator shall be the designated Development Arbitrator for all subsequent disputes unless

both Parties mutually agree to designate a different Development Arbitrator, which they shall do

if there is a material change of circumstances or the prior Development Arbitrator is not

available to act on the abbreviated time
within

two ( 2)

frames

specified

herein. If the Parties cannot agree

business days on the selection of a Development Arbitrator, then any party may

ask the CPR Institute for Dispute Resolution to select a substitute who will act as Development
Arbitrator of that Development Dispute.
k)

The cost of the Development Arbitrator and any consultant selected pursuant
0) above shall be equally shared by the Parties. Each Party shall bear
its costs, including those of its experts and legal fees, associated with the arbitration.
to the proviso set forth in

Section 19. 2

Litigation.

Any dispute between the parties, other than a Development Dispute, shall be subject to

litigation and not arbitration.

ARTICLE 20

NO PERMIT OR WADER OF FEES/APPLICABILITY

OF BROWNFIELD REDEVELOPMENT ACT

This Development Agreement is not and shall not be construed as a Development

Approval,

Building

Permit

or -authorization

to commence

development, nor shall it relieve

Developer of the.obligations to obtain necessary Development Approvals, Building Permits and

other
required permits that are required under applicable law and under and pursuant to the terms
this
of

Development Agreement.

Nothing contained in this Development Agreement shall be

54)

MIAMI 699472. 17 7198217084

5/ 20/ 05 2: 13 PM

deemed to constitute a waiver of any fee, charge or cost imposed by the City in connection with

the issuance of any Development Approval, Building Permit or other permit.

Notwithstanding
the preceding Paragraph. with respect to the waiver of permit or any
fees,

impact

and other

pursuant to

City acknowledges that the Land has been designated as a Brownfield

Miami Beach

City Commission Resolution

No. 2000- 23963,

and

that A&R Sobe,

LLC has entered into a Brownfield Site Rehabilitation Agreement with Miami-Dade County,

Florida.

which

Developer may make application for and diligently pursue maximizing the benefits to

the Project may be entitled as

benefits

by

afforded

program (

including,

the

if

Brownfield

result of

Recovery

Act

the Brownfield
and

any impact,

available, waiver of

any

designation,

other related state,

permit or other

fees

including any

local or federal

or costs).

City shall

cooperate with Developer in connection with the application and any requirements associated
with the foregoing, provided, however, City shall not be required to expend any money or incur

any other liability with respect thereto, and any approvals required by the City associated with
this
Article 20 shall be subject to the prior consideration and approval ofthe City Commission( if
and to the extent
required

by

Commission' s discretion.

law),

which approval, if any is required, shall be given at the City

To the extent that such benefits are available to a municipality or

governmental entity with respect to Brownfields, City agrees to cooperate and utilize reasonable

good faith efforts in making application for and diligently pursuing maximizing the recovery of
such Brownfields
and other benefits; provided, however, City shall not be required to expend any
incur
money
or

liability

other

thereto,

with respect

and any approvals required by the City

associated
with this Article 20 shall be subject to the prior consideration and approval of the City
Commission if and to the
extent
ent re

given at

otherwise entitled to,

extent the

uired

City

is

law),

by

City Commission' s discretion.

the

which approval, if any is required, shall be

Any Brownfield or other such funds that City is

eligible for, receives or can obtain in respect of the Project shall, to the

lawfully

entitled to

do

so,

be paid first to City for the reimbursement of

expenditures or monies associated with this Article 20, then to Developer in addition to City's
Transit Facility Contribution, anything to the contrary contained in this Development Agreement
notwithstanding.
ARTICLE 20A

INVESTIGATIONS. ETC.

with

To the extent required by Requirements, Developer shall cooperate fully and faithfully

any investigation,

audit or inquiry conducted by any Governmental Authority that is

empowered directly or by designation to compel the attendance of witnesses and to examine
witnesses
under oath, or conducted by a Governmental Authority that is a party in interest to the
transaction, submitted
bid,

subject of

the

writing to the

Developer' s

submitted- proposal, contract,

investigation,

City Attorney

officers

or

auditt or
of

the

lease,

permit,

or license that is the

inquiry. In addition, Developer shall promptly report in

City of Miami Beach, Florida any solicitation, of which

directors have knowledge,

of

money,

goods,

requests

for future

employment or other benefit or thing of value, by or on behalf of any employee of City, City or

other Person relating to the procurement or obtaining of this Development Agreement by

Developer or affecting the performance of this Development Agreement.
55)
MIAMI 699472. 17 7198217084
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ARTICLE 21
HAZARDOUS MATERIALS
Section 21. 1

The

General Provision.

provisions of

Paragraph 3 ( e) of Exhibit E attached hereto shall be applicable to this

Agreement.

Notwithstanding the foregoing, City assumes no liability or obligation pursuant to

entered into by and between Developer
and
Miami-Dade County, Florida, for any existing obligations under said Agreement.
Additionally, City.assumes no liability for any environmental contamination associated with the
construction of the Project. The parties to this Agreement acknowledge and agree that City' s
obligation for any environmental contamination shall begin only as to environmental conditions
first arising upon or after completion of the Project. Developer shall be solely responsible for
the Brownfield Site Rehabilitation Agreement(" BSRA')

any environmental conditions existing on the .Land as of the date hereof, and all remediation

thereof, and shall indemnify. and hold City harmless from all liability, damages, losses and costs
including reasonable attorneys' fees and costs at all levels) arising therefrom or relating thereto.
The preceding 3 sentences shall survive termination or expiration of this Agreement.
Section 21. 2

Survival.

The provisions of this Article 21 shall survive the expiration or sooner termination of this
Agreement.

ARTICLE 22

MISCELLANEOUS
Section 22. 1

Governing Law and Exclusive Venue.

This Agreement shall be governed by,,and construed in accordance.with, the laws of the
State of Florida, both substantive and remedial, without regard to principles of conflict of laws.
The exclusive venue for any litigation arising out of this Agreement shall be Miami-Dade

County, Florida, if in state court, and the U.S. District Court, Southern District of Florida, if in
federal court. Federal Court venue shall be available only if exclusive jurisdiction is vested in
the Federal Courts.
The exclusive venue for any expedited arbitration arising out of this
Agreement shall be in Miami-Dade County, Florida.
BY

ENTERING. INTO

THIS

AGREEMENT,

DEVELOPER

AND

OWNER

EXPRESSLY WAIVE ANY RIGHTS EITHER PARTY MAY HAVE TO A TRIAL BY

JURY OF ANY CIVIL. LITIGATION RELATED TO, OR ARISING OUT OF, THIS
AGREEMENT.

Section 22. 2

References.

Captions.

The captions of this Development Agreement are for the purpose

of convenience of reference only, and in no way define, limit or describe the scope or intent of
a)

56)
MIAMI 699472. 17 7198217084
5/ 20/ 05 2: 13 PM

this Development Agreement

when

referring to Articles

or

or

in any way affect this Development Agreement. All captions,

Sections, refer to Articles or Section in this Development

Agreement, unless specified otherwise.

b) Table

of

Contents.

The Table of Contents is for the purpose of convenience

of reference only, and is not to be deemed or construed in any way as part of this Agreement.
City' s Governmental Capacity.

c)

Nothing in this Agreement or in the parties

acts or omissions in connection herewith shall be deemed in any manner to waive, impair, limit
or otherwise affect the authority of the City in the discharge of its police or governmental
power.

d)
terms

Reference to Herein. Hereunder, Etc. All references in this Agreement to the

herein, hereunder

and

words

of

similar

import

shall

refer

this Agreement,

to

as

distinguished from the Paragraph, Section or Article within which such term is located.
e)

Reference to Approval

or

Consent, Etc. All references in this Agreement to

the terms approval, consent and words of similar import shall mean.reasonable written approval
or reasonable written consent except where specifically provided otherwise
Section 22. 3

Entire Agreement. Etc.

a)

attachments

Agreement.

contains

between

understandings

capacity)

Entire

hereto,

all

of

This

Development Agreement,

together

the promises, agreements, conditions,

with

the

inducements and

City ( in its proprietary capacity as opposed to its governmental

and Developer concerning the development and construction of the Project on the

Development

Site

and

there

are

no

promises,

agreements,

conditions,

understandings,

inducements, warranties or representations, oral or written, express or implied, between them

other
than as expressly set forth herein and in such attachments thereto or as may be expressly
contained
in the Declaration

or

any

other

written

agreements

or

instruments

executed

simultaneously herewith by the parties hereto. This Agreement may be executed in counterparts,
each of which shall be deemed an original but all of which together shall represent one
instrument.

b) Waiver. Modification, Etc.

No

covenant, agreement,

term or condition of

this Development Agreement shall be changed, modified, altered, waived or terminated except

by a written
instrument of change, modification, alteration, waiver or termination executed by
Developer.
City

and

every

No waiver of any Default shall affect or alter this Agreement, but each and

covenant,

agreement, term and condition of this Agreement shall continue in full force
and effect with respect to any other then existing or subsequent Default thereof.
c)

Effect

of

Other

Transactions.

No

Mortgage,

whether

executed

simultaneously with this Agreement or otherwise, and whether or not consented to by City, shall

be deemed
to modify this Agreement in any respect, and in the event of an. inconsistency or
between. this Agreement
conflict

and

any

such

instrument, this Agreement

shall control.

Agreement shall not be subject or subordinate to any mortgage or any Loan Documents.
57)
MIAMI 699472. 17 7198217084
5/ 20/ 05 2: 13 PM

This

d) Prevailing Party; Attorneys' Fees.

In the event of litigation concerning this

Agreement, the prevailing party shall be entitled to receive its costs and reasonable attorneys'

fees, at trial and through and including all appeals, from the non-prevailing party.
Section 22. 4

Invaliditv of Certain Provisions.

If any

invalid

and

provision

is, to any

circumstances

of

this

extent,

unenforceable,

Agreement

or

the

application

thereof to

any Person

or

finally determined by a court of competent jurisdiction to be

the remainder

this

of

Agreement, and the application of such

provision to Persons or circumstances other than those as to which it is held invalid and
unenforceable, shall not be affected thereby and each term and provision of this Agreement shall

be valid and enforceable to the fullest extent permitted by law.

Section 22. 5

Remedies Cumulative.

Each right and remedy of either Party provided for in this Agreement shall be cumulative
and shall be in addition to every other right or remedy provided for in this Agreement, or now or
hereafter existing at law or in equity or
limited by the terms of this Agreement),

by

statute or otherwise (

except as otherwise expressly

and the exercise or beginning of the exercise by a Party

of any one or more of the rights or remedies provided for in-this Agreement,.or now or hereafter

existing at law or in equity or by statute or otherwise ( except as otherwise expressly limited by

the terms

of

this

Agreement),

shall not preclude the simultaneous or later exercise by such Party

of any or all other rights or remedies provided for in this Agreement or now or hereafter existing

at law or in equity or by statute or otherwise ( except as otherwise expressly limited by the terms
of this Agreement).
Section 22. 6

Performance at Each Party' s Sole Cost and Expense.

Unless otherwise expressly provided in this Agreement, when either Party exercises any
of its rights, or renders or performs any of its obligations hereunder, such party shall do so at its
sole cost and expense.

Whenever this Agreement provides that a Party shall cooperate or shall

provide information so long as such Party incurs no cost or expense in doing go, such provision
shall mean no third party out-of-pocket costs and shall not include costs of salary or overhead of
such

Party' s

employees.

The preceding sentence, however, shall apply to City only when it is

acting in its proprietary capacity as a Party to this Development Agreement and shall not limit or

restrict City' s ability to impose charges or fees in accordance with its normal and customary

policies when City is acting in its governmental capacity.

Section 22. 7

Time is of the Essence.

Time is

of

the

essence

with

respect

to

all

matters

in,

and

requirements

of,

this

Development Agreement as to both City and Developer including, but not limited to, the times
within which Developer must commence and complete Construction of the Project.
Section 22. 8

Successors and Assigns.

The agreements, terms, covenants and conditions herein shall be binding upon, and inure

to the benefit of, City and Developer, and, except as otherwise provided herein, their respective
58)
MIAMI 699472. 17 7198217084
5/ 20/ 05 2: 13 PM

If, while City' is the City hereunder, the City shall cease to
exist, the City, by its signature hereto, hereby agrees to be bound with respect to all of the terms,
successors and permitted assigns.

covenants and conditions of City hereunder and Developer agrees to recognize the City as City
hereunder.

There can be no assignment by Developer of its rights or obligations hereunder or its

except that Developer may assign all its rights hereunder to a
Recognized Mortgagee as security for the performance of Developer' s obligations under the
Loan Documents ( and such Recognized Mortgagee, its successors or assigns shall be recognized
interest in this Agreement,

and afforded the benefits of this Agreement, including the City's obligation to pay the City's
Transit Facility Contribution, if they take over construction of the Project or acquire the Project
and,

to the extent- contemplated in Section 2. 6( d) above, assume all of Developer's obligations

hereunder).

Any transfer of any membership interests in Developer and any change which
results in management or control of Developer being vested in any person or entity other than
Jeffrey Berkowitz and/or Alan Potamkin and/ or Robert Potamkin shall constitute a violation of
this Agreement and shall constitute an Event of Default
by Developer. There shall be no
assignment by City hereunder, except to another
constituted
governmental entity.
This
duly

Development Agreement shall not be binding on tenants of the Property who occupy same as
tenant only.
Section 22. 9

Notice of Defaults.

Notwithstanding anything to the contrary set forth in this Development Agreement, under
no circumstances shall any party to this Development Agreement lose any right or benefit

granted under this Agreement or suffer any harm as a result of the occurrence of any Default or
default of such party as to which Default or default such party has not received notice thereof
from the other party.
Section 22. 10, No Representations.

City has made no representations herein as to the condition of the Development Site.
Section 22. 11 Nature of Obligations.

It is expressly understood that this Development Agreement and obligations issued

hereunder are solely company obligations, and that no personal
liability will attach to, or is or
shall be incurred by, the incorporators, stockholders, officers, directors,
members, principals,
elected or appointed officials (

including, without limitation, the Mayor and City Commissioner

of the
City) or employees, as such, of City or Developer, or of any successor corporation, or any
them, under
of

or

by

reason

of the

obligations,

covenants or agreements contained in this

Agreement,or implied therefrom, except for Guarantors' obligations under the Guaranty; that any
and all such personal liability, either at common law or in equity or by constitution or statute, of,
and

any
director,
Mayor

and all such rights and claims against,

every

such

incorporator,

members, principals, elected or appointed officials (

stockholder, officer,

including, without limitation, the

City Commissioner of the City) or employee, as such, or under or by reason of the

obligations,
covenants or agreements contained in this Agreement or implied therefrom are
expressly waived and released as a condition of, and as a consideration for, the execution of this
and

Agreement, except to the extent contained in a separate Guaranty or separate instrument.

59)
MIAMI 699472. 17 7198217084
5/ 20/ 05 2: 13 PM

Section 22. 12 Non-liability of Officials and Employees.

No member, official or employee of City shall be personally liable to Developer, or any

in interest,
in the event of any default or breach by City or for any amount or

successor

obligation which may become due to Developer or successor under the terms of this Agreement;

and, any and all such personal liability, either at common law or in equity or by constitution or
statute, of, and any and all such rights and claims against, every such Person, under or by reason
of the obligations, covenants or agreements contained in this Development Agreement or implied
therefrom are expressly waived and released as a condition of, and as a consideration for, the
execution of this Development Agreement.

Section 22. 13 Partnership Disclaimer.

Developer acknowledges, represents and confirms that it is an independent contractor in

the performance of all activities, functions, duties and obligations pursuant to this Development
Agreement.

The parties hereby acknowledge that it is not their intention to create between themselves
partnership, joint venture, tenancy- in- common, joint tenancy,
relationship for the purpose of developing the Project, or for any
a

Accordingly, notwithstanding

any

expressions or provisions

co- ownership

or

agency

other purpose whatsoever.

contained herein,
nothing in this

Agreement, the Declaration or the other documents executed by the Parties with respect to the

Project shall be construed or deemed to create, or to express an intent to create, a partnership,

joint
kind

venture,

tenancy- in- common, joint tenancy, co- ownership or agency relationship of any

or nature whatsoever

between the

parties

hereto. The provisions of this Section 23. 13 shall

survive expiration of this Development Agreement.

Section 22. 14 Time Periods.

Any

time periods in this Agreement

computed

based

designated

as

on

Business Days (

being computed

based

of

less than five ( 5) days shall be deemed to be

regardless of whether any such time period is already

Business Days). In addition, any time period which shall

on

end on a day other than a Business Day shall be deemed to extend to the next Business Day.
Section 22. 15 No Third Party Rights.

Nothing in
Person,

this

Development Agreement,

express

or

implied, shall confer upon any

than the parties hereto and their respective successors and assigns,
any rights or
under or by reason of this Agreement; provided, however,
that a Recognized

other

remedies

Mortgagee
shall be third party beneficiaries hereunder to the extent same are specifically granted
in Section 10. 1
rights

hereof or

elsewhere

in this Agreement. Further, the successor and assigns

of Developer shall be third party beneficiaries hereunder as provided in Section 23. 18.
Section 22. 16 No Conflict.

Developer represents and warrants that, to the best of its actual knowledge, no member,
official or employee of the City has any direct or indirect financial interest in this Development

Agreement nor has participated in any decision relating to this Development Agreement that is
60)
MIAMI 699472. 17 7198217084
5/ 20/ 05 2: 13 PM

prohibited
officer,

law.

by

agent,

Developer

represents and warrants

that, to the best

of.its

knowledge,

no

employee or representative of the City has received any payment or other

for the making

consideration

of

Agreement,

this

directly

or

indirectly, from Developer.

Developer represents and warrants that it has not been paid or given, and will not pay or give,
any third :person any money

for obtaining this Agreement, other than

or other consideration

normal costs of conducting business and costs of professional services such as architects,
engineers,

and

attorneys.

Developer acknowledges that City is relying upon .the foregoing

representations and warranties in entering into this Agreement and would not enter into this
Agreement absent the same.

Section 22. 17 Recording of Develouanent Agreement.

Within 14 days after the Effective Date, City shall record this Agreement with the clerk
of the circuit court

equally

in

and

Developer

by

for Miami- Dade

and

County, Florida. The cost of recording shall be borne

City. A copy of the recorded Development Agreement shall be

submitted by the City to the state land planning agency within 14 days after this Development
Agreement is

recorded.

This Development Agreement shall not be effective until it is properly

recorded
in the public records of said county and until 30 days after having been received by the
state land
planning agency

to

pursuant

Section.

this

The burdens of this Development

Agreement shall be binding upon, and the benefits of this Development Agreement shall inure to,
all successors in interest to the Parties.
Upon termination of this Agreement for any reason,
either Party will/,
within 10 days of written request by the other, deliver to the other a written

confirmation
of termination in recordable form, which may in the case ofthe City be executed by
Manager and

the

City

shall

conclusively

establish of record

the fact of termination, and this

provision shall survive termination.

Section 22. 18 Duration of This Development Agreement.

a)

This Development Agreement

continuation of those provisions

Completion

of the

Project,

hereof

which

shall

terminate ( but

expressly

survive

subject, however, to the

termination) upon Substantial

conveyance of the City Spaces and Transit Elements to City,

dedication of the Transit Facility Dedication Area to the City and payment by City to Developer

of all amounts required to be paid by City to Developer hereunder; provided, however, that the

duration
of this Development Agreement may be extended by mutual agreement of the City and
Developer.
interest

Any payment required to be paid by either party that is not paid when due shall bear

at

ten percent ( 10%)

per annum

from the date due

until paid.

If this Development

Agreement is terminated for any reason at any time prior to Commencement of Construction, in
addition to any other obligations that survive termination that are specified in this Development

Agreement,
Developer shall repay to City any portion of the City' s Transit Facility Contribution
has then been

which
disbursed b
it
y City,
excluding the portion allocated to the Transit Facility
Dedication Area ( and the Transit Facility Dedication Area Finishes)
if it has been conveyed to

City(
of(

and such

A)

property

shall remain

City's

property),

together with interest thereon at the lesser

the
average yield on an annualized
basis generated by investments actually made by the
accordance with the
s

City in

City' Investment Policy

preservation of principal, a

copy

period of time or ( B) simple

interest

disbursement

until

the date repaid.

at

5/ 20/ 05 2: 13 PM

Procedure ( designed to assure the

If termination occurs as a result of an Event of Default by

61)

MIAMI 699472. 17 7198217084

and

has been furnished to Developer)

during the like
the rate of 4% per annum, in each case from the date of

of which

either party, the.party not in default shall also have such remedies as are available at law or in
equity or as specified herein.
b)

During the term of this Development Agreement, the City' s laws and policies
governing the development of land in effect as of the date hereof shall govern development of
the Land. The City may apply subsequently adopted laws and policies to the Project only if the
City has held a public hearing pursuant to Section 1633225, Florida Statutes, and determined:
i)

they are not in conflict with the laws and policies governing this

Development Agreement

and

do

not

prevent

development

of

the land . uses, intensities, or

densities in this Development Agreement; or

ii) they are essential to the public health, safety, or welfare, and expressly

state that they.shall apply to a development that is subject to a development agreement; or

iii)

they are specifically anticipated and provided for in this Development

Agreement; or
iv)

the City demonstrates that substantial changes have occurred in

pertinent conditions existing at the time of approval of Development Agreement; or

this Development Agreement is based on substantially inaccurate

information supplied by Developer.
v)

Section 22. 19 Survival.

Upon

expiration

or

termination

of

this Development

Agreement for any

reason,

the

following provision shall nevertheless survive and remain in full force and effect ( in addition to
any other terms or provisions which specifically state that they shall survive, which shall survive
without

being

Section 5. 3
matters

specifically

as provided

recited

in this Article): the

therein, Sections 17. 2;

provisions of

and

of

this Agreement, excluding

Anything in this Agreement to the contrary notwithstanding, the provisions

that survive termination after Substantial

successors

and ( vi),

17.3, 17.4 and 17. 7 to the extent applicable to

that survive termination, Section 18. 1 and Article 222

Section 22. 18( b).

Sections 2. 8( b)( v)

assigns,

Completion

shall inure to the benefit of the Developer's

whether or not they are permitted assignees under this Agreement.

Further, upon expiration or termination of this Development Agreement for any reason prior to
the conveyance

of

the Transit

Facility

Dedication Area,

the City shall be deemed to have

irrevocably, elected to have exercised its option to acquire the Transit Facility Dedication Area,
and to pay for same and the Transit Facility Dedication Area Finishes, as contemplated by the
Vacation Agreement

and

Vacation Resolution,

which

Vacation Resolution

and

Vacation

Agreement shall survive termination of this Agreement and the Parties shall be bound thereby.
This provision shall survive termination or expiration of this Agreement.

Section 22.20 Imact Fee Paynaent for Additional Parking.

If, at any time from one year following the issuance of the initial certificate of occupancy
for the Improvements through 5 years thereafter, Developer requires additional parking spaces to
satisfy governmental code requirements due to a change in use of the Project to a more parking
62)
MIAMI 699472. 17 7198217084
5/ 20/ 05 2: 13 PM

intensive
right

use(

for

example, conversion of retail space

to

to satisfy such need for additional parking spaces

restaurant use),

by

Developer shall have the

impact fee equal to a

payment of an

flat $ 15, 000. for

each additional space needed( or the equivalent monthly payment, as provided

by current City Code). Thereafter, the Parties shall negotiate in good faith to attempt to arrive at
a mutually satisfactory solution to Developer's parking shortage, failing which Developer (or its
designee) may unilaterally repurchase the number of City Non-Supermarket Spaces needed to
resolve Developer's parking shortage by notice to
City of Developer' s, election to do so. If
Developer so elects, such reconveyance/ conveyance by the City to Developer or its designee

shall be made in exchange for a payment by Developer to City of the full per parking space
amount of the City's Transit Facility Contribution, together with simple interest thereon at the
4% per annum from the date of last disbursement until the date paid. City shall, within

rate of

such reasonable_time frame as Developer shall require in order to enable Developer to put

together its funding for the payment to be made by it, re-convey the applicable City Spaces to
Developer or its designee free and clear of all liens and otherwise subject only to the matters
affecting those spaces at the time of Developer's conveyance of those spaces to City and any
matters created by, joined in, rendered against or requested
by Developer. Upon such reconveyance/ conveyance, City and Developer shall adjust all revenues and expenses collected or
incurred under this Declaration as of the date of the re-conveyance/conveyance, and the fraction
utilized for allocated the prorata share of revenues and expenses of the operations of the Garage
shall

be appropriately adjusted. The payment to be made by Developer to the City under this
be paid in cash at the time of the reconveyance/ conveyance, and Developer shall

paragraph shall

be liable for. payment

be

payable on said

of

any transfer taxes ( documentary

transfer,

if any

are payable.

stamps, surtax or otherwise) that may

The provisions of this Section 22.20 shall survive

termination of this Agreement.

ARTICLE 23

CITY' S RIGHT OF FIRST OFFER

Simultaneously herewith, Developer grants to City a Right of First Offer in the form of
Exhibit " L".

Said right of first offer shall survive termination of this Development Agreement

under the first sentence of Section 22. 18( a) but not otherwise.
i

IN WITNESS WHEREOF, City and Developer intending to be legally bound, have

63)
MIAMI 699472. 17 7198217084
5/ 20/ 05 2: 13 PM

executed this Development Agreement as of the day and year first above written.
WITNESSES:

CI
m

O
'

BEACH, FLORIDA, a
tion of the State of Florida

cip

By:
Pri

ame

S1

Ai

Dermer, Mayor

avi

Print Name

ATTES

111W

d4

&

Prir& rNarne

By:
R@

Print Name

STATE OF FLORIDA

COUNTY OF MIAMI-DADS

20

BE

sjow

The foregoing instrument was acknowledged before

David Dermer, as Mayor, and Robert Parcher, as

by

this

me

City

Clerk

day of
of

the CITY

CH, FLORIDA, a municipal corporation of the State of Florida, on behalf of such municipal

corporation.

They

are

personally known to

me or produced valid

Flo da driver' s licenses as

identification.

KERRY HERNANDQ
MY COMMISSION# DD 175491

N tart'

EXPIRES: May 3, 2007

fill

Bonded Thru Notary Public Underwriters

Type, Print or Stamp Name

My Commission Expires:
Signatures and acknowledgements appear on next two pages]

APPROVED AS TO
FORM& LANGUAGE
FOR EXECUTION

A kl -0,W.-- 4-

MIAMI 699472. 17 7198217084

5/ 20/ 05 2: 13 PM

'-

WITNESSES:

AR& J

SORE,

LLC,

Florida

Berkowitz

liability company, by
ger, by
Partnership, its m
LLC, its

Print

ame

general

limited
Limited

Berkowitz,

By:

kgmow IL BRUM

Jeffre

er

witz, Manager

t Name

Print Name

CORPORATE S EAL
]
Print Name

STATE OF FLORIDA
SS:

COUNTY OF MIAMI-DADS

The

foregoing instrument was acknowledged before

by Jeffrey L. Berkowitz, as Manager of Berkowitz,
co

me

this

LLC,

day

of

a Delaware limliability

pang, as general
partner of Berkowitz Limited Partnership, a Delaware limited partnership,
AR&
J
SOBE, LLC, a Florida corporation, a Florida limited liability company, in
aforestated.

as manager of

the capacity

license as identification.

He is personally known to me or produced a valid. Florida driver' s

No

eC

Public

Type, Print or Stamp Name

My Commission Expires:

65)
MIAMI 699472- 17 7199217084
5/ 20/ 05 2: 13 PM

EXHIBIT A

LEGAL DESCRIPTION OF LAND

Developer' s Parcel:

Lot 1 through 16 in Block 104, 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 Miami - Dade County, Florida less the South 10 feet of the East 50 feet

of Lot 8 and less the South 10 feet of the West 50 feet of the East 100 feet of Lot 8
and less the South 10 feet of Lot 9 in Block 104 of Ocean Beach.

Alley:

That certain 20 foot wide alley, bounded on the east by the west boundary of Lots
1 through 8, Block 104, Ocean Beach Florida Addition No.

3 according to the plat

thereof as recorded in Plat Book 2, Page 81 of the Public Records of Miami-Dade

County, Florida; bounded on the west by the east line of Lots 9 through 16, of said
Block 104; bounded on the north by the north line of Lot 1 of said Block 104
projected westerly; and bounded on the south by the north line of the south 10 feet
of Lot .8 of said Block 104 projected westerly

66)
MIAMI 699472. 17 7198217084
5/ 20/ 05 2: 13 PM

15 HIS

t<

s-

No

aY

ISO

fi.:

kill

Ilk

s -,;..------- --

OWN. -

Dt
z
X

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aw

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10 200

is ,

EXHIBIT C

CITY' S TRANSIT FACILITY CONTRIBUTION

Payment Schedule

per

Section 6.2. 1 (

vi))

In respect of each construction draw in respect of the City Spaces for Hard Costs, City
shall

pay Hard Costs

in

reflected

draw (

after a holdback as determined by

Developer' s construction lender for Hard Costs only) multiplied by a fraction, the numerator and
denominator of which are as set forth below. The numerator shall be the City' s Transit Facility
said construction

Contribution allocated for other than the Transit Facility Dedication Area, the Transit Facility
Dedication Area Finishes and the City Elevator, and the denominator of which shall be the total
amount of-Hard Costs available for disbursement under Developer' s construction loan plus the

City' s Transit Facility Contribution allocated for other than the Transit Facility Dedication Area,
the Transit

City
a

shall

Dedication Area Finishes and the City Elevator. As to the City Elevator,
fund 100% of the Hard Costs and Soft Costs reflected in each construction draw ( after

holdback

Transit

Facility
as

determined

Facility

reflected

in

by

Developer' s

lender for Hard Costs only). As to the

fund 100% of the Hard Costs and Soft Costs

construction

Dedication Area Finishes,

each

construction draw (

lender for Hard Costs

only). City's

City shall
after a holdback as determined by Developer' s construction

obligation to

fund

shall

be

conditioned upon( a)

Developer's

construction lender's simultaneously funding of the entire balance of the.construction draw that
City is funding and ( b) the loan remaining " in balance" ( as hereinafter provided), as determined
by Developer's construction lender.

Simultaneously with the submission of a draw request, and supporting documentation

including whatever evidence the construction lender requires to evidence that the loan remains
in balance"--

i.e. the undisbursed portion of the City's Transit Facility Contribution together with

the undisbursed balance of the construction loan equals or exceeds the total amount required to
achieve

Substantial Completion

materials shall
such

materials

construction

be deemed

be

submitted to

the

Project), to Developer' s

construction

lender,

said

City. City shall approve or disapprove with detailed explanation

of receipt; provided, however,
that approval by Developer's

10 days

within

lender ( including
g
approval

of

determination that the loan is " in b

balance")(
lance ) shall automatically
if it previously disapproved).
Upon approval of such

by City ( even

materials by Developer' s construction lender and upon satisfaction of such disbursement

requirements as are required by the title insurance company to enable the issuance of title
endorsements. without exceptions

for

mechanics'

liens,

City shall fund its portion of City' s

Transit Facility Contribution that is allocable to other than the Transit Facility Dedication Area
simultaneously with the funding by Developer' s construction lender of its contribution so that, in
the aggregate, the full amount of the draw request is funded.

Developer shall promptly respond to any reasonable requests of City for additional
information, and respond to reasonable requests of City, pertaining to draw requests.
Any holdback for Hard Costs shall be funded by the City at the same time that
construction lender funds same.
Upon Substantial Completion, City shall promptly

Developer' s

68
MIAMI 699472. 17 7198217084
5/ 20/ 05 2: 13 PM

fund any remaining balance of City's Transit Facility Contribution that has not been funded as of
that date ( regardless of whether or
shall

be

a minimum of

5%,

not- the construction

lender does

so).

The holdback amount

to be disbursed no sooner than the time the portion of the work to

which the holdback applies is substantially completed.

Anything in this Development Agreement to the contrary notwithstanding, the City shall
fund the. Transit Facility Dedication Area Finishes if the Transit Facility-Dedication Area has
been conveyed to the City and Developer has caused any of the Transit Facility Dedication Area
Finishes for

which

Developer is seeking

payment

to be installed,

even if this Agreement is

terminated and even if City is entitled to reimbursement of other portions of City's Transit
Facility Contribution,

and

this provision

shall survive

termination.

The reason for the foregoing

is that, once the Transit Facility Dedication Area is conveyed to the City, the City will benefit
from the Transit Facility Dedication Area Finishes, regardless of whether or not this Agreement
is subsequently terminated

69
MIAMI 699472. 17 7198217084
5/ 20/ 05 2: 13 PM

EXHIBIT D

CONSTRUCTION GUARANTY
This Construction

Guaranty is entered into as of the

day of
and Jeffrey Berkowitz ( collectively, " Guarantors")
City").

Potamkin, Robert Potamkin

City Of Miami
1.

Beach("

200_

by Alan

in favor of the

The Guarantors, jointly and severally, shall upon City' s request fully and timely

perform or cause

to be performed any Obligations

of AR& J

Sobe, LLC (" Developer") which for

any reason whatsoever are not performed by Developer as and when required of Developer under
the Development Agreement between Developer and City dated
2005 for the 5th and
Alton Project ( the " Development Agreement").
therefor,

Within twenty ( 20)

days after City' s request

the Guarantors shall commence any remaining construction of the Project and shall
I

thereafter

pursue

such construction in accordance with the Plans and Specifications and the

Development Agreement to

completion. "

Obligations" means the obligation of Developer ( a) to

construct the Improvements in accordance with the Plans and Specifications, the Requirements
and the Development Agreement, ( b) to furnish or cause to be furnished all labor and materials

necessary to complete the Project in accordance with the Plans and Specifications and to pay and
discharge any

and all costs and expenses

thereof as the

same

may become due

and payable,(

c) to

complete the Project in a good and workmanlike manner on or before the Completion Deadline

set forth in the Development Agreement free and clear of any mechanic' s liens or claims of lien,
d) to provide such additional funds for the Project from sources other than the City as may be
necessary in order to complete the Project in accordance with the Plans and Specifications, the
Requirements and the Development Agreement. Capitalized terms used herein and not otherwise
defined shall have the meanings ascribed to them in the Development Agreement.
2.

After City' s request for performance hereunder, the Guarantors shall be entitled to

requisition and draw undisbursed funds remaining in the City's Transit Facility Contribution or
that are otherwise payable by the City pursuant to the terms of the Development Agreement for
the purpose of completing the Project,

provided that such funds shall not be disbursed until

Substantial Completion of the Project, and City may offset any funds that it is owned pursuant to
this Guaranty from the amounts otherwise payable by the City on account of the City's Transit
Facility

Contribution.

Guarantors shall be entitled to use insurance or condemnation proceeds

for the restoration and repair of the Project.

3.
upon

City' s

If the Guarantors shall fail to perform or cause the performance of the Obligations
this Guaranty, then: ( a) City shall have the right

request as and when required under

but not the obligation) in its sole discretion to complete the Project itself or through its agents or
third parties ( provided,

however, that this right shall not be exercised so long as .Developer's

construction lender is proceeding in good faith to do so, it being the intent of Guarantors and the
City that the City will do nothing to interfere with the Developer's construction lender's attempts
and ( b)
the Guarantors shall promptly pay to City on demand a sum

to complete construction);

equal to the costs of performing the Obligations by others reasonably acceptable to City in

excess of the undisbursed City's Transit Facility Contribution and other amounts payable by the
City under the Development Agreement remaining at the time of City' s request for performance
70
MIAMI 699472. 17 7198217084
5/ 20/ 05 2: 13 PM

hereunder ( Guarantor's funds shall be paid first, up to the full amount they are obligated to pay
under this paragraph,
and City shall promptly refund to Guarantors any excess funding by
Guarantors, if any, once construction is completed, together with interest at the same rate as City
is receiving on funds
demanded sum at the

to it

by Guarantors hereunder), together with interest on such

10% per annum, .simple interest, commencing on the date of
demand and continuing until paid, except that after judgment all such sums shall bear interest at
the higher of 10% per annum or the rate prescribed by applicable law for judgments. All such
owed

rate

of

payment obligations of the Guarantors shall be promptly paid by the Guarantors in lawful
currency of the United States of America and in immediately available funds. All such payments
shall be made without set- off, deduction or withholding for any reason whatsoever and shall be
final and free from any claim or counterclaim of any Guarantor.
4.

For

Guaranty, the Project shall not be considered " complete"

including all " punchlist" items) shall have been
completed in accordance with the Plans and the Development Agreement and in compliance with
until:

all

( a)

the

laws,

applicable

authorities

having

inspections

purposes of this

construction

and

authorities; ( c)

of

orders,

rules,

jurisdiction

approvals

the Project (

over

regulations and other requirements of any governmental

the Project; ( b) all necessary certificates of occupancy,

for the ' Project

shall

have been issued

by

said

governmental

an architect or engineer reasonably approved by City shall have certified to City

foregoing events ( a) and ( b) have occurred; and ( d) the Property shall be free

in writing that the

and clear of all liens or claims of lien for labor or materials or services furnished in connection

with the construction or installation or equipping of the Project.

5.

The Guarantors jointly and severally agree to pay City interest on any sum for

which the Guarantors may be or become liable to City hereunder, from and after the date such
sum first becomes payable: from the Guarantors to City, until paid, at the simple interest rate of
10% per annum.
The Guarantors jointly and severally agree to pay any reasonable expenses
incurred by City in

the

collection

or

enforcement

of

this

Guaranty, including costs and

reasonable attorney' s fees( including those incurred for appellate or administrative or bankruptcy
in the event that City shall be obliged to resort to the courts or require the services
of an attorney to collect under this Guaranty.
proceedings)

6.

The Guarantors

consent and agree

that Developer may alter, extend, change or

modify the Plans and Specifications or any terms or conditions contained- in any contract or
subcontract or

surety bond

related

to the Project, or may approve

any change order, or may

release or waive or compromise-the obligations of any such contractor or subcontractor or surety,

and that no such. action by Developer shall in any manner affect this Guaranty or release the
obligations of any Guarantor hereunder, regardless of whether any Guarantor has received notice
of the same or has further consented thereto and regardless of whether. City has approved the

action of Developer in question, and the Guarantors hereby severally waive and relinquish any
claim or defense against City based on any of the foregoing.
7.

The Guarantors hereby jointly and severally waive any and all defenses to any
action or proceeding brought to enforce this Guaranty or any part of this Guaranty, except the
single

defense that the Obligation in

question

has actually been

71
MIAMI 699472. 17 7198217084
5/ 20/ 05 2: 13 PM

performed.

Without limiting the

foregoing in any way, but merely by

waives any defense predicated upon:

of

way

illustration,

each Guarantor hereby specifically

Incapacity, disability or-lack of authority on the part of Developer or any

a)

other person; or

b)
budget

or

other

Any
cost

change or modification

in the Plans

breakdowns, any disbursement

or

and

Specifications, the Project

construction

schedules,

or

any

construction contract or subcontract or surety bond related to the Project; or

Any change or modification or extension or waiver of any term of the

Development Agreement or any document executed by Developer or any Guarantor with respect
to the Project; or any indulgence or forbearance or delay on the part of City in the enforcement of
c).

any term of the Development Agreement or any such document, or any other or further dealings
or agreements between City and Developer or between City and any other Guarantor or
guarantors or sureties for all or any part of the Obligations; or
d)

The fact that there may now or hereafter be other guarantors or sureties

liable for all or any part of the Obligations, or that solvent persons other than Developer or the

Guarantors may have undertaken the performance of all or any part of the Obligations, whether
in connection with any surety bonds or any transfer of the Property or otherwise; or
The full or partial release or discharge of Developer or any other present
or future Guarantor or guarantors or sureties for all or any part of the Obligations; or
e)

f)

Any other act or omission by City or failure by City to proceed promptly,

or any other matter which might, but for this waiver by the Guarantors, be deemed a legal or
equitable

release

or

discharge

of a .

surety

or

guarantor, regardless

of whether such act or

omission or failure or other matter varies or increases the risk of any Guarantor or affects the
rights or remedies of any Guarantor.
8.

City shall not be required to notify any Guarantor of( a) City' s acceptance of this

Guaranty, ( b) any disbursements of funds before the Guarantors begin performance hereunder,
c)

any

change

in the Plans

and

Specifications

or any contract or subcontract or

surety

bond, ( d)

any modification.of the Development Agreement or any other document executed by Developer

or

any

other

Guarantor in

connection with

the Development Agreement,

nor ( d)

any default by

Developer under the Development Agreement or by any other Guarantor under this Guaranty or

by any
jointly

other guarantors or sureties

and

notice of

severally
default,. and

for

any part of the Obligations. The Guarantors hereby

for payment, protest, notice of protest or dishonor,

all or

waive presentment

except for City' s initial request for performance by the Guarantors as

specifically provided herein) any other notice or demand whatsoever before City commences to

enforce its rights under this Guaranty, whether by judicial proceedings or in any other manner.

City shall have nohereafter

obligation whatsoever
to disclose to any Guarantor any information City may
about

now possess or

obtain

Developer,. regardless

of whether (

i)

City has reason to

believe that such information materially increases the risk of any Guarantor beyond that which
such

Guarantor intends to

assume

hereunder,
72

MIAMI 699472. 17 7198217084

5/ 20/ 05 2: 13 PM

or (

ii)

City has reason to believe that such

information is

any Guarantor,

to

unknown

iii)

City has a reasonable opportunity to

communicate such information to any Guarantor; the Guarantors understand and agree that the
or (

Guarantors are fully responsible for being and keeping informed of the financial condition of
Developer and of all circumstances bearing on the risk of failure to complete the Project.
9.

The

acceptance of

any

liability

assumed

under this Guaranty shall not be affected by City' s

settlement or composition offered

Developer by any

court,

in liquidation,

either

by

Developer

or

decreed

with respect to

readjustment,

receivership, bankruptcy or
otherwise, except only to the extent that such settlement has resulted in actual performance of the
Obligations, and then only to the extent of such performance.
This Guaranty shall continue and

remain in full force and.effect in the event that all or part of any payment made by Developer in
connection with the completion of the Project is recovered from City as a preference, fraudulent

transfer or similar voidable payment under any bankruptcy or insolvency law.

10.
and

The

obligations of

completely independent

of

the

Guarantors

the obligations

of

under

this

Developer.

Guaranty

are

direct,

unconditional

City may exercise any of its rights

under this Guaranty, including without limitation bringing and prosecuting any action against the
Guarantors jointly or severally or individually, without any requirement that City join Developer
as a party to the action, or notify or make demand upon or proceed against or exhaust any other
remedy against Developer, any other guarantor or surety for the Obligations, or any other person
who might have become liable for the Obligations.
11.

All

rights,

remedies and powers granted to City by applicable law or in this

Guaranty or the Development Agreement or any other document executed by Developer in

connection with the Development Agreement shall be separate and cumulative and may be

exercised

singly

or

concurrently

on one or more occasions.

No delay in exercising or failure to

exercise any of City' s rights or remedies shall constitute a waiver thereof, nor shall any single or

partial exercise of any right or remedy by City preclude any other or further exercise of that or
any

other right or

remedy.

No waiver of any right or remedy by City shall be effective unless

made in writing and signed by City, nor shall any waiver on one occasion apply to any future
occasion, but shall be effective only with respect to the specific occasion addressed in that signed
writing.

12.

While this

Guaranty

remains

in

effect,

no payment or performance under this

Guaranty shall in any way or at any time entitle any Guarantor to any right, claim or cause of
action against Developer, or to any right, title or interest in or to the Development Agreement or

any rights of City, and whether

each Guarantor hereby waives, for the benefit of City and Developer, any

and

all

such

rights (

arising

by

way

of

subrogation,

exoneration,

reimbursement,

participation,.assignment, judicial decision, statute, constitutional provision, or otherwise) which

such Guarantor might otherwise have had in the absence of this waiver and which would have
Guarantor to be a "
Code( Title 11, U. S. Code)

otherwise entitled such

creditor"

U. S.

or

Bankruptcy
13.

any

of Developer. under the provisions of the

other bankruptcy or insolvency law.

This instrument is a continuing, binding, absolute and unconditional guaranty of

completion.which shall remain in full force and effect until the first of the following events shall
have occurred: (
a) the construction and installation and equipping of the Project shall have been
73
MIAMI 699472. 17 7198217084.
5/ 20/ 05 2: 13 PM

completed in accordance with the Plans and Specifications and all other Obligations have been
fully performed or ( b) this Guaranty shall have been terminated by written agreement between
City and the Guarantors or ( c) the Development Agreement shall have terminated by its terms.

Promptly upon request by the Guarantors, or any of them, after the first of the foregoing events
has occurred, City will confirm in writing that this Guaranty has terminated and is of no further
force or effect.-

The agreements by the Guarantors contained in this Guaranty shall bind the

14.

Guarantors

heirs,

and their respective

successors and assigns, jointly

personal representatives,

and severally.

15.

City

may

not assign

this

Guaranty

in

whole or

in

part

to

anyone,

other than a

successor governmental entity( to whom the rights and benefits hereof shall inure).
16.
17.
jurisdiction

Time shall be of the essence with respect to all of the provisions of this Guaranty.

Any provision of this Guaranty which is prohibited or unenforceable in any

shall,. as

to

jurisdiction only,

such

be ineffective only to the extent of such

prohibition or unenforceability without invalidating the remaining provisions hereof or affecting

the validity or enforceability of such provision in any other jurisdiction.

Whenever used in this Guaranty and unless the context otherwise requires, words
in the singular include the plural, words in the plural include the singular, and pronouns of any
gender include the other genders. All references in this Guaranty to numbered paragraphs refer
to the paragraphs of this Guaranty, unless such reference specifically identifies another
18.

document.

All references in this Guaranty to sums expressed in dollars refer to the lawful

currency of the United States of America, unless such reference specifically identifies another
currency.

19.

This Guaranty is executed under seal and is governed by, and shall be construed

and enforced in accordance with, the laws of the State of Florida, except that federal law shall
govern to the extent that it may permit City to charge interest from time to time at a rate greater
than may be permissible under Florida law.
Nothing contained in this Guaranty shall be

construed as obligating any Guarantor in any way to be responsible for interest in excess of that
which would be lawful for such Guarantor to pay under the circumstances.
20.

The- Guarantors

and

City hereby

severally,

voluntarily,

knowingly

and

intentionally WAIVE ANY AND ALL RIGHTS TO TRIAL BY JURY in any legal action or
proceeding arising

under

or

in

connection

with

this

Guaranty, and in any legal action or

proceeding concerning the Obligations, regardless ofwhether such action or proceeding concerns
any contractual or tortious or other claim. Each Guarantor acknowledges that this waiver ofjury
trial is a material inducement to City, that City would not have entered into the Development

Agreement' without this jury trial waiver, and that such Guarantor has been represented by an
attorney or has had an opportunity to consult with an attorney regarding this Guaranty and
understands the legal effect of this jury trial waiver..
74
MIAMI 699472. 17- 7198217084
5/ 20/ 05 2: 13 PM

21.

The Guarantors hereby submit to the jurisdiction of the state and federal courts in

the State of Florida for purposes of any action arising from.or growing out of this Guaranty, and
further agree that-the venue of any such action shall exclusively be laid in Miami-Dade County,
Florida.

Executed on the day and date first above written.

ALAN POTAMKIN

ROBERT POTAM[KIN

JEFFREY L. BERKOWITZ

75
MIAMI 699472. 17 719.8217084
5/ 20/ 05 2: 13 PM

EXHIBIT E

MATERIAL PROVISIONS OF DECLARATION

be

the

to

broken

Land)

an

be

City

the

Developer

the

"

but

City

the

. replaced

payments

provided

" Garage",

term

Improvements

include

limitations

" common

be

the

the

of

will

The

City

Spaces)

It

to

access

for

the

of

Facility") .
(subject

public

easements

and

elsewhere)

Unit

Developer.

Developer

for

to

including

portion

the

and

of

be

to

( subject

areas"

the

by

owned

the

insured,

maintained,

" Transit

including
by members

Elevator

forth

set

the

Unit")

City

comprising. the

be

Spaces

e.

"

Non-

and

allocation

Developer

easements

easements,

City

by

shall

City
( i.

Space

( the

shall

City

Elevator

equitable

the

the

not

to

used,

the

Retail

the

Unit")

an

( which

the

and

City

operated,

Land)

the

of

including

customary
and

spaces

for

the

Unit

necessary)
herein) , and

herein

as

the

than

other

installed,

" Developer

(the

unit

be

will

( when

allocation

equitable

Garage

the

Spaces

Spaces,

including

Spaces

in

that,

so

structured

City

actual

Supermarket

areas"

common

and

repaired

the

comprising

Spaces) ,

comprising

by

owned

the

the

be

will

condominium

into

Space,

Retail

units

out

Supermarket

the

The

General.

1.
addition

support

will

parking
to the

for,

and

encroachments.

is

It

reasonably
that

that

alternative

parking

the

addresses

City'

links

that

and

sufficient

Parties

the

suggested

by

2.

unreasonably
the
Garage

limiting

areas

the

withheld,

and/ or.

of

that

and

or

5/ 20/ 05 2: 13 PM

located

provide

City'

the

at

at

Space

a
a

FTA

time,

same

occupants,

limit

are

as

wholly
but

approval

into

areas

the

with

will

to

the

its

use

to

of

preclude

entry

Space

or

(such

as

Developer . Spaces)

respect

be

Without

computer

Retail

from

not

the

shall

control

the

by

input

Property.

nothing
locks
or

under
not

prior

related

the

access

rooms,

other

City

with

which

on

such

and

nondiscriminatory
may be established

foregoing,

76
MIAMI 699472. 17 7198217084

the

of

Retail

conditioned) ,

devices
or

the

only,

the

of

janitor

elevators

to

intent.

regulations

areas

prohibit

or

this

Developer

delayed

other

Garage

operation

accessible

transportation

while,

Reasonable
and

the

installing

will

Developer

Property

of

Garage

generality

closets

stairwells,

to

approval

the

of

electric

rules

from

that

Use

on

Rules .

as

desire

of

mindful

for the

parking

effect

a.

the

Developer

to

enforced

or,

written

cards)

other

Limitations

Developer

is

applicable)

and

parking
transit

and

modes

City
a

reasonably consider implementing any alternatives

shall

each

consistently
and

and . orderly

other

(and

the

as

objective

to

key entrance point of the City

funding source requirements, if
assuring

facility

the

of

that

implement

to

other

each

use

Parties'

the

of

with

maximum

promotes

facility

intention

the

cooperate

which

from

access

for

exist

rights

Spaces) from

preclude

reasonable

designated
is

open

of

Developer

portions

hours

is

of

aside

be

shall

Conduct

with

operation

and,

and

performance

of

such

maintenance,
not

repair

the

without

of

repair

City
first

if

Garage

for
will

good,

which

first

workmanlike,

disruption

minimizes

of

class,

or

all

or

the

areas

that

Developer

replacement

that

the

such

no

thereof,

the

affected

thereby,

they
be

will
of

were

all

shall
to

prior

the

of

be

the

for

responsible

portions

in which the

area

in

Once

Property;

City will be performing any

replacement

perform

of

portions

completion
other

condition

work.

and

of

work

in

respect

of

the

work

in

respect

of

the

Property,
Property

consulting with and obtaining the prior written approval

Developer may withhold in its absolute and sole
Developer elects to perform such work itself but

which

will not unreasonably withhold,

delay or condition
Any construction .activity by the City within any portion of

approval) .

the

the

of

Developer

otherwise

Property

Developer,

is

shall

Developer (

discretion

manner

any

the

contemplated

maintenance,
and

upon

promptly

least

is

all

Hours) .

closed

All work performed in the

Work.

prompt,

the

at

it

is

Space

substantially

of

in

to

restored

in

and

performed,

was

Retail

during

only

Retail

Property.
such work shall be performed continuously and with due

commenced,

diligence

the

by

occupants

the
subject
nonetheless
to
parking purposes,
herein for employee decal parking
the setting
and
locations therefor, if applicable.

performed

manner,

interference

work

that

designated

public

specific

lien- free

(but

only
of

number

designated

being

Developer

of

occupant

reasonable

contained.

b.
Garage

all

from

Spaces)

from

supermarket

preclude

City
being

and/ or

the . supermarket

of

the

(but
shall

nothing

Spaces)

customers

that

shall

City

Space

that

anticipated

for

available

provisions

the

hours

customers

Retail

the

of

it

business,
be

by

use

not

the

by

use

those

During

( but

Spaces

for

Developer
of

for

City

not

parking

Spaces

Non- Supermarket

only ( but only during the

and
for business)
nothing

occupant

defined) ,

Developer

of

City

not

Developer

by

hereinafter

as

term

short

shall

nothing
( but

Spaces

for

Developer

number

( but

Spaces

Supermarket

Further,

City.

Developer

of

by

Hours,

Retail

the

of

number

designated

being

during

only

benefit

the

reasonable

preclude

shall

reasonable

require

least 48 hours written notice to .

at

in the case of an emergency when only such notice as

except

under

the

circumstances

be

shall

Any

required.

construction activity in the Garage shall be performed in a manner that

inconvenience

minimizes

to

disruption

and

of

the

operation

of

the

Garage and the availability of parking spaces.

Plans

C.

plans
same

and

specifications

to

available

request

therefor

materials,

at.

its

the

fact

and

replacement

that

the
( and

.
such
of

other

the

cost) .

any

work

5/ 20/ 05 2: 13 PM

performed

Party shall
by it, and

retain

shall

all

make

Party from time to time upon reasonable

Party may duplicate any such

other

The

materials

facilities

foregoing
may

is

facilitate

within

77
MIAMI 699472. 17 7198217084

Each

Availability.

for

the

agreed to in recognition of
the

maintenance,

Property.

Each

Party

repair

disclaims
such

any

representation

or

d.

Compliance

for maintaining,
Property, and Developer

responsible

the
this

Legal

that

Property;

that

responsible,

the

it

that

commissions,

however,

as

well

with

county
and

or

to
or

tenants,

the
to

not

of

while

with

all

any

Legal

such

or

changes

shall

comply with all Legal

Garage,
for which it

Requirements

shall

and

the

of

it

which

mean

engages

pertaining to
in respect of

i)

present

all

regulations

municipal

and

and

and

requirements

of

departments,

governments,

rules

regulations

or

ii) the

to

the

Property;
now

covenants

other

in

Legal

Requirements.

of any

Legal

Requirements,

policies

or

and

manner

thereof,

and

of

the Property

use

of

all

all

curbs

public

any time

at

in force

provisions of any

hereafter affecting the

with

of

including the Americans

insurance

iii)_
the

as extraordinary,

sidewalks

requirements
of

cooperate

Either

Party

their

or

Property.

reasonable

Each

of

requests

the

shall

have

the

to

right

through

applicability,

all

contest

any

available

and may defer compliance with any Legal Requirement while

same

contesting

contesting ' Party takes

enforcement

or

well

the

or

of resolving issues pertaining to compliance with

respect

means,

to

agrees

use

occupants

and

as

ordinary

Property

the

other

Party further

so

in

rules,

unforeseen,

and

respect

is

and

fire

restrictive

it

Legal

all

courts,

applicable

Disabilities. Act;

lawful

with

City

operation

orders,

boards

owners,

liability,
with

the

activities

state,

foreseen

may be

the

or

components

times

all

whether

structural

the

that

to

as

or

adjoining the..Property

by

at

fully comply

is

Developer

all

rating organization or any other body exercising similar

functions,
which

necessitate

ordinances,

federal,

will

Property,

" Legal Requirements"

laws,

insurance

the

it
and

promptly

Requirements.

replacing

and

that

agrees

to

pertain

performs

Property

future
all

the accuracy of any

to or interfere with the use and enjoyment of the

provided,

Requirements

work

shall

Legal

with

repairing

effect

pertain

Requirements

improvements*

in

is

Declaration

Requirements

is

to

as

warranty

materials.

action

or

in

all

faith

good

diligently,

long as
steps reasonably required to stay any

otherwise

prevent

and

material

so

adverse

impact

to

the

the

other Party or the Property.

Cooperation.

e.

Declaration,
extent

the

use

thereof,
to

reasonably necessary

easements

reasonable

intent

and

of

3.

are

requests

completed,

of

Each
the

be

accomplish

Party

other

in

agrees

deemed to be
the

to

purposes

limited to the

for which such

cooperate with the

furtherance

the

of

spirit and

the matters addressed in this Declaration.

Initial

a.

contained

granted.

All easements granted in this

shall

in

Construction/ Renovations/ Use.

Changes

by

Developer.

this

Declaration, after
Developer
shall have the

78
MIAMI 699472. 17 7198217084
5/ 20/ 05 2: 13 PM

Subject

the. Initial
right

at

any

to

the

provisions

Construction
time

and

has

been

from time

to

time,

located

licensee'

of

its

on

release

the

buildings

any

it

may

from
or

easement

the

facilities,

Developer

such

relocating
for which

be

have

easements

accomplished

of

for

that

be

no

in

granted

that

manner

or

the

shall

be

drainage

or

been

its

granted

for

cost,

other

components

Declaration,

this

minimizes

in

foregoing

the

at

the
with

not

will

If

to

the

not
upon

project

utility
have
easements

facilities,

or

change

which

responsible,

or

Property

compliance

existing
which

the

partly

to

the

existing

Property

whether

conditioned.

or

from

any

of

or

subject

approval,

shall

been

in

drainage

or

utility

to

the

of

wholly

provided

then

any

components

Declaration,

this

shall

of

other

or

City'

delayed

withheld,

the

retail/ restaurant/ office

the

and

In

have

portion

regardless

Declaration,

herein
as

its

altered,

Declaration.

approval

or

event
areas

automatically

shall

add

or

portion
on

constructed

this

Property

relocation

requires

are

by

without

effected

desire,

time

contained

the

of

unreasonably

by

created

provisions

be

to

time

its

on

this

consent

alter

structures

replacements

areas

character

or

from

specifically

obtaining

replace,

located

buildings

new

additions

to

the

easement

shall

its

Spaces

City

rearranged,

changed,

Developer

for

need

else,

to

same

reduced,

otherwise

structures

or

build
as

the

anyone

or

so

the

or
and

( and

In

affected.

respect

is

the

to

rights

Property,

which

foregoing,

the

without

right,

or

upon

the

of

area

easement

to

addition

with

accomplished

use

City

upon

Declaration

adversely

materially

the

build

by this
long as the City'

so

and

easements

s)

not

portion

built

modified,

are

are

same

located

City

invitee'

and

Property,

from

approval

modify,

created

areas

the

of

or

alter,

rearrange,

easement

portion

Elevator

City

any

its

consent

obtaining

change,

the

reduce

on

for

need

to

else,

otherwise

and

the

without

anyone

or

same

and

disruption

(and,

of

interruption of) service and

to the extent reasonably possible,
avoids
for
in
to
maintenance
and
a
manner
so
minimize
as
accessibility
and
disruption of the
and
inconvenience. to
owners
occupants
of
the
portions

remaining

of

the

Property

spaces
in
the
parking
not
Developer
shall
effect

result

in

Property

(any

shall

reduction

and
adversely
materially
ingress/ egress to and from

b.

load

from any

capacity

Weight

Loads.

portion

the

of

the

its

of

applicable

number

not

impact

operation

and

of

affect

to

access

availability

the

Notwithstanding
the
foregoing if

any of
reduction
in the

material

the

and

Garage.

of

foregoing,

doing

would

so

parking spaces at
the
Spaces)
City

said

parking

spaces

the
or
or

Garage.

Neither

Property
of

portion

Party
to

shall

the

permit

the

exceed

structure

the

weight

load- bearing
located on the

Property.
c.

to

exist

on

the

that

recognize

compactor/ trash
although

taken,

it

is

Party

provided,

difficult

to

control

to

the

steps

to

minimize

provisions

of

this

nature

permit

odors

any offensive
both Parties

that

odors

of

subparagraph

79
MIAMI 699472. 17 7198217084
5/ 20/ 05 2: 13 PM

shall

however,

due

areas

reasonable

the

Neither

Odors.

Property;

the

within

use

of

the

loading and

those

from those areas

shall

be

odors

areas

and,

will be

interpreted to give

due consideration to the difficulty in controlling odors in these

areas.

d.
for

the

pay
install

only

City

unless

Unit,

motor

which

will

conditioned) ,

and

all

all

costs

(but

Parties

the

of

submetering

shall

their

be

revenues

minimal

all

within

Retail

installation

Space

in

install

to

right

machines

the

of

purposes

Garage ( but

the

or

Developer

portions

the City

of

unreasonably withheld,. delayed or

derived therefrom shall belong solely to

associated
shall

exclusive

similar

portions

not

this

take

areas

and

to

consents

Developer

responsibility

in

be utilized solely
( including
reasonably designated by
shall

incidental

and

have the

telephone

consent

and

vehicles

shall

them

Garage

The

storage

. Developer

ATM,

vending,

Garage.

of

other

and

cart

shopping

Unit

of

parking

Developer) .

shall

Use

therewith

be Developer'

shall

not

require

separate metering or

utility

service

required

steps

possible

reasonably

therefor) .

to

prevent

sole

Both

soliciting

in the Garage.
Hazardous

e.

not

generate,
'on

substances

from

are

time

portion

or

requests

the

of

Party being

breached

is

the

and

any

each

other

to

The
and

first

Parties

not

as

for permits

Property.

Each

Party desiring

submit

such

applications

in

with

its

Legal

all

regulatory

that,

in

the

the

entire

the

of

that

materials
generation,

use,

any Legal Requirements.

release

it

of a hazardous

shall promptly notify

with

all

remediation,

except

to

the

sentence

of

this

at

reasonable
no

extent

to

cost

such Party

subparagraph

( e) .

to

to

to

the

City

Declaration)

( in its
or

the

may
joinder by
to perform work within the
require

perform

the

that

this

other

work

shall,

Party for

if

so

review,

other

both

required,

approval

not

terms

Requirements,

capacity) .

connection

Property,
for

with

the

or

for

be unreasonably withheld, delayed or

the work for which the permit is being sought

will

provided

accordance

to,

acknowledge

applications

conditioned,

it will

materials

whose

cooperate

Party

in

which

that

Compliance.

authorities

any
joinder,

or

Property,

shall

governmental

and

of

the

or

substances

by,

pursuant

applicable

Parties

any

cooperate

the

of

agrees

substances

such.

in respect

Government
i)

as

notice

Party

Party

requested

regulatory capacity

mean

affecting

provisions

f.

the

shall

Party

of

Hazardous

regulated

receives

Each

any hazardous materials or

Property except in full compliance

designated

time

substances

Party,

other

dispose

of

foregoing

to

Party

either

material

Materials.

or

Requirements.

disposal

or

storage

the

any

the

of

purposes

the

store

all .Legal

with

If

use,

with

of

this

Declaration

including

The

Parties

is

( including

.compliance
required by City in
further acknowledge being aware

approvals

permitting pertaining to any

portion

of

the

Party applying for such permit may have to submit plans

Property and, if this is required by applicable
80

MIAMI 699472. 17 7198217084

5/ 20/ 05 2: 13 PM

no

the

to

cost

that

Party shall cooperate with the other,

cooperating Party, in accomplishing this in a manner

ii)
furnish

from

to

governmental

any

Requirements,

Party

the

other

Declaration,

City

repair,

class

class

facilities

South

Florida

repair

and

to

insure

and,

business

( 5)

days

or may be the

and

In any
in

that

so

to

the

event,

Garage

municipal

limitations

Garage

that

same

are

be

no

at

agrees

to

portions

of

all

times

with. similar

in

first

for maintenance,
less

than

the

that are operated by

garages

parking

all

Property in the

the

standards

shall

in this

Developer

and

replace,

of

and

elsewhere

consistent

repair,

stature

the

of

replacement

the

Replacement.

necessary,

Garage) ,

the

of -similar

area.

when

and

contained

the

operate

condition

order,

to

provisions

agrees

maintained

standards

is

which

Repair

Subject

contribution

first

to

respect

with

Maintenance,

Property ( including

the

five

within

Party a copy of any notices received

authority pertaining to any violation of Legal

Generally.

a.
reimbursement/

shall,

the other Party.

of

Operation,

maintain,

Each

compliance

responsibility

4.

at

delay in the application process.

minimizes

receipt,

of

each

authorities,

governmental

the City elsewhere within Miami Beach.

b.
to

By

all

Garage) ,

the

the

of

portions

The foregoing obligation of Developer

and,

Property

when

include,

shall

maintained

and - sanitary

watertight

orderly,

insure,

repair,

maintain,

including

Developer.

necessary, replace the Property

(i) keeping
without limitation:

in

condition;

clean,

(ii)

unlittered,'

removing,

to

the

iii)

keeping all marking and

Property clear, distinct and legible;
iv) maintaining, mowing, weeding, trimming and watering all landscaped
areas;
( v)
maintaining and operating exterior and public area lighting
at
reasonable levels during hours of darkness;
( vi) painting and
extent

practicable,

directional

surface

if

signs,

otherwise

maintaining

Property;

on

any,

the

waters;

the

surfaces

exterior

of

the

buildings

on

the

providing such security as Developer reasonably deems

vii)

and ( viii) generally maintaining the structure and

systems
of
the buildings on the Property.
building
The City shall be
appropriate;

for

responsible
equipment

and

Developer'

installed,
of

the

approval

and

the

and

contribution
replacement
purchase

and

the

monitors/

signage)-,

by

purchasing and installing all systems,

(
but subject to
reasonably designated by it
of the systems;
equipment and signage to be
thereof,

costs

of

operation

cameras

exit

initially

signage

Garage (

recorders,

initially

at

Developer

shall

be

an

its

( but

sole

cost

control

collection

cost

subsequent

Expense;

and

devices,

security

equipment,

without

entry and
initial

maintenance,
and

in respect

withheld)

one

half

repair
of

the

and

initial

shall be amortized over ten years

81
MIAMI 699472. 17 7:198217084 .
5/ 20/ 05 2: 13 PM

unreasonably

access

money

Operating

installation

not

ex.

together

in

rate

finance

with

effect

is

thereof)

the

at

arrears

the

amount

the

subsequent

taxes

be

on

and

or

thereof.

Expense"

Operating

the

utilizing

cost

or

the

10- year

material

T- bill

portion

systems,

such

to

equipment

may from time

who

maintain,

systems,
who

performs

of

the

Garage.

and

as

obligation to pay

and

to

signage,

time

pay taxes on

with

signage,

shall

in

elect,

insure,

repair,

equipment

of

installation,

and

insuring,

the

costs

being allocated as an

same)

that

to the other provisions of this Declaration)

( subject

required

reasonably

of

purchase

repair,

The foregoing obligation of the City to

By City.
the City shall provide all personnel,
systems and

C.

means

equipment

maintenance,

such

of

any

the

amortized) ;

discretion

(regardless

operate

initial

Developer,

with

sole

replace

so

replacement

coordinated

Developer'

by

computed

the

incurred and Developer shall pay to City annually in

well

as

charge

time

to

control

vehicular

access

to and from the Garage,

collect compensation and implement a reasonably and mutually agreed

upon
and

validation

parking

prior

approval

thereto.

system.

by the Developer of budget and other matters pertaining

reasonably

presents . a

The quantity and types of equipment

by the City, subject to reasonable

designated

Developer may

but

sole

be

shall

personnel

any time

at

objective

reasonably

and

business

exercised

in

that,

aware

for

for

order

the

request,

authority to second guess Developer)

shall be promptly implemented by the

being

for any reason in Developer' s

judgment ( i. e. if Developer

the

City

request

changes,

to

for

operate

its

intended

sufficient
orderly employee and customer parking will be required and,

purpose

and

accordingly,

the

Retail

Space

be

but

is

no

garages

decal/

as

or

restaurant

of

earlier
square

third
which

of

than

by
(

parties,

be

shall
year

and

maximizing
parking

for

(the

shall

Garage

access

transit

initially

adjusted

82
MIAMI 699472. 17 7198217084
5/ 20/ 05 2: 13 PM

the

users

is

time

with

of

and

higher
the

rate

City

from

in

time

Retail

being

entitled

timed

in

sole

for

120

its

90%

initially

for

general

demonstrable

be

defined

quarterly
public

with

transit

Retail

users

the
priority
(
days after the

occupied

shall

( B)

including

transit

or ' when

least

parking

time) ,

Space (

given

within

rate

its

to

to

ticket

Completion

frame
at

be

not

at

parking

determined

Space

revenues

consistent

by

card

Substantial

earlier

be

to

City Commission

decal/

Retail

shall

park

charged

employees

with

after

the

of

agrees

rates

the

C).

who

to

entitled

the

parking

operations

Occupancy") ,
transit

one

footage

business

toward

card

shall be applicable:

patrons,

be

Developer

( unless

less

and

parking in the Garage will, unless otherwise

its sole but reasonably exercised business
validated parking
for customers of the Retail

shall

employees) ,

other

extent

( A)

established

access

successful,

in

restaurant

who

more

discretion)

and

solely

( excluding

validation,

that

All

Developer

by

judgment,

be

to

following limitations

the

i)
approved

Space

the
which

Both Parties acknowledge

City.

Garage

not have

shall

personnel

Space

of

the

normal

as

"

and

Full
view
non-

parking

in

demand;

this

including

D)
(

the

Hours,

Developer

do

or

judgment,

the

based

scale

the

on

sliding

extent

customer

to

for

c) (

hourly

parking

Retail

Space

there

for

Retail

is

agree

mutually

subparagraph

they

( unless

provision) .
restrictions

Hours

are

included

be

to

the

such

nonand

special

parking

in

cards

number

of

business) .

Public

Passes

After
to

5/ 20/ 05 2: 13 PM

in

the

last

sum

hourly

scale

sentence

as

be

to

Retail

that

Parties

the

pursuant

omission

to

which

contract

special

such

of

such

enforce

reasonably

the

and

during

restricted

and

ticket

assure

Space

Garage

the

the

of

orderly parking

which

parking

of

of

that

Parties

the

and

the

of

the

approves

after

be

Full

faith,

including

transit

outstanding

100, 000

square

initial

made

Occupancy,

determine

Passes")

83
MIAMI 699472. 17 7198217084

be

based

upon

be

sliding

needed).

" Public

the

be

may

good

to

passes

at

for

days

120

and

any given time ( the

defined as hours when at least
open

events.

special

Within

of

users

notices

post

mutually,
reasonably
employee decals/ access

is

All

advised

reasonably

shall

ii)

Garage

sum

will

by

customers,

success

Garage

the

(and

their

and

be

shall

shall

event

longer

parking requirements
limitations on timed

sufficient

reasonably

operation.

Developer

during

Space

will

agreed

the

intended

is

the

foregoing

of

use

it

if

the

essential

City

parks

upon

special

card) ,

but

on

in

forth

set

as

met,

above

that

sign

events

( C)

based

their

have

maximum) ,

circumstances

charged

term

and

not

Retail

the

and

to

the

agreed

reasonably

Although

occupants

Garage

public/ transit

hours

( two

which

of

be

of

validated

so

circumstances

permitted

times

Space

Retail

the

be

being

all

at

will

ii) below.
will

during

parking

and

Parties

the

of

are

is

or.

parking

Space

access

occupant

be

intended to control parking in order to effectuate

is

that

4(

subsection

one

shall

an

shall

short

does

that

decal/

user

period

mutually

which

intent

mutual

applicable,

parking,

aforestated)

the

patrons) ,

listing different

if

each,

ticketed

by

validation

of

payment

transit

validated

restaurant

schedule

including

not

designated

the

subject

on

is

permit,

excluding
than

card

access

event

parking

term

long

Retail

the

Garage

the

which

exercised

patrons)

sufficient

assure

during

approves,

reasonably

restaurant

of

occupants

in

but

discourages

to

necessary

sole

for

that

amount

the

Anyone

customers) .

decal/

for

its

in

do

to

restaurant

(but

users

Developer

unless

of

occupants

for

parking

transit

non-

and

sole

parties

cooperate

reasonably

ticket

timed

(except

rate

reasonably

parking

E)

defined,

to

refuse

business

transit

hereinafter

as

may

or

both

public,

shall

City

which

with

its

third

the

of

operated

or

in

contrary
for
parking

be

shall

owned

the

Developer

by

organized

City

other

to

permit

event

implementation) ,

and

for

policy

to be

cards

access

defined,

hereinafter

as

approves

events

Space,

facilitate

Retail

special

special

Retail

patrons

City'

Developer

unless

discretion) ,

the

the

with

consistent
garages

decals/

of

number

maximum

Hours,

Retail

during

allowed

the

regard,

for

of

the

in

Retail
the

maximum

the

Hours"

Retail

of

of

cards)

parking

the

determination

available,

Parties

number

decal/ access

during "

feet

the

the

Space

maximum

number

of

Passes

Public

adjusted

by

patterns

at

revenues

to be made available will be reasonably and in good faith

least

parking

decals/

access

consistent

to

to

an

City'

.,
Developer

on

toward

view

policy

( A)

to

actual

usage

Garage

maximizing

the

to .exceed

not

in

operating

the

14)

on-

in

Spaces

that

each

payment

and ( B)

Space

sole

priority
Passes by up

common,

without

Retail

its

going

City

of

tenants

as

be

operated

in

Public

of

number

of

shall

or

number

and

number

the

on

Developer

and

City

number

Hours

owned

different

continuing

reduce

50% interest,

is

maximum

Retail

other

be based

to

number

restaurant

of

have

the

during

for

approves

by City

owned

however,

allowed

shall

else

precise

undivided
a

be

Developer

anyone

the

if

sum

based

Parties
a

provided,

to

the

unless

jointly

are

demand;

with

over

14 (

quarterly

cards

discretion) .
right

the

(with

and public/ transit parking consistent with demonstrable Retail

Space

garages

between

agreement

of

as

any

purchase

up to 150 Public Passes ( exclusive of the reduction in Public Passes

implemented pursuant to. ( A), above,
if any) for use by the Retail Space
their

occupants,

Public

per

to

third

needed,

in

parties

and/ or

time,

at

any

by

virtue

or

( upon

Passes

again

code

change

be

those

in

parking

use

the

of

Passes

that

Decals/
event

to

permits

other

the

same.

Space

City'

and

orderly
to

that

modes

for

this

same

time,

implementing

Retail

were

so

If

spaces
user,

in

the

this

Public

of

Hours

by

upon

be

shall

Parties,

Agreement.
and

special

Retail

for

parking

Hours

of

Garage

the

City

implement

to

other

at

Retail

the

that

subparagraph

the

to

shall

revenues while assuring

as

transit

the Garage and addresses

parking

that

alternative

a key entry point of the City

assuring

any

intent.

at

number

during

funding

Space

84
MIAMI 699472. 17 7198217084
5/ 20/ 05 2: 13 PM

provide

FTA

City'
Retail

of

as

public) .

parking

parking

each

revenues

to

transportation

the

the

with

time

supermarket

users)

orderly

this

of

use

the

desire

the

at

consider

effect

of

of

while,

intent

promotes

and

and

cooperate

maximizes

objective

parking

reasonably
other

reasonably

mindful

applicable)

the

643

transit

Garage

potential

that

the

maximum

than

to

entitled

satisfy code shall be

to
the
limitations

forth

for

separately

to

agreed

for

those

sufficient

is

It

facility,

to ' other

is

coded

maximize

operation

accessible

links

be

The

other

and

including

time . reasonably

occupants.

parking
the

to

below

subject

Declaration.

during

to

cost

offered

Developer

Passes

sale

needed

mutually
limitations
set

other

will

Developer

and

faith

cards

hours

this

outstanding

good

the

access

and

be

may
in

reasonably,
subject

in

elsewhere

that

contemplated

parking spaces that are no longer

available
for
public/ transit
parking,

is

at

rate

time.

Developer

Public

for

Hours

from

Passes

falls

those

contained

that

available

required

Retail

comparable

may,

Public

all

surrender,

once

the

of

Developer

or

any

lowest

the

as

Public

any

during

employees

same

Garage.

surrender

shall

and

the

the

all

purchased

surrendered

is

that

purchase

purchase

have

customers

Pass

source

requirements,

reasonably

occupants,

and

alternatives

the

sufficient

Parties

suggested

by

if
and

shall
each