Filing # 190348716 E-Filed 01/23/2024 02:14:47 PM

IN THE CIRCUIT COURT OF THE 11TH

JUDICIAL CIRCUIT IN AND FOR MIAMI-
DADE COUNTY, FLORIDA

CIRCUIT CIVIL DIVISION

CASE NO. ______________

BAL HARBOUR SHOPS, LLC, a Delaware

limited liability company,

Plaintiff,

vs.

BAL HARBOUR VILLAGE, a Florida

municipal corporation,

Defendant.
__________________________________/

COMPLAINT

Plaintiff, Bal Harbour Shops, LLC, a Delaware limited liability company (“BHS” or

“Plaintiff”), by and through undersigned counsel, sues Defendant the Village of Bal Harbour, a

Florida municipal corporation (“Village” or “Defendant”), and states as follows:

INTRODUCTION

1. In 2023, the Florida Legislature boldly and decisively confronted one of our state’s

most pressing issues – the rising cost of housing – and through the passage of what is commonly

known as the “Live Local Act” mandated that certain local zoning ordinances which restrict

housing availability must be superseded and preempted by state law. Faced with this clear and

unequivocal directive to promote attainable housing in the state, some exclusionary municipalities

have chosen to either ignore the law completely or assert positions contrary to the law to delay and

thwart its clear intent. This conflict, which is often characterized as a debate between YIMBYs

(yes in my backyard) and NIMBYs (not in my backyard), meets its inflection point in this lawsuit,
where BHS asks this Court to have the historically exclusionary Village of Bal Harbour follow the

clear mandate of the law and require the Village to process, review and approve its pending Live

Local-compliant application for administrative development approval and reject as a matter of law

some of the pretextual grounds upon which the Village seeks to effectively nullify the law,

including but not limited to a contemplated (and illegal) moratorium targeting BHS’s project.

PARTIES, JURISDICTION, AND VENUE

2. Plaintiff Bal Harbour Shops, LLC is a Delaware limited liability company with its

principal place of business located in Miami-Dade County, Florida. Plaintiff owns Bal Harbour

Shops, an internationally recognized luxury lifestyle and fashion shopping destination, located at

9700 Collins Avenue (the “BHS Property”) in Bal Harbour Village.

3. Defendant Bal Harbour Village is a municipal corporation organized under Florida

law and is located in Miami-Dade County.

4. This Court has jurisdiction over this matter pursuant to (i) Section 26.012 of the

Florida Statutes; (ii) Chapter 86 of the Florida Statute; (iii) Article V, Section 5(b), Florida

Constitution; and (iv) Rule 1.630, Florida Rules of Civil Procedure.

5. Venue is appropriate in Miami-Dade County pursuant to Section 47.011 of the

Florida Statutes because the Village and the BHS Property are located in this County.

6. All conditions precedent to the filing of this action have occurred, have been

performed by Plaintiff or have otherwise been fulfilled, or their performance has been excused or

waived by the acts and/or omissions of the Defendant.

7. Plaintiff has retained the services of undersigned counsel for the purpose of

bringing and maintaining this action and has obligated itself to pay a reasonable fee for legal

services and the costs of bringing this action.

2
 BACKGROUND FACTS

A. History of the Shops and the Village’s Commercial Zoning District

8. In 1957, Stanley Whitman (who was also one of the incorporators of the Village in

1946) completed the purchase of 16 acres in the Village, which at the time were occupied by World

War II army barracks that had been converted to apartment homes.

9. At the time of his purchase, the BHS Property was planned for a gas station and

grocery store; however, in 1965 Stanley Whitman had the vision to develop Florida’s first

exclusive, high-fashion shopping center, Bal Harbour Shops (the “Shops”).

10. Since then, the Whitman family, through the continued development and ownership

of the Shops, has created and managed an internationally recognized luxury and retail destination

that has become the commercial center of the Village and helped establish the Village as an

extraordinary place to live and work.

11. Significant to this action, the Shops are located within the Village’s only

commercial zoning district, the Business District.

12. In fact, the Shops encompasses almost the entire Business District and includes a

variety of permitted uses, including but not limited to: financial institutions, art galleries, municipal

buildings, offices, sundry shops, retail, and restaurants.

13. Adjacent to the Business District, and directly across the street from the Shops, is

the Village’s only high-rise, high-density residential district, the “Ocean Front District,” which

extends the entire length of the Village’s eastern boundary on the Atlantic Ocean. According to

the Village Zoning Code, the Ocean Front District’s “intended development characteristics include

primarily high-rise luxury residential development with ancillary commercial and recreational

3
uses, exclusively for the use of the residents of the residential development.” § 21-293, Village

Code (emphasis added).

14. The Village has a long history of approving luxury, high-rise condominiums and

hotel structures. The ultra-luxurious, 475-room Americana Hotel opened in 1956, and numerous

high-rise luxury towers reaching at least twenty stories followed suit, including: Balmoral

(completed in 1977), Palace at Bal Harbour (completed in 1994), Majestic Tower (completed in

1998), Bellini Bal Harbour (completed in 2005), St. Regis Bal Harbour (completed in 2012),

Oceana (completed in 2016), and Rivage (approved in 2022).

15. The luxury-designated Ocean Front District is completely built out with little to no

remaining capacity for additional high-rise development.

16. The remaining residential zoning districts in the Village are low density or single-

family and are also completely built out with little to no remaining development capacity.

17. Based on the Village regulations limiting residential development to primarily

single-family and luxury, high-rise development on the ocean, and the demand for high-end

residential uses, these districts do not provide and are not suitable for redevelopment with

affordable or work-force housing.

18. The Business District is the only Village zoning district that qualifies for affordable

housing development under the Live Local Act. In other words, the Application presents the only

prospect for affordable housing development within the Village.

19. The Village’s Code has not and does not provide any affordable housing incentives

or guidelines.

20. Upon information and belief, at no point since its inception has the Village ever

attempted to promote or permit affordable housing.

4
 21. To the contrary, there has been a legacy of exclusionary zoning and housing

practices in the Village that go beyond a mere aversion to affordable housing. See Florida Club

Drops Barriers in Face of Discrimination Suit, NY Times, Dec. 12, 1982,

https://www.nytimes.com/1982/12/12/us/florida-club-drops-barriers-in-face-of-discrimination-

suit.html (“The Bal Harbour Club has dropped a 36-year-old policy barring Jews and blacks from

this exclusive seaside community, a practice that brought on a $10 million discrimination suit.”);

Marc Nathanson, Armed with a New Ordinance, a Small Town in Florida Fights Back Against

Hate, ABC News, May 31, 2019, https://abcnews.go.com/US/armed-ordinance-small-town-

florida-fights-back-hate/story?id=63079013 (“Until 1968, deed restrictions kept Jews and blacks

from owning property in the seaside village of Bal Harbour[.]”).

22. While these express discriminatory policies would uniformly be viewed as

unlawful and appalling today, their remnants continue to shape the exclusivity of the Village,1 with

many residents of the Village viewing the addition of affordable housing as antithetical to the

Village’s identity as an exclusive and luxurious community and something that needs to be

protected against at any and all costs.

B. The Expansion and the Development Agreement

23. In 2017, after more than 50 years without any significant expansion and in the face

of a rapidly changing retail marketplace, BHS sought to expand the Shops and submitted an

1 See https://www.zillow.com/home-values/3509/bal-harbour-fl/ (showing $1,804,283 as

the average value of a home within the Village, i.e. 325% higher than the average value of a home
in the City of Miami); https://www.zillow.com/rental-manager/market-trends/bal-harbour-fl/
(showing the median rent in the Village at $8,500, i.e. 166% higher than median rent in the City
of Miami) https://worldpopulationreview.com/us-cities/bal-harbour-fl-population (listing the
racial composition of the Village as of the 2020 Census as 81.03% White, with only 1.75% being
Black or African American).

5
application for site plan approval, which was approved pursuant to Resolution 2017-1077 (the

"2017 Site Plan").

24. As part of the 2017 Site Plan approval, the Village required BHS to enter into a

"Development Agreement" which was approved by Village Resolution 2017-1077 (the "DA"). A

copy of the DA dated July 27, 2017, is attached hereto as Exhibit A and incorporated herein.

25. The DA is tied to a specific site plan and provided BHS with assurances that the

Village could not apply future changes to the Village's Code, Charter, or Comprehensive Plan that

would adversely affect the approved 2017 Site Plan.

26. Under the DA, BHS expressly reserved the right to develop additional density,

intensity and height on the BHS Property if subsequently enacted laws and regulations permitted

additional development capacity. (§ 34.2, DA).

27. In exchange for the Village’s approval of the 2017 Site Plan and the ability to

exercise BHS’s right to develop its property, the Village required, as an express condition of its

approval, the following “contributions” and tax benefits and fees to the Village, totaling over $122

million in Village benefits (Ex. F, DA):

Land and Improvements: Value

Fairfield Property $16,000,000.00
SunTrust Land Only $12,750,000.00
Perpetual Easement on Shops Sidewalks $3,607,000.00
New Village Hall w/ Parking $15,600,000.00
Pedestrian Area Beautification $9,375,000.00
Waterfront Park $3,500,000.00
Art in Public Places $1,000,000.00
Traffic, Gate, LPR Improvements $155,000.00
Total: $61,987,000.00
Rents, Taxes and Fees:
Present Value of Increased Resort Tax $13,501,000.00
Present Value of SunTrust Rent $12,608,000.00

6
 Present Value of Increased Business Tax $9,238,000.00
Present Value of Multimodal Fund $8,710,000.00
Contributions
Present Value of Increased Ad Valorem Tax $8,656,000.00
Present Value of Police Department Free Rent $4,216,000.00
Present Value of Off Duty Police Fees $3,889,000.00
Total $60,818,000.00
TOTAL COMBINED ECONOMIC $122,805,000.00
BENEFITS

28. The mitigation exacted by the Village in the DA far exceeded the reasonable or

expected impacts of the proposed expansion on public infrastructure or facilities. BHS was forced

to agree to the Village’s extortionate and unconstitutional demands because that was the only way

the Village would approve the 2017 expansion.

29. The Village has already received or will receive all of the land and improvement

“contributions” and economic benefits.

30. BHS has at all times complied with the terms of the DA and has conducted itself in

good faith with respect to its terms. BHS intends to continue to comply with the terms of the DA

and has diligently pursued and developed the 2017 Site Plan.2

31. Despite all of BHS’s contributions, the Village has routinely failed to fulfill its legal

obligations (express and implied) under the DA to expedite permit approvals. (§ 21.2, DA).

32. In 2021, BHS continued its efforts to develop the BHS Property and provide the

Village with additional hotel options. At the time, a feasible hotel required an amendment to a

Village Charter provision that limited the Shops’ maximum height to 56 feet (that Charter

2
In 2018, the Shops sought minor amendments to the 2017 Site Plan to address parking and
circulation, which were approved under Resolution 2018-1202. The DA was also amended under
Resolution 2018-1201.

7
provision was initiated and approved by Village residents in 2006 to restrict development on the

BHS Property through height restrictions).

33. At the election held on January 26, 2021, the residents rejected BHS’s referendum

by a vote of nearly 90%, reflecting a clear bias against any further development on the BHS

Property.

C. NIMBYism and Florida’s Legislative Response—The Live Local Act

34. As the Supreme Court of Florida acknowledged in Board of County Commissioners

of Brevard County v. Snyder, 627 So. 2d 469, 472 (Fla. 1993), it is well known that zoning at the

local level can be subject to political influence and “neighborhoodism” which has the effect of

seeking to preserve the status quo of a community and avoid changes to its existing land use

regulations. Richard Babcock, an eminent land use attorney who decried this fact, also aptly noted

that “no one likes single-family zones except the people who live there.” 3 This trend is so common

that an entire vocabulary has emerged to describe this tendency of local residents who oppose all

uses which are not single-family uses and elected officials fearful of such uses – NIMBY (Not In

My Back Yard) and NIMTOO (Not in My Term Of Office).

35. NIMBYism in Florida has been most prevalent with respect to its opposition to

multi-family and/or affordable housing. Throughout Miami-Dade County, and throughout the

State of Florida, applications for multi-family uses have been vehemently opposed by local

residents and local elected officials have often accommodated their opposition. 4

3 See Deborah M. Rosenthal, Breaking the Stranglehold of Single-Family Zoning:

Strategies and First Steps Toward Modernizing Local Codes, Planning & Environmental
Law, 2013, 65:2, 9-11, DOI: 10.1080/15480755.2013.766507.
4
See Andres Viglucci and Raisa Habersham, A new law is supposed to boost affordable
housing. South Florida cities are furious, Miami Herald, August 23, 2023,
https://www.miamiherald.com/news/business/real-estate-news/article278059857.html

8
 36. While opposition to multi-family residential uses have continued, the stock of

affordable housing in Florida has dropped considerably, creating a social crisis in the state. In

2022, the nation’s top housing official declared Miami as the “epicenter of the housing

affordability crises in this country.”5 As of November 2023, Miami remained the least affordable

housing market in the United States, with an average family needing to spend 81.96% of their

income on mortgage payments and property taxes. 6

37. The Florida Legislature has taken action to resolve this issue through various

legislative acts which limit the temptation of local governments and their elected officials to ignore

property rights and succumb to the “will of the people.” For example, in 2023 the Legislature

enacted Senate Bill 718 to ensure that voters no longer had the ability to limit development through

local referenda. See §163.3167, Fla. Stat. (2023) (“An initiative or referendum process in regard

to any land development regulation is prohibited.”).

38. With this background, in March 2023, Governor DeSantis signed into law the “Live

Local Act” – comprehensive, statewide legislation designed to increase the availability of

affordable housing for Florida’s workforce. The Act seeks to spur additional development of

housing by increasing funding, providing new tax exemptions and, relevant here, preempting

certain local land development regulations.

39. Specifically, a significant component of the Act is to preempt local land

development regulations that would otherwise prevent affordable housing from being developed

on property zoned for industrial, commercial or mixed-uses.

5 See Douglas Hanks, Biden’s Housing Chief Calls Miami the ‘Epicenter of the Housing
Crisis in This Country’, Miami Herald, June 29, 2022,
https://www.miamiherald.com/news/local/community/miami-dade/article262956308.html.
6 See RealtyHop Housing Affordability Index: November 2023,
https://www.realtyhop.com/blog/affordability-index-november-2023.

9
 40. The LLA recognizes a fundamental economic truth: that affordable housing must

be subsidized in some manner. In its preemption of local government regulations, the LLA

"subsidizes" the provision of affordable housing by the grant of additional height and density to

developments in commercial, industrial and mixed-use zoning districts.

41. In a press release following the Act being signed into law, Florida Senate President

Kathleen Passidomo was quoted as stating:

The Live Local plan is the product of discussions with stakeholders over many
years. With their advice and input, we are tackling this complex issue from all
angles . . . providing new avenues for solutions in zoning, encouraging more mixed-
use developments in latent commercial areas, and enhancing public access to
information about expedited permitting and public property that may be suitable
for workforce housing.7

42. Qualifying projects under the Act bypass significant local zoning obstacles.

Specifically, in exchange for a developer’s agreement to restrict at least 40% of a project’s units

as “affordable” (i.e. to households with incomes at or below 120% of the area median income) for

a period of at least 30 years, the Act provides that a local government: (i) Must authorize multi-

family and mixed-use residential (where at least 65% of the total square footage is used for

residential purposes) in any area zoned for commercial, industrial (with limited exclusions) or

mixed-use, (ii) May not limit density of a development below the highest residential density

permitted in the jurisdiction, (iii) May not restrict the height below the highest height permitted

for either commercial or residential development within the jurisdiction within one mile of the

proposed development or three stories, whichever is higher, (iv) May not require zoning or land

use changes, special exceptions or conditional use approvals, variances, or comprehensive plan

amendments to obtain the height, density or use benefits provided for under the Act, and (v) Must

7 See https://www.flsenate.gov/Media/PressRelease/Show/4460.

10
administratively approve a proposed project if the zoning code and comprehensive plan provisions

applicable to multifamily development are met.

D. The Live Local Application

43. In direct reliance upon the Live Local Act, and in an effort to address the Village’s

workforce housing needs (including the needs of the 2,000+ people anticipated to be employed by

the Shops and its merchant partners upon the conclusion of the retail expansion currently

underway), BHS retained world-renowned architecture firm Skidmore, Owings & Merrill

(“SOM”) to design a unique work/live opportunity in the Village’s only commercial district, the

Business District.

44. BHS sought to reinforce the iconic image of the Shops and, combined with a hotel

on the Property, transform the Bal Harbour Shops into a proper village center, designed and built

with an aesthetic quality and attention to detail consistent with those manifested at the Shops.

45. SOM designed the proposed multi-family development in compliance with the Live

Local Act and, where applicable, the Village's zoning ordinances.

46. The result is a mixed-use development encompassing 528 high-end residential

units, at least 40% of which will be attainable workforce housing and 60% of which will be luxury

market-rate housing; a 70-room upscale hotel; and additional retail space.

47. On January 9, 2024, the Shops filed an application (the “Application”) with the

Village that sought administrative site plan approval pursuant to the Live Local Act (and

specifically Section 166.04151(7) of the Florida Statutes).

48. The BHS Property qualifies for multifamily residential development under the Act

because the property is located within the Village’s only commercially zoned district, the Business

District, and at least 40 percent of the residential units will be “affordable.” § 166.04151(7)(a),

11
Fla. Stat. (“A municipality must authorize multifamily and mixed-use residential as allowable uses

in any area zoned for commercial, industrial, or mixed use if at least 40 percent of the residential

units in a proposed multifamily rental development are, for a period of at least 30 years, affordable

as defined in s. 420.0004.”).

49. The project’s height and density are consistent with the highest height within one

mile and the greatest density allowed in the Village, which is found in the Village’s Ocean Front

District (“OF”). See §§ 166.04151(7)(c-d), Fla. Stat.; §§ 21-285, 21-293, Village Code.

50. The Ocean Front District, with a generous 300-foot maximum height that extends

the entire eastern border of the Village, is located directly across Collins Avenue, placing the

proposed development in context and compatible with existing development in the Village. This

is demonstrated by a rendering of the project shown below, with the existing Ocean Front high

rises shown on the Atlantic Ocean:

51. The residential community is designed to complement the Shops’ existing retail

uses and capture a segment of the Village’s workforce as permanent residents (including Village

12
employees and first responders) in a dynamic and high-quality “live, work, and play” environment

that will serve as the foundation for the continued success of the Village.

E. Instead of Administratively Processing the Application, the Village Holds a Public

Meeting and has Promised its Residents a Moratorium
52. Instead of properly reviewing the Application for administrative approval, the

Village leadership published comments pre-judging the Application, creating their own

exemptions, constraints and limitations found nowhere in the text of the Act, and communicating

their position to a Building Official who is required to make decisions free of political influence.

53. Mayor Freimark, in a classic example of attempted nullification of the law, went

on record with a statement contrary to the plain language of the Act: “I question whether it’s really

the intent of the legislation to impose the Live Local Act on a barrier island where you are limited

with challenges from sea level rise, climate change, and flooding.” 8 The Act does not create an

exemption for barrier islands.

54. Next, the Village Council placed on their January 16, 2023 agenda a Resolution

“authorizing the Village Manager to expend resources to take all necessary steps to protect the

Village in response to the Bal Harbour Shops’ 2024 submission to further expand its project.” A

copy of the Resolution as introduced and approved by the Village, together with a related Staff

Memorandum (“Staff Memo”) are attached hereto and incorporated herein as Composite Exhibit

B.

55. The Staff Memo concluded that additional funds were needed to “take whatever

steps are necessary to ensure that the Village’s quality of life is protected.” The Staff Memo and

Resolution make clear that the Village leadership considers the construction of workforce housing

8 https://www.bizjournals.com/southflorida/news/2024/01/11/mayor-concerned-about-bal-
harbour-shops-plans.html.

13
in the Village as anathema to its “quality of life,” and a risk to: (i) their “standing as a unique and

elegant community,” (ii) their “role as a luxury destination,” and (iii) “the safety and security of

our residents and neighborhood.” See Composite Exhibit B.

56. During the January 16th meeting, the Village Mayor also expressed “anger” at BHS

for submitting a Live Local Application, calling it a “shame” and a “perversion” of the Live Local

Act, and a “circumvention of an executed development agreement that will cause significant

damage to our community.”

57. Also, during the January 16th meeting, the Village Council unanimously voted to

approve funds to hire lobbyists and lawyers to fight the Application, and also instructed the Village

Attorney to investigate and pursue a moratorium to prohibit future development on the BHS

Property (the “Moratorium”).

58. As it relates to the Moratorium, the Village Attorney confirmed “that this is a

moratorium that is focused on your business zoning district. This is the only area in which this

issue will arise. And it is focused on development that is seeking [] to proceed under the live local

act.”

59. The on-the-record statements made by the Village’s elected officials and charter

officers establish that the Village intends to violate its substantive and procedural obligations under

the Live Local Act by any means available.

COUNT I – WRIT OF MANDAMUS

60. The allegations set forth in paragraphs 1 through 59 are hereby incorporated into

this Count.

61. Under well settled Florida law, a writ of mandamus against a governmental agency

is appropriate if the following elements are satisfied: (1) the petitioner has a clear and certain legal

14
right to the performance of a particular duty by a government or a representative of the

government, (2) whose performance of that duty is ministerial and not discretionary, (3) who has

failed to perform despite an adequate request, and (4) who has left the petitioner with no other

legal method for obtaining relief.

62. Mandamus is a well-recognized remedy “to enforce an established legal right by

compelling a person in an official capacity to perform an indisputable ministerial duty required by

law.” Puckett v. Gentry, 577 So. 2d 965, 967 (Fla. 5th DCA 1991); see also Fair v. Davis, 283 So.

2d 377, 378 (Fla. 1st DCA 1973) (holding that “mandamus is a remedy by which administrative

officials or agencies may be coerced to perform ministerial duties which they have a clear legal

duty to perform”). A duty or act is ministerial “when there is no room for the exercise of discretion,

and the performance being required is directed by law.” Shea v. Cochran, 680 So. 2d 628, 629

(Fla. 4th DCA 1996) (quoting Town of Manalapan v. Rechler, 674 So. 2d 789, 790 (Fla. 4th DCA

1996)).

63. As a matter of law, certain types of applications, like those for building permits and

platting, are deemed to be ministerial. “[W]here all of the legal requirements for platting land have

been met there is no residual discretion to refuse plat approval and mandamus will lie. The same

reasoning applies to approval of site plans.” City of Lauderdale Lakes v. Corn, 427 So. 2d 239,

242 (Fla. 4th DCA 1983) (emphasis added).

64. Florida’s Live Local Act imposes an unequivocal ministerial duty on the Village

such that “[a] proposed development authorized under this subsection must be administratively

approved and no further action by the governing body of the municipality is required if the

development satisfies the municipality’s land development regulations for multifamily

developments in areas zoned for such use and is otherwise consistent with the comprehensive plan,

15
with the exception of provisions establishing allowable densities, height, and land use.” See

166.04151(7), Fla. Stat. (emphasis added).

65. The Live Local Act provides the Village with no discretion with respect to

processing and approving an application that complies with the Act.

66. Unlike many municipalities throughout the State, and as further evidence of its

animus towards affordable housing, the Village elected not to adopt any ordinances or publish any

guidance relating to processing applications submitted pursuant to the Live Local Act.

67. Section 21-31 of the Village Code of Ordinances imposes a duty on the Village’s

Building Official to enforce the Village’s zoning code.

68. Pursuant to Section 21-322, the Village Manager or designee shall review site plan

applications.

69. The Application complies with both the letter and the spirit of the Act and, as such,

BHS has a clear legal right to its administrative processing by the Village Manager and Building

Official without further delay or political interference. Upon information and belief such

interference has already occurred.

70. Pursuant to Section 468.604, the Building Official’s review, processing, and

approval of the Application must be free from any interference from any person, including the

Village’s elected officials or administrative officers, such as the Village Manager and/or City

Attorney.

71. To comply with applicable Florida law, the Village must process the Application

pursuant to section 166.033, Fla. Stat., which imposes on the Village, including its Village

Manager and its Building Official, the duty to review and approve, approve with conditions, or

deny the applications within 120 days.

16
 72. To the extent that the Village does not agree to process the Application in good

faith, BHS should be allowed to seek damages, including its attorney’s fees incurred in the filing

of this action and the vindication of its rights.

73. The Village’s Moratorium is in direct contravention of: (i) the Live Local Act’s

requirement imposed on local government to administratively process and approve applications

complying with the Act, and (ii) the statutorily imposed timeframes for processing development

applications. See §§ 166.04151(7), 166.033, Fla. Stat.

74. BHS has a clear legal right to have the Application processed and approved by the

Village and BHS has no other legal method for obtaining the relief requested.

75. Pursuant to Section 166.04151(7) of the Florida Statutes, the Village has a clear

legal ministerial duty to administratively process and approve applications complying with the

Live Local Act.

76. Despite requests for review and approval, through the filing of the Application and

subsequent meetings and correspondence, the Village responded with public meetings demanding

a moratorium and has failed to fulfill its obligations under the Act.

77. Pursuant to Section 166.033 of the Florida Statutes, the Village also has a clear

legal ministerial duty to: approve, approve with conditions, or deny the application for a

development permit or development order.

WHEREFORE, BHS respectfully requests that this Court enter a writ of mandamus against

the Village, requiring an alternative writ compelling the Village to file an answer as to why the

Court should not issue a writ of mandamus ordering the Village to comply with its ministerial

duties under 166.04151(7) and 166.033, and award any further relief that the Court deems proper,

17
including an award of its reasonable attorneys’ fees and costs incurred in relation to this action, as

permitted by Florida law and Section 35.3 of the DA.

COUNT II – DECLARATORY RELIEF

78. The allegations set forth in paragraphs 1 through 59 are hereby incorporated into

this Count.

79. This is an action for declaratory relief pursuant to Chapter 86 of the Florida

Statutes. Under Section 86.021 of the Florida Statutes and well settled Florida law, any person

whose rights, status, or other equitable or legal relations are affected by a statute, municipal

ordinance, or contract may have determined any question of construction or validity arising under

such statute, ordinance, or contract, and obtain a declaration of rights, status, or other equitable or

legal relations thereunder.

80. BHS seeks a declaration of its rights under the Live Local Act, the DA, and Sections

163.3221 – 163.3243 of the Florida Statutes (the “Development Agreement Statute”).

81. Declaratory relief is necessary, justified, and timely in that BHS has filed a fully

compliant application under the Live Local Act and the Village, responding to public opposition,

is openly hostile to the very processing of the Application.

82. The Village maintains that: (i) the existence of the DA precludes BHS from

developing affordable housing under the Live Local Act; (ii) that the Village can deny the

Application based on an alleged and self-defined inconsistency with, or violation of, the DA; (iii)

that the DA contains express restrictions, covenants and/or prohibitions against the Application;

and (iv) that the Moratorium could be utilized to prohibit or deny BHS’s Application.

83. BHS disputes the Village’s assertions relating to the impact of the DA and the

Moratorium on the Application.

18
 84. BHS maintains that neither the DA nor the Development Agreement Statute restrict

or prohibit BHS’s Application.

85. Specifically, BHS maintains that the plain language of the DA: (i) does not preclude

BHS from taking advantage of later-adopted statutory development rights, and (ii) does not include

an express or implied waiver of BHS’s right to apply for a new or different development

application.

86. BHS maintains that the plain language of the Development Agreement Statute: (i)

does not preclude BHS from taking advantage of later-adopted statutory development rights, and

(ii) provides the mechanism for enforcement of an alleged violation of the DA that must be

followed by the Village to the extent a violation is alleged.

87. The Village disputes BHS’s assertions relating to the DA and the Development

Agreement Statute set forth in paragraphs 84 through 86.

88. The Village asserts that the Moratorium can be utilized to prohibit projects from

being developed within the Village utilizing the Live Local Act.

89. BHS maintains that the Moratorium is preempted by the Live Local Act and that

its enactment constitutes a violation of state law.

90. All necessary elements for the seeking of declaratory relief have been satisfied.

91. Plaintiff is legally entitled to seek declaratory relief through this action. Plaintiff

has a bona fide, actual, and present practical need for a declaration by this Court that neither the

Moratorium, the DA nor the Development Agreement Statute prohibit or restrict the Application.

92. There is a presently ascertainable set of facts and present controversy for this Court

to resolve.

19
 93. Plaintiff and Defendant have antagonistic and adverse interests in the subject matter

of this controversy.

94. The antagonistic and adverse interests relative to this controversy are all before this

Court.

95. The declaration is sought by BHS from this Court not to obtain legal advice, but to

obtain a declaration of its rights and the Village’s rights relating to the impact of the DA or the

Moratorium on the Application.

96. Section 35.3 of the DA sets forth a prevailing party attorneys’ fees provision.

97. Accordingly, Plaintiff requests that the Court enter the following declarations: (a)

that the DA does not restrict or prohibit the Application, (b) the Development Agreement Statute

does not restrict or prohibit the Application, and (c) the Moratorium is in direct contravention with,

and preempted by, Florida Statute sections 166.04151(7) and 166.033.

WHEREFORE, Plaintiff respectfully request that this Court enter judgment in their favor

and against Defendant and enter declarations (a) – (c) as stated in paragraph 97, and enter all such

relief that it deems equitable and just, including but not limited to, the award of Plaintiff’s

reasonable attorneys’ fees and costs as permitted by Florida law and Section 35.3 of the DA.

Plaintiff hereby reserves any and all rights it possesses now or in the future to pursue claims,

challenges, damages, or other remedies provided pursuant to local, or state law.

20
 Reservation of Rights Under Federal Law

BHS fully reserves all rights created by federal law to address the impermissible conduct

set forth herein, and by filing this action does not seek to waive any of these rights.

Dated: January 23, 2024 Respectfully Submitted,

SHUBIN LAW GROUP, P.A.

Counsel for Bal Harbour Shops, LLC
100 SE 2nd Street, Suite 4020
Miami, Florida 33131
Tel.: (305) 381-6060
Fax: (305) 381-9457
jshubin@shubinlawgroup.com
rlincoln@shubinlawgroup.com
idemello@shubinlawgroup.com
mgrafton@shubinlawgroup.com
eservice@shubinlawgroup.com

By: /s/ John K. Shubin

John K. Shubin
Fla. Bar No. 771899
Robert K. Lincoln
Fla. Bar No. 0006122
Ian E. DeMello
Fla. Bar No. 105097
Mark E. Grafton
Fla. Bar No. 118233

21
Exhibit A
 This instrument prepared by:
Gail 0. Serota, Esq.
Weiss Serota Helfman Cole & Bierman, P.1.
2525 Ponce de Leon Boulevard, Suite 700
Coral Gables, Florida 33134

Folio Numbers:
12-2226-006-0020
12-2226-006-0060
12-2226-006-0061
12-2226-006-0070
12-2226-002-2343
12-2226-002-1440
12-2226-032-0010

DEVELOPMENT AGREEMENT

between

BAL HARBOUR SHOPS, LISP, a Florida limited liability

limited partnership

and

BAt HARBOUR VILLAGE, a Florida municipal corpo

ration

dated iulyj’20i7

0027.109/Bal Harbour/BHS Development Agreem

ent v14
 TABLE OF CONTENTS
1. Recitals
2
2. Exhibits
2
2.1. Exhibit A — Legal Description of Existing Shops Property
2
2.2. Exhibit B — Legal Description of Church Site
2
2.3. Exhibit C— Legal Description of Fairfield Property
2
2.4. Exhibit D — Legal Description of SunTrust Property
2
2.5. ExhIbit E — Sketch Showing Locations of Buildings
2
2.6. Exhibit F Value of Owner Contributions
—
2
2.7. Exhibit C — Second Modification of Police Department Lease 2
2.8. Exhibit H — Bal Harbour Village Resolution No. 2017-1077 2
2.9. ExhIbit I Major Site Plan approved by Bal Harbour Village Resolution
—
No.
2017-1Ofl
2
2.10. ExhibIt .1 — Fairfield Property Title Exceptions
2
2.11. Exhibit K—SunTrust Property Title ExceptIons
2
2.12. ExhIbit I — Public Use Areas
2
2.13. Exhibit M — Project Encroachments
2
2.14. Exhibit N — Grant of Park Drive Utility Easement 2
3. Defined Terms
2
3.1. Attorneys’ Fees
2
3.2. Building Department
2
3.3. Business Day
2
3.4. CO ..
2
3.5. Development Approvals
3
3.6. Effective Date
3
3.7. Expansion GFA
3
3.8. FDOT. The Florida Department of Transportation
3
3.9. FInal Approval Date
3
3.10. Final CO
3
3.11. Final TCO
3
3.12. Force Majeure
3

D027.109/BaI Harbour/BH5 Development Agreement v14

 3.13. Governmental Approval
.3
3.14. Governmental Authority
3
3.15. Governmental Requirement
3
3.17. public Records
3
3.18. Reasonable
3
3.19. Substantial Completion
3
3.20. Substantial Compliance
3
3.21. TCO
4
322. Village Manager
4
4. Owner’s Representation
4
5. Description of the Project
4
5.1. Shops Expansion
4
5.2. Traffic Improvements
4
5.3. ParkIng Improvements
4
6. Summary of Owner Contributions
4
61. New Village Hail
4
6.2. New Village Hall Parking Garage
4
6.3. Conveyance of SunTrust Property
4
6.4. Infrastructure and Beautification Improvements
S
6.5. Waterfront Park
.5
6.6. Art in Public Places Contribution
5
6.7. ModificatIon of Police Department Lease in Ba) Harb
our Shops 5
7. Development Approvals
5
7.1. ARB Review
5
7.2. Comprehensive Plan Amendment for Church Site
5
7.3. ISA Recommendation
5
7.4. Major Site Plan Approval
5
7.5. Text Amendments
S
8. comprehensive Plan Amendments Based on the Evalua
tion and Appraisal Report 5
9. NewvfllageHall
6

II

C027.109/BaI Harbour/BHS Development Agreement v15

 9.1. New Village Hall meIin
e .6
9.1.1. Preliminary Design ..6
9.1.2. Construction Plans
6
9.1.3. Design and Construction Standards
B
9.1.4. Preliminary Prep Work
7
9.1.5. Use of Fairfield Property for Staging
7
9.1.6. Commencement of Construction
7
9.1.7. Duration of Construction
7
9.1.8. Failure to Timely Complete New Village Hall
7
9.2. Cost of New Village Hall
7
92.1. Owner’s New Village Hall Cost
S
9.2.2. Items included in Owner’s NW Cost
S
9.2.3. Items Not Included in Owner’s New Village Hall Cost
S
9.2.4. Finalization of New Village Hall Cost
..

9.2.5. NVH Cast and Construction Information

9
9.2.6. Reduction In New Village Hall Cost
9
9.3. Construction Contract for New Village Hall
9
9.4. Construction of Improvements
9
9.5. Village Representative
9
9.6. Change Orders
10
9.6.1. VIllage-Initiated Change Orders
10
9.6.2. Owner-initiated Change Orders
to
9.7. ResIution of New Village Hail Design and Construction
Disputes 10
9.7.1. Negotiation
10
9.7.2. Mediation
10
9.7.3. LitigatIon
11
9.7.4. Time is of the Essence
U
10. New Village Hall Garage
11
10.1. Timing of New Village Hall Garage. Owner will const
ruct 11
10.2. NVH Garage Cost
11

ill

0027.109/Gal Harbour/BHS Development Agreement viS

 10.3. Cost Savings on NVH Garage .11
10.4. Excess Parking Spaces in NVH Garage 11
10.5. Temporary Parking 11
11. Conveyance of Fairfield Property, New Village Hall, and NVH Garage it
11.1. Timing of Conveyance 12
11.2. Title Commitment 12
11.3. Due Diligence 12
11.4. Closing Deliveries 12
11.5. Cross Easements for Ingress, Egress and Access 13
U. Conveyance of SunTrust Property 13
12.1. Timing of Conveyance 13
122. Tide Commitment 13
12.3. Due Diligence 13
12.4. Maintenance of SunTrust Property 13
12.5. SunTmst Lease 14
12.6. Closing Deliveries .. 14
13. Waterfront Park Contribution and Site Plan 14
13.1. Contribution 14
13.2. Site Pbn............... .. ..

13.3. Construction of Waterfront Park 15

14. Parking Surcharge 15
14.1. Payment of Parking Surcharge to Village 15
14.2. Owner Retention of Portion of Parking Surcharge 15
15. Traffic Improvements 16
15.1. Realignment of Collins Avenue 16
15.2. FIrst Set of Traffic Improvements 16
152.1. AlA Crosswalk 16
152.2. Collins / Harding Signal Removal 16
15.2.3. Loading Area and Service Driveway 16
15.3. Second Set of Traffic Improvements 17

iv

0027.109/Bal Harbour/BHS Development Agreement v15

 13.3.1. signalized Driveway at North End of Shops .17
15.3.2. Premium Valet Parking Entry 17
15.3.3. Premium Valet Parking Exit 17
15.3.4. AlA Crosswalk 17
15.3.5. Retlming of Traffic signals 17
13.4. During All Pha5es 17
15.5. Additional Traffic Improvements after Project Completion 17
15.5.1. Harding Avenue I 96°’ Street Intersection 11
g6th
15.5.2. Collins Avenue / Street Intersection 18
15.5.3. 96k” Street at 500 Block 18
16. Infrastructure Improvements 18
17. Collins Plaza Public Space 18
17.1. Design of Collins Plaza 18
17.2. Use by Owner 18
17.3. Use of Collins Plaza by Village 18
18. Public Improvements 19
18.1. Art In Public Places 19
18.2. ResIdential Gate 19
19. Public Use Areas 19
19.1. Sidewalks
19.2. Encroachments 19
19.3. Easement Encroachment, and Maintenance Agreement 19
19.4. PedestrIan Access during Construction 20
19.4.1. Collins Avenue 20
19.4.2. 96th Street 20
19.5. Park Drive 20
20. Public Safety 20
20.1. Safety During Construction 20
20.2. Off-Duty Police Services 21
20.3. Construction Staging and Parking 21

C027.109/Bal Harbour/BHS Development Agreement v15

 20.4. LPR Cameras
.21
20.5. Noise Meters
22
21. BuildIng Department Fees and Services
22
21.1. Pa’jments in Lieu of Building Permit Fees
22
21.1.1. Voluntary Contribution Based on Estimated Constru
ction Cost 23
21.1.2. Items not included in Voluntary Contribution
23
21.1.3. True-up of Voluntary Contribution
23
21.2. Expedited Plan Review and Inspections
23
21.3. Use of Private Provider
23
22. Security for Owner’s Obligations
23
23. Taxes
24
23.1. Minimum Ad Valorem Taxes
24
23.2. Minimum Resort Taxes
24
24. Transfer Fee
25
24.1. DefinitIon of Transfer
25
24.1.1. sale of Fee Simple Interest
25
24.1.2. Sale of Controlling Interest
25
24.2. Calculation of Transfer Fee
25
24.2.1. Prior to Building Permits for 50% of the GFA
25
24.2.2. PrIor to Building Permits for All of the EFA
25
24.2.3. Prior to Final TCO
25
24.2.4. Prior to Fifth Anniversary of the Final TCO
26
24.2.5. More than Five Years After Final TCO
26
24.3. Events Not Constituting a Transfer
26
24.3.1. Transfers of Entity Interests
26
24.3.2. Mortgages
26
24.3.3. Deed in Lieu
26
24.3.4. Transfers by Secured Party
26
24.3.5. FamilyTransfers
26
24.3.6. Transfers for Estate Planning
26

vi

0027.109/Gal Harbour/Gas Development Agreement vTh

 24.3.7. Transfers to Affiliates .26
24.3.8. Eminent Domain 26
25. “Look Back’ Reporting and Mitigation
26
25.1. First Look Back Reports 27
25.2. First Look Back Mitigation 27
25.3. Second Look Back Reports 27
25.4. Second Look Back Mitigation Required 27
26, indemnIfication 27
26.1. Owner’s Obligation to Indemnify 27
26.1.1. Approvals 28
26.1.2. Work on Village Property — 28
26.1.3. Negligence
26.1,4. Damage to Third Parties 28
26.1.5. Failure to Perform 28
26.1.6. Material Breach 28
26.2. LegalAdion 28
262. Limitation 28
26.4. Survival 28
27. Insurance
29
27.1. Evidence of Insurance
29
27.2. Cancellations and Renewals 29
28. Default Opportunity to Cure, and Remedies 29
28.1. Defaults Generally 29
28.2. Defaults by Owner
29
28.3. Defaults by Village 29
29. Notices — 30
29.1. Notice tD Owner 30
29.2. Notice to Village 31
30. Multiple Ownership of Shops Property
31
31. Term of Agreement
32

vii

0027.109/Ba) Harbour/BHS Development Agreemsnt v15

 32. Enforcement of Agreement
.32
33. Authorization to Withhold Permits and Inspections
32
34. Development Rights
32
34.1. Permitted Development Uses, Building Intensities and
Heights 32
34.2. ReservatIon of Development Rights
33
35. Miscellaneous Provisions
33
35.1. Adjustment of Deadlines
33
35.2. Amendments
33
35.3. Attorneys’ Fees
33
35.4. Authority
34
35.5. Compliance with Governmental Requirements
— 34
35.6. Conditions of Resolution No. 2017.1077; SIte Plan
34
35.7. Construction of Agreement
34
35.8. Counterparts
34
35.9. Entire Agreement
34
35.10. Force Majeure
34
35.11. Governing law
34
35.12. Recording
34
35.13. Sections and Subsections
34
35.14. SeverabIlity
34
35.15. Successors and Assigns
35
36. Waiver of Jury Trial
35

viii
C027.iO9/Bal Harbour/BH5 Development Agreement viS

ml
 ______
______
______
______
_,

UEVELOPMENT AGREEMENT
This Development Agreement (“Agreement”) dated
is
between SAl. HARBOUR SHOPS, LLIP, a Florida limited liability limited partner
ship (“OwneC)
and BAL HARBOUR VILLAGE, a Florida municipal corporation (“Village”).

RECITALS:
Owner is the owner of the real property located in Sal Harbour Village
, Miami-Dade
County, Florida, and more particularly described in Exhibit A to this Agreem
ent (“Existing Shops
Property”). The Existing Shops Property is improved with a high-end shoppin
g center known as
Sal HarbourShops (“Shops”).

Owner is also the owner of the real property located in Bal Harbour Village
, Miami-Dade
County, Florida, which was formerly the site of the Church by the Sea,
and which is more
particularly described in Exhibit B to this Agreement (“Church Site”).
Owner wishes to
incorporate the Church Site as part of the Shops.

BHS-FM, LLC, a Florida limited liability company owned and controlled by

Owner, is the
owner of the real property located in Bal Harbour Village, Miami Dade County,
Florida, and more
paiticularly described in Exhibit C to this Agreement “Fairfield Property”).
The Fairfield Property
is a vacant, unimproved parcel.

Sal Harbour Shops Tract A, LLC, a Florida limited liability company owned
and controlled
by Owner, is the owner of the real property located in Sal Harbour Village
, Miami Dade County,
Florida, and more particularly described in Exhibit D to this Agreement (“Sunrr
ust Property”).
The SunTrust Property Is improved with an office building.

BHS-FM, LLC and Sal Harbour Shops Tract A, LLC are each an “Owner Subsidi
ary.”
The Existing Shops Property and the Church Site, are collectively the “Shops Propert
y.”
Owner has submitted a major site plan application to the Village for approv
al to expand
the Shops in accordance with Section 21 of the Village’s Code of Ordinances
(“Village Code”). The
proposed expansion of the Shops, including modifications to the existing
Shops facilitIes, Is
referred to as the “Project.”

Pursuant to Section 21-322 of the Village Code, Village requires Owner to

enter into this
Agreement In order to mitigate any potential Impacts that the proposed Project
may have on the
Village.

This Agreement is a Development Agreement pursuant to the “Florida Local

Government
Development Agreement Act,” Florida Statutes Sections 163.3220-163.3
243.
 In consideration of the premises and the mutual covena
nts herein contained, and for
other good and valuable consideration, the receipt
and sufficiency of which are hereby
acknowledged, Village and Owner hereby mutually covena
nt and agree as follows:

AGREEMENT:

1. RecItals. The recitals set forth above are true and correct
and are hereby made a part of
this Agreement.
2. Exhibits. The following exhibits (each, an “Exhibit”) are
attached to and made a part of
this Agreement:
2.1. Exhibit A — Legal Description of Existing Shops Property
2.2. Exhibit B — Legal Description of Church Site
2.3. ExhIbit C—Legal Description of Fairfield Property
2.4. Exhibit D Legal Description of Suntrust Property
—

2.5. ExhIbit E — Sketch Showing Locations of Buildings

2.6. Exhibit F — Value of Owner Contributions
2.7. ExhIbit C — Second Modification of Police Department Lease
2.8. Exhibit H — Sal Harbour Village Resolution No.2017-1077
2.9. ExhIbit I — Major Site Plan approved by Sal Harbour Village Resolu
tion No.2017-
1077
2.10. Exhibit I — Fairfield Property Title Exceptions
2.11. Exhibit K SunTrust Property TItle Exceptions
—

2.12. ExhIbit L— Public Use Areas

2.13. Exhibit M — Project Encroachments
2.14. Exhibit NGrant of Park Drive Utility Easement
—

3. Defined Terms. Terms used in this Agreement are defined

in the section or subsection
where the term first appears. The following defined terms
are used throughout this
Agreement.
3.1. Attorneys’ Fees. All reasonable attorneys’ fees, expenses,
and costs incurred by
a party in connection with any matter arising under this Agreem
ent, including,
without limitation, paralegal fees, in-house attorneys’ fees,
and all fee5, taxes,
costs and expenses incident to trial, appellate, bankru
ptcy and post-judgment
proceedings.
3.2. Building Department. The Sal Harbour Village Building
Department.
3.3. Business Day. Any day that Bal Harbour Village Hall is open
for business.
3.4. CO. A certificate of occupancy issued or to be issued by the
Village.
3.5. Development Approvals. The Development Approvals referenced in Section 7 of
this Agreement
3.6. Effective Date. The date this Agreement has been signed by Owner and Village.
3.7. Expansion GFA. The GFA being added to the Shops.
3.8. FDDT. The Florida Department of Transportation.
3.9. FInal Approval Date. The date upon which all of the Development Approvals
become final and non-appealable.
3.10. Final CO. The date upon which the CO is issued for the last permit outstanding for
the Project.
3.11. Final TCO. The date upon which the TCO is issued for the last of buildings F,G, H
and Z as shown on Exhibit E.
3.12. Force Majeure. Any strike, lockout, act of God, inability to obtain labor or
materials due to governmental restrictions, riot, war, act of terrorism, hurricane,
flood, declaration of a state of emergency under Florida Statute Section 252.363
affecting the geographic area of Bal Harbour, or similar cause beyond the
reasonable control of a party.
3.13. Governmental Approval, Any license, permit, certificate, consent, authorization,
orother approval issued by a Governmental Authority, including any Development
Approval.
3.14. Governmental Authority. Any federal, state, county, municipal or other
governmental department, entity, authority, commission board, bureau, court,
agency, or any instrumentality of any of them.
3.15. Governmental Requirement. Any law, enactment, statute, code, ordinance, rule,
regulation, judgment, decree, writ, injunction, order, permit, certificate, license,
authorization, agreement, or other direction or requirement of any Governmental
Authority now existing or hereafter enacted, adopted, promulgated, entered, or
issued.
3.16. Gross Floor Area (GFA). Gross Floor Area, as defined in the Bal Harbour Zoning
Code.
3.17. Public Records. The Public Records of Miami-Dade County, Florida.
3.18. Reasonable. With respect to conduct under this agreement, the efforts that a
reasonable person in the position of the applicable party would use to engage in
that conduct effectively.
3.19. Substantial Completion. Completion (of construction or of any other task)
sufficient to achieve the essential purpose of the task.
3.20. substantial Compliance. Compliance with the substantial or essential
requirements of something (such as a statute or contract) that satisfies its purpose
or objective even though its formal requirements are not fully met
 3.21. TCO. A temporary certificate of occupancy issued or be
to issued by the Village.
3.22. Village Manager. The Village Managerof Bal Harbour or
his orher duly authorized
designee.
4. Owner’s Representation. Owner hereby represents that
It is the sole owner and holder
of fee simple title to all parcels of land that are the
subject of the major site plan
application submitted by Owner to the Village for
approval to expand the Shops in
accordance with Section 21 of the Village’s Code
of Ordinances. There Is no other
property owner or other party (including mortgagees, lienors,
or tenants) whose joinder
or consent to the site plan application or to this Agreement
is legally required.
S. Description of the Project. The Project includes the
following components:
5.1. Shops Expansion. Expansion and enhancement of the Shops
with the addition of
up to 350,000 square feet of GFA, so that the Shops will
Include a total of up to
860,000 square feet of GFA. The expansion may
include an expanded Neiman
Marcus, a new Barney’s, additional In-line boutique
retail space, additional
restaurants, and additional parking. The Project includes
the incorporation of the
Church Site into the Shops, and will result in a floor area
ratio not to exceed 1.22.
Building heights will be in accordance with the zoning
of the Sal Harbour B
Business District,
5.2. Traffic Improvements. New access points to the Shops
from Collins Avenue and
improved circulation on Collins Avenue and 96th Street;
traffic and roadway
improvements to both Collins Avenue and 96th Street;
and improvements to the
public rights-of-way around the Shops, including the sidewa
lks, landscaping and
other associated improvements.
5.3. Parking Improvements. The Project will include a minimu
m of 2,400 permanent
parking spaces above and below grade in order to achieve
a parking ratio of not
less than 3.1 spaces per 1,000 square feet of 90% of the
GFA, and no less than 385
additional flex parking spaces.
6. Summary of Owner Contributions. Owner agrees to make
the following contributions
(collectively, TMContributions”) to the Village. The value of
these Contributions is set forth
in Exhibit F. Each of these Contributions is addressed in detail
in other sections of this
Agreement.
6.1. New Village Hall. Construction and delivery to the Village
of a new municipal
center (“New Village Hall”) on the Fairfield Property.
6.2. New Village Hall Parking GaTage. Construction and deliver
y to the Village of an
underground parking structure to be located under portion
s of one or more of the
following: (I) the Fairfield Property, (ii) the Shops Property,
and (iii) Gal Cross Drive
(“NVH Garage”).
6.3. Conveyance of SunTrust Property. Conveyance to
the Village of the SunTrust
Property, including assignment to Village of all leases of
the SunTrust Parcel.
 6.4. Infrastructure and Beautification Improvements. Construction and installation
of infrastructure and beautification improvements on public property and on
portions of the Shops property adjacent to public property at a cost of
approximately $9.375 million, as shown on the Sal Harbour Shops Enhancement
Plans prepared by Zyscovich Architects, Project No. 112DBHSE, dated January 9,
2017, as same may be amended during the Village approval process.
6.5. Waterfront Park. Contribution to the Village of (i) the sum of $3.5 million to be
used by the Village for construction of a waterfront park on property owned by
the Village (“Waterfront Park”), and (H) preparation and delivery to the Village of
a site plan for the Waterfront Park.
6.6. Art in Public Places Contribution. A contribution of $1 million to the Village to be
used for the installation of art in public places.
6.7. Modification of Police Department Lease in Sal Harbour Shops. Within three
Business Days after the Final Approval Date, Owner and the Village will execute
and deliver a Second Modification of Police Department Lease in the form
attached as Exhibit 6. The Second Modification provides for an extension of the
existing lease of space in the Shops to the Village Police Department at no cost to
Village for rent CAM, or any other charges, until 90 days after conveyance of the
New Village Hail to the Village.
7. Development Approvals. The development of the Project will require the following
reviews and approvals (collectively, “Development Approvals”). The date upon which
the last of the Development Approvals become final and non-appealable will be referred
to as the “Final Approval Date.”
7.1. ARB Review. Advisory review by the Village’s Architectural Review Board
of
Owner’s major site plan application for the Project in accordance with Section 21-
322(d) of the Village Code.
7.2. Comprehensive Plan Amendment for Church Site. A small scale map amendment
to the Village’s comprehensive plan in connection with the change in use of the
Church Site.
7.3. LPA Recommendation. Recommendation by the Local Planning Agency (“LPA”)
on the comprehensive plan amendments and the text amendments.
7.4. Major Site Plan Approval Approval of the major site plan and the related
Development Agreement for the Shops Expansion.
7.5. Text Amendments. Approval by the Village Council of text amendments to the
Village Code to allow for the development of the Project
8. Comprehensive Plan Amendments Based on the Evaluation and Appraisal Report
The
parties acknowledge that the Village will be required to adopt amendments to
its
Comprehensive Plan based on Its Evaluation and Appraisal Report (“EAR”), and file those
EAR-based amendments with the Florida Department of Economic Opportunity prior
to
Issuance of any building permits for the Project. The Village agrees to schedule the EAR-
 based amendments for a hearing within a reasonable period of time followi
ng the
adaption of the Development Approvals. The parties are not aware of any Impedi
ments
to the adoption of the amendments to the Village’s Comprehensive Plan
within a
reasonable period of time. The parties do not consider site preparation and constru
ction
of a boundary wall on the Existing Shops Property consistent with the Village
Code and
existing Comprehensive Plan to be affected by this paragraph.
9. New Village Hall. Owner agrees to cause (i) the design and construction of New Village
Hall on the Fairfield Property, and (II) the conveyance of the Fairfield Property and
the
New Village Hall to the Village as expeditiously as possible in
accordance with the
following terms and conditions:
9.1. New Village Hall Timeflne.
9.1.1. Preliminary Design. Upon issuance of a building permit for the final
building of the Project to be permitted, Owner will send notice to
Village that Village has 24 months to deliver construction plans for New
Village Hall. Village will work with either Zyscovich Architects, which is
the Owner’s architect, or with an architect selected by Village and to
be paid for by Owner, to develop design and construction plans within
the 24-month period. After issuance of the building permit for the final
building of the Project, Owner will provide to the Village one or more
sets of renderings for the proposed design and appearance of New
Village Hall. The Village will hold up to five public meetings to discuss
the proposed design and appearance of New Village Hall. The Village
Council will re’siew and approve the preliminary design of New Village
Hall In Its proprietary capacity prior to the processing of the design
plans in accordance with the Village’s standard regulatory process.
9.1.2. ConstructIon Plans. Once the design of New Village Hall has been
approved through the Village’s regulatory process, Owner will prepare
the construction plans and specifications for the approved design and
submit them to the Village Manager for preliminary review and
approval. The Village Manager will provide comments within 10
Business Days after receipt of the New Village Hall plans. Owner will
revise the plans and specifications to address the Village Manager’s
comments. Thereafter, Owner will comply with the Village’s standard
regulatory process for approval of the construction plans and
specifications.
9.1.3. Design and Construction Standards. Owner will design and construct
New Village Hall as a sustainable building meeting the standards of the
Florida Green Building CouncIl or similar standards. New Village Hall
must be rated to withstand a Category S hurricane, and must be
designed, planned and constructed as Class A office space.
 9.1.4. Preliminary Prep Work. Owner will make a reasonable effort
to
prepare the underground portions of the New Village Hall site and
the
NVH Garage site for construction at the same time that the Owner
prepares the underground portion of the Shop’s proposed
north
parking garage shown on Exhibit E.
9.1.5. Use of Fairfield Property for Staging. Owner may use the Fairfiel
d
Property for the staging of Project construction prior to the
commencement of construction of New Village Hall.
9.1.6. Commencement of Construction. IF the Village timely approves
the
design of New Village Hall and issues the building permit for
New
Village Hall, the Owner will commence construction of New Village Hall
upon the issuance of tenant TCOs for 85% of the square footage
available for lease in buildings F, C, H and Z (as shown on Exhibit
E),
but no later than eight years after issuance of the first building permit
for any portion of the Project. The date that construction of New
Village Hall commences will be the “NVH Commencement Date.”
9.1.7. Duration of Construction. Owner will complete construction of
New
Village Hall no later than 30 months after the NVH Comme
ncement
Date, subject to extension due to Village change orders as describ
ed in
Section 9.6.2. If, however, the design of New Village Hall causes
the
estimated construction time to be longer than 30 months
, as
determined by the average timeframe of construction bids receive
d by
Owner, then the parties will reasonably determine whether to extend
the construction time period, or modify the design of New Village
Hall,
or both. Owner acknowledges that the timely commencement
and
completion of New Village Hall is of the utmost importance
to the
Village, and isa significant inducement for the Village to enter into
this
Agreement.
9.1.8. Failure to Timely Complete New Village Hall. IF Owner
has not
obtained a TCO for New Village Hall within 3D months after
the NVH
Commencement Date, the Village may, at its option, make
a claim
underthe payment and performance band forthe construction
of New
Village Hall, provided that the Village first sends Owner written notice
that VIllage intends to make a claim under the payment
and
performance bond if the TCO has not been obtained within
90 days
Owner’s receipt of the notice. In addition, if the TCO for New Village
Hall Is not issued within 30 months of the NVH Commencemen
t Date,
Owner shall assign to Village the liquidated damages set forth
in the
construction contract for New Village Hall, as required in Section
9.3.
9.2. Cost of New Village Hail. Owner will be responsible for all costs
and expenses for
the design and construction of New Village Hail, up to the “Owne
r’s NVH Cost”
defined below.
9.2.1. Owner’s New Village Hall Cost Owner and Village agreed in February
2016 that the cost of New Village Hall would be $9.6 million. The $9.6
million cost was based on a construction cost of $281.00 per square foot,
and a building square footage of 34,164. Because the timing for the
construction of New Village Hall has changed, Owner and Village agree that
the cost of New Village Hall will be the 2016 estimated cost of $9.6 million,
as increased (but not decreased) by the percentage change in RS Means
Building Construction Cost Data for Commercial Office New Construction
in Miami as shown on the R5 Means website between the first quarter of
2016 and the most current quarter information available at the time
Owner submits the construction plans for New Village Hall (“RS Means
Percentage Increase”). The estimated $9.6 million cost of New Village
Hall, as increased by the ItS Means Percentage Increase, is the “Owner’s
NVH Cost” The 2016 per square foot cost and square footage of New
Village Hall contained in this paragraph are included only to show how the
$9.6 million 2016 costwas calculated and are notto be used in determining
either the cost per square foot cost or square footage of New Village Hall
at the time the Increase to the $9.6 millIon dollar 2016 cost of New Village
Hall is calculated. If ItS Means no longer provides the Information
necessary to calculate the increased cost of New Village Hall at the time
the building permit for the final building of the Project is issued, Village and
Owner shall jointly agree upon an alternative index.
9.2.2. Items Included in Owner’s NVH Cost. The Owner’s NVH Cost will include
the following hard and soft costs only: architect and engineering fees
Incurred after the Final Approval Date; mobilization costs; construction
costs; furniture, fixtures and equipment costs; landscaping and site
improvement costs; and the cost of the Village Representative (defined
below). Owner will keep the Village informed of any changes In the cost
of New Village HaIl.

9.2.3. items Not included in Owner’s New Village Hall Cost. The Owner’s NVH
Cost will not include any application fees, permitting fees, legal fees,
accounting fees, financing fees, overhead or any other fees or charges.
The Village will be responsible for the application and permitting fees for
New Village Hall.

9.2.4. FinalizatIon of New Village Hall Cost. if at the time Owner is ready to sign
a construction contract with a general contractor (“NVH Contractor”) for
New Village Hall (“NVH Construction Contract”), the actual cost of New
Village Hall Is higher than the Owner’s NVH Cost, Owner will cause the NVH
Contractor to propose value engineering alternatives to lower the cost of
New Village Hall to the Owner’s NVH Cost, If the Village Manager does not
wish to accept the value engineering alternatives proposed by the NVH
Contractor, the Village Managerwill have a period of 60 days after receipt
 of the value engineering alternatives to schedule a Village Council meeting
for adoption of a resolution whereby the Village either agrees to pay the
excess cost of New Village Hall or authorizes changes to the New Village
Hall construction plans to reduce the cost of New Village Hall to Owner’s
NVH Cost.

9.2.5. NVH Cost and Construction Information. During the period of

construction of New Village Hall, Owner wIll keep the Village Manager
informed of all construction and cost-related issues. Owner will promptly
provide Village with copies of all requisitions, change orders, and any other
documentation affecting the cost of New Village Ha)).

9.2.6. ReductIon in New Village Hall Cost. If the construction of New Village Hall
costs less than Owner’s NVH Cost, Owner will pay the excess funds (i.e.,
the difference between the Owner’s NVH Cost and the actual construction
cost of New Village Hall) to the Village at the time of the transfer of New
Village Hall to the Village. Village may use the excess funds for any purpose
desired by the Village.

9,3. Construction Contract for New Village Hall. Prior to Issuance of a building permit
for the construction of New Village Hall, Owner will submit to the Village Manager
for the Village Manager’s review and approval a copy of the NVH Construction
Contract. The Village Manager will not unreasonably withhold or delay his
approval of the NVH Construction Contract as long as it provides for the
construction of New Village Hall as a Class A office building; provides appropriate
assignable construction warranties; provides for the assignment of delay damages
to the Village; and establishes construction standards, guidelines, and procedures
appropriate for the construction of a public building abutting a major public right-
of-way. The Village Manager will review and either approve or request changes to
the NVH Construction Contract within 10 Business Days after receipt Owner shall
cooperate with the Village Manager in order to address any reasonable changes
to the NVH Construction Contract requested by the Village Manager.
9.4. Construction of Improvements. Owner will ensure that the construction of New
Village Hall is performed in a good and workmanlike manner, in accordance with
all Governmental Requirements and the NVH Construction Contract
9.5. Village Representative. The Village will designate a representative for the
construction of New Village Hall (“Village RepresentatIve”), who may, during
normal business hours, visit, inspect, and appraise the construction of New Village
Hall and any materials, contracts, records, plans, specifications and shop drawings
relating to New Village Hall, whether kept at Owner’s offices or at the construction
site or elsewhere. Owner agrees to notify the Village Representative of meetings
among Owner, Owner’s representative, the general contractor, any
subcontractors, or any subset of this group, and the Village Representative will be
 entitled to attend such meetings, Owner agrees to cooperate with the
Village
Representative, and to make available to the Village Representative, upon request
by the Village, daily log sheets covering the period since the Immed
iately
preceding inspection showing the date, weather, subcontractors on the job,
number of workers and status of construction.
9.6. Change Orders.
9.6.1. Village-initiated Change Orders. Village will have the right to request
changes to the design or construction of New Village Hall and the NVH
Garage by submitting a change order to Owner. All change orders must be
In writing. Owner will submit Village’s change order to the NVH Contractor
to obtain a cost for the change order and the amount of additional
construction time, If any, required as a result of the change order. Owner
will notify Village of the cost and additional time required to Implement
the change order. If Village elects to proceed with the change order, (I)
Village will be responsible forthe additional cost resulting from the change
order to the extent that it increases the cost of New Village Hall to more
than the Owner’s NVH Cost, and (ii) the deadline for the completion of
New Village Hall may be extended by the additional time required to
implement the change order, if agreed to by the parties.
9.62. Owner-Initiated Change Orders. The Village Manager’s written approv
al
will be required for any change order other than those requested or
initiated by the Village. Village Manager’s approval of Owner’s change
orders will not be unreasonably withheld or delayed, but such change
orders shall not increase the cost of New Village Hall to the Village or
extend the time for completion of New Village Hall.

9.7. Resolution of New Village Hall Design and Construction Disputes.

9.7.1. Negotiation. In the event of any dispute, claim, question, or disagre

ement
arising from or relating to the design arid/or construction of New Village
Hall, the parties will use their best efforts to settle the dispute, claim,
question, or disagreement. To this effect, Owner and Village agree to
consult and negotiate with each other in good faith and, recognizing their
mutual interests, attempt to reach a just and equitable solution
satisfactory to both parties.

9.7.2. Mediation. If the parties are unable to negotiate a resolution of

their
dispute within a period of five Business Days, then, upon notice by either
party to the other, the parties agree to try in good faith to settle
the
dispute through an expedited mediation proce5s administered by a
mediator agreed upon by both parties before resorting to litigation. If a
party fails to respond to a written request for mediation within three
Business Days after service or fails to participate In any scheduled
 mediation conference, that party shall be deemed to have waived
its right
to mediate the issues in dispute.

9.7.3. Litigation. If the mediation does not result In settlem

ent of the dispute
within five Business Days after the initial mediation confere
nce, or if a
party has waived its right to mediate any issues in dispute,
then any
unresolved controversy or claim arising out of or relating to
the design
and/or construction of New Village Hall, or thIs contract shall
be settled
through court proceedings.

9.7.4. Time is of the Essence. Village and Owner agree that time
is of the essence
for all decisions regarding the design and construction of New
Village Hall.
The parties agree to avoid costly and unnecessary delays related
to any
dispute, and agree that any dispute resolution process regardi
ng New
Village Hall will be conducted on an expedited basis.
10. New Village Hall Garage.
10.1. TimIng of New Village Hall Garage. Owner will construct
the NVH Garage at the
same time as it constructs New Village Hall. Owner acknowledges
that the timely
commencement and completion Df the NVH Garage at the same
as New Village
Hall is constructed and completed is of the utmost importance
to the Village, and
is a significant inducement for the Village to enter into this Agreem
ent.
10.2. NVH Garage Cost. Owner will be responsible for all of the
costs and expenses for
the design and construction of the NVH Garage. The NVH Garage
will consist of
approximately 40,000 square feet of underground parking
, containing a minimum
of 85 spaces. Owner anticipates that the cost of the NVH Garage will
be $6 million;
however, Owner will be responsible for all costs of constructing
the NW Garage
other than those resulting from change orders requested by the
Village.
10.3. Cost Savings on NVH Garage. If Owner is able to comple
te construction of the
NVH Garage with 85 spaces for less than $5 million, Owner will
be entitled to the
benefit of any cost savings in the construction of the NW Garage
.
10.4. Excess Parking Spaces in NVH Garage. In the event that
the NVH Garage and the
Shops North Garage are connected to each other and more than
85 parking spaces
are constructed In NVH Garage, Owner may utilize the excess
spaces and count
them as part of the Shops’ required parking spaces.
10.5. Temporary Parking. During the period of time between
the issuance of a building
permit for the construction of the Waterfront Park by the
Village and the
conveyance of the NW Garage to the Village, Owner agrees to
provide 40 parkIng
spaces in the Shops parking garage then in operation for use by
Village employees
free of charge.
11. Conveyance of Fairfield Property, New Village Hall, and NVH
Garage.
 11.1. Timing of Conveyance. Owner will cause the Owner Subsidiary to convey
the
Fairfield Property and New Village Hall to the Village within 10 Business Days after
issuance of the TCO for New Village Hall. If a TCO has been issued for the NVH
Garage prior to or at the same time the TCO Is issued for New Village Hall, Owner
will convey the NVH Garage to the Village at the same time as the Fairfield
Property and New Village Hail are conveyed. If the NVH Garage does not have a
TCO at the time the TCO is issued for New Village Hall, Ownerwill convey the NVH
Garage within 10 Business Day after the TCO has been issued for NVH Garage,
subject to all other provisions of SectIon 11. The Owner Subsidiary will convey
good and marketable title to the Fairfield Property, New Village Hall, and the NVH
Garage to the Village by special warranty deed, free and clear of any
encumbrances other than those set forth in Exhibit J. Village agrees that
the
Fairfield Property will be used for municipal purposes only.
11.2. Title Commitment Not les5 than 90 days prior to the conveyance to
the Village
of the Fairfield Property and any other property upon which NVH Garage has been
constructed Owner will provide Village with a title commitment (“Title
,

Commitment’) for an owner’s title insurance policy (“Title Policy”) to be issued

by a title Insurance company and title agent designated by Owner and accepta
ble
to Village, insuring the Village’s title to the Fairfield Property, New Village Hall,
and the NVH Garage in an amount equal to the sum of (I) $10 million for the
Fairfield Property, (ii) the value of any additional land upon which the NVH Garage
is located, as reasonably determined by Owner, and (III) the final cost of New
Village Hall and the NVH Garage.
11.3. Due Diligence. Not less than 90 days prior to the conveyance to the Village
of the
Fairfield Property and any other property upon which NVH Garage has been
constructed Owner will provide Village with all of the due diligence materials
,
for
the Fairfield Property and any additional NVH Garage property that would
be
required by a prudent purchaser of commercial real estate, including but not
limited to, a Phase I environmental 5ite a5sessment {“ESA”) certified to the Village;
a Phase II E5A if recommended by the Phase I ESA; and a current survey showin
g
all improvements certified to the Village. If the ESA for either the Fairfield
Property or for any additional NVH Garage Property, or both, show evidenc
e of
any environmental contamination, Owner or the Owner Subsidiary will
be
responsible for the removal of the contamination atits sole expense in accorda
nce
with appiicable Governmental Requirements.
11.4. Closing Deliveries. At the closing on the conveyance, Owner or Owner Subsidi
ary
will do the following:
11.4.1. Assign to the Village all construction warranties;
11.4.2. Deliver to the Village complete sets of the as-built plans and
specifications for New Village Hall and the NVH Garage In both paper and
electronic formats;
 11.4.3. Deliver to the Village all construction manuals, keys, codes,
and other
documents and Information required in connection with
the use and
operation of New Village Hall and NVH Garage; and
11.4.4. Execute, deliver and record all closing documents
required by this
Agreement and by the Title Commitment.
11.4.5. Pay all closing costs (except for VUlage’s Attorneys’
Fees) in connection
with the conveyance of the Fairfield Property, New Village
Hall, and the
NVH Garage, including the cost of the Title Policy.
11.5. Cross Easements for ingress, Egress and Access. In the event
that the NVH Garage
and the Shops North Garage are connected to each other,
at the time of the
conveyance of the Fairfield Property to the Village, Owner
and Village will enter
into a cross easement agreement between the NVH Garage
and the Shops North
Garage.
12. Conveyance of SunTrust Property.
12.1. TimIng of Conveyance. Upon completion of permit-ready constru
ction drawings
for the Waterfront Park, the Owner will cause the Owner Subsidi
ary to convey to
the Village good and marketable title to the SunTrust Property
by special warranty
deed, free and clear of all encumbrances other than those
set forth on Exhibit K.
Village agrees that upon the termination or expiration of the
SunTrust Lease, the
Suntrust Property will be used for municipal purposes only.
12.2. Title Commitment. Not less than 90 days prior to the
conveyance to the Village
of the SunTrust Property, Owner will provide Village with
a title commitment
(“Title CommitmenC) for an owner’s title insurance policy (“Title
Policy”) to be
issued by a title insurance company and title agent designa
ted by Owner and
acceptable to Village, in5uring the Village’s title to the
SunTrust Property in the
amount of $12,750,000.00.
12.3. Due Diligence. Not less than 90 days prior to the convey
ance to the Village of the
SunTrust Property, Owner will provide Village with all
of the due diligence
materials for the SunTrust Property that would be require
d by a prudent
purchaser of commercial real estate, including but not
limited to, a Phase I
environmental site assessment (“ESA”) certified to the
Village; a Phase II ESA if
recommended by the Phase I ESA; and a current surveyshowing
all improvements
certified to the Village. If the ESA for the SunTrust Property shows
evidence of any
environmental contamination, Owner or the Owner Subsidi
ary will be responsible
for the removal of the contamination at its sole expense
in accordance with
applicable Governmental Requirements.
12.4. Maintenance of SunTrust Property. Owner will
enforce the provisions for the
SunTrust Lease regarding the maintenance of all improvements
on the SunTrust
Property in the condition existing on the Effective Date.
 12.5. SunTwst Lease. Owner will not allow or agree to any modifications of the lease
encumbering the SunTrust Property (“SunTrust Lease”) between the Effective
Date and conveyance of the SunTrust Propertyto Village unless such modifications
are approved in writing by the Village Manager.
12.6. Closing Deliveries. At the closing on the conveyance of the SunTrust Property,
Owner will cause the Owner Subsidiary to do the following:
12.6.1. Assign to the Village all leases and rents due under the Suntrust Lease,
with rents to be prorated between Owner Subsidiary and Village as of
the closing date;
12.6.2. Deliver to Village an estoppel certificate in a form reasonably acceptable
to the Village, signed by the tenant under the SunTrust Lease.
12.6.3. Transfer all security deposits to Village;
12.6.4. To the extent that there are any service contracts or maintenance
agreements In effect for the SunTrust Property to which the Owner
Subsidiary isa party, Owner will cause the Owner Subsidiary to as5ign to
the Village such service contracts and maintenance agreements
acceptable to Village (with Owner Subsidiary to terminate or cancel any
such contracts or agreements not assigned to the Village);
12.6,5. DelIver to the Village all construction manuals, keys, codes, and other
documents and information required in connection with the use and
operation of the SunTrust Property;
12.6.6. Execute, deliver and record all closing documents required by this
Agreement and by the Title Commitment; and
12.6.7. Pay all closing costs in connection with the conveyance of the SunTrust
Property (other than the Village’s Attorneys’ Fees), including the cost of
the Title Policy.
13. Waterfront Park Contribution and Site Plan.
13.1. ContributIon. Within 90 days after the Final Approval Date, Owner will pay to
Village the sum of $3.5 million by wire transfer to the Village’s account
(“Waterfront Park Contribution”) to be used by the Village to construct
the
Waterfront Park.
13.2. Site Plan. Upon request by the Village, Owner, at Owner’s expense, shall cause
Zyscovich Architects or an architect designated by Village and to be paid for
by
Owner (“Architect”) to develop a site plan for the Waterfront Park. The site plan
will include elevations, landscaping, colors, and materials. The Architect shall
attend the following public meetings pertaining to the design of a site plan for the
Waterfront Park:
 13.2.1. An initial workshop where three design options for Waterfront Park are
presented, feedback is received from the public, and a preferred design
is identified;
13.2.2. A second workshop where the architect presents a site plan for the
preferred design, and feedback is received from the community and the
Village Council;
13.2.3. A final workshop for public review and comment on the site plan;
13.2.4. An Architectural Review Board meeting where the site plan will be
reviewed; and
13.23. A Village Council meeting where the final version of site plan is presented
to the Council for approval.
13.3. Construction of Waterfront Park. Village will be responsible for paying for
and
performing the construction of Waterfront Park.
14. Parking Surcharge. Owner will impose a $1.00 parking surcharge (“Parking
Surcharge”)
on each parking transaction at the Shops; (i.e., each parking ticket issued to
a visitor
entering the Shops parking garage). The Parking Surcharge will only be applica
ble to BAS
customers and public users of the garage. It is expressly understood
that the Parking
Surcharge will not be applicable to Owner and its family members, employees
of Owner,
tenants of the Shops, employees of tenants of the Shops, or tickets validate
d or otherwise
waived by either the Owner’s executive offices or the Church. The Parking
Surcharge
amount is a fixed rate and cannot be unilaterally modified by the Village.
14.1. Payment of Parking Surcharge to Village. The Parking Surcharge
will be
implemented within 30 days after the issuance of the TCO for the new
parking
garage structure fronting 96Lh Street. The Village will use the Parking Surcha
rge
funds for parking and multimodal mobility initiatives or any other munici
pal
purposes, at the VIllage’s discretion. The Village will at all times have
the right to
review the Owner’s parking reports to verify the amount of the Parking
Surcharge
being remitted to the Village. The Parking Surcharge records provided
by the
Owner will be reviewed by an independent auditor and will be handled
in a
manner similar to the handling of Resort Tax payments by the Village. The
Parking
Surcharge will survive the expiration or earlier termination of this Agreem
ent as
long as any portion of the Shops Property continues to be used for comme
rcial
uses. Prior to the final approval of this Agreement at a second public hearing
,
Owner and Village will negotiate the terms of an instrument to be execute
d and
recorded within ten days after the FInal Approval Date imposing the Parking
Surcharge on the Shops Property.
14.2. Owner Retention of Portion of Parking Surcharge. Owner may retain up
to 50%
of each quarterly payment of the Parking Surcharge due Village to offset
the
Owner’s cost of constructing the parking provided for New Village Hall (wheth
er
on the Fairfield Property or in the NVH Garage) up to the actual cost of the parking
 space5 provided, but not to exceed $6 million, after which
100% of the Parking
Surcharge will be paid to the Village.
15. Traffic improvements. Owner must fully fund and implem
ent all of the traffic
improvements described in the traffic study prepared by Fandre
i Consulting, Inc., last
updated January 2017 (collectively, “Traffic Improvements”),
including but not limited to
the Traffic Improvements listed in Sections 15.1 through 15.4 below,
in order to improve
ingress and egress to and from the Shops, and to provide Improv
ed traffic flow for
through-traffic on Coilins Avenue, Harding Avenue, and
96th Street. The Traffic
Improvements will be constructed during the time designa
ted for each Traffic
Improvement identified below. The construction of the Traffic Improv
ements is subject
to the approval of other Governmental Authorities, and Owner will
be responsible forthe
cost of any additional studies and improvements that may
be required by other
Governmental Authorities. The Village agrees to provide any
reasonable consents or
documentation required by other Governmental Authorities
to implement the Traffic
Improvements, but no changes may be made to the Traffic Improv
ements without the
prior approval of the Village Manager, which approval will not
be unreasonably withheld
or delayed. if the Village Manager finds that any requested
changes to the Traffic
Improvements negatively modify the Level of Service approved
by Fandrel Consulting, Inc.
and the Corradino Group (“Approved LOS”), Village Council approv
al of the changes will
be required. If the Village Manager finds that the requested change
s do not negatively
modify the Approved LOS, the changes will be handled administrative
ly.
15.1. Realignment of Collins Avenue. As one of the initial elemen
ts of Phase One of the
Project Owner (with assistance from the Village) will work with
FDOT to seek
approval to reconfigure the southbound lanes on Collins Avenue
from Founder’s
Circle through the 96th Street intersection in order to ensure
a continuous and
uninterrupted flow of traffic. Upon approval by FOOT, Owner
will undertake the
reconfiguration at Owner’s expense and in accordance with FOOT
requirements.
15.2. First Set of Traffic Improvements. The following Traffic Improv
ements will be
completed prior to the issuance of a TCO for the new parking
garage on the
Existing Shops Property:
15.2.1. AlA Crosswalk. Construction and installation of an interim two-sta
ge
pedestrian crosswalk In the 9700 Block of State Road AlA
(“AlA”), In
the location where a crosswalk currently exists.

15.2.2. Collins / Harding Signal Removal. Removal of the existing

mid-block
pedestrian signal on Collins Avenue and HardIng Avenue north 96Lh
of
Street after completion of the two-stage pedestrian crosswalk
on AlA.
15.2.3. Loading Area and Service Driveway. Construction of a
new loading
area and service driveway for the Shops on 96th Street at Byron
Avenue
to handle truck traffic.
 is.s. second Set of Traffic Improvements. The following Traffic Improv
ements will be
completed priorto the issuance of the Final TCO.
15.3.1. signalized Driveway at North End of Shops. Construction of a new
signalized driveway at the north end of the Shops to handle the traffic
that currently uses the driveways on Collins Avenue and Hardin
g
Avenue, in order to eliminate backups from the driveways
that
interfere with traffic flow on Collins Avenue.

15.3.2. Premium Valet Parking Entry. Conversion of the existing driveway

on
Collins Avenue and Harding Avenue into an “Entry Only” driveway
for
premium valet parking.

15.3.3. Premium Valet Parking Exit. Conversion of the secondary drivew

ay
adjacent to the pedestrian crossing signal immediately north
of 96Ih
Street to an “Exit Only” driveway for premium valet parking.

15.3.4. AlA Crosswalk. Construction and installation of an enhanced two-

stage pedestrian crosswalk in the 9700 Block of Stete Road
AlA
(“AlA”), in the location where a crosswalk currently exists.

15.3.5. Retiming of Traffic Signals. After completion of the new driveway

at
the north end of the Shops and the new service driveway on
Street, development of new traffic signal coordination plans
to
optimize signal operations, taking into account the improved signal
spacing and other changes to the street network.

15.4. During All Phases. Ongoing monitoring of traffic changes during

the development
of the Project, and development and implementation of interim
signal retiming
plans throughout all of the Phases to address the changes in traffic flow
that will
occur during the development of the Project.
15.5. Additional Traffic Improvements after Project Completion.
The parties
acknowledge that the Owner Is not required to provide any additio
nal traffic
mitigation for the Project other than as set forth in the foregoing
subsections
regarding the Traffic Improvements. Owner agrees to fund and
implement the
following additional traffic improvements (“Additional Traffic
Improvements”)
prior to issuance of the Final TCO. In the event that other
Governmental
Authorities will not approve the Additional Traffic Improvements,
the Owner will
be released from any further responsibility related to the Additio
nal Traffic
Improvements.
15.5.1. HardIng Avenue! g6th Street Intersection. Installation of sensor
loops
and pedestrian pushbuttons to the signals controlling the eastbou
nd
and westbound traffic. This Improvement will allow signal operati
on
to respond more effectively to variations in eastbound traffic.
SIgnal
 time not needed by the east/west traffic on %th Street can be
transferred to Harding Avenue to reduce southbound delays and stops.

15.5.2. Collins Avenue / g6th Street Intersection. Installation of sensor loops

and pedestrian pushbuttDns to the eastbound movement, and if
possible, provide a connection to the eastbound loops at Harding
Avenue. This improvement will allow the intersection to work in
concert with the signal at the Harding Avenue / gethiStreet Intersection,
and to transfer unused green signal time from g6th Street to
northbound Collins Avenue.

15.5.3. 96LH Street at 500 Block. Addition of a two-stage pedestrian crossing

to provide a safer crossing of g6th Street by pedestrians and to reduce
delays to traffic on g5th Street.

16, infrastructure Improvements. Owner will be responsible for the cost of installin
g,
connecting, or relocating and reconnecting, any water, sewer and stormw
ater
improvements required in order to facilitate the development of, and meet any capacit
y
requirements for, the Project, New Village Hall, and the NVH Garage.
17. Collins Plaza Public Space.
17.1. Design of Collins Plaza. Owner is redesigning the existing surface parking area of
the Existing Shops Property located on Collins Avenue (“Collins Plaza”) with a
pedestrian walkway and valet parking facilities. In order to prevent cars from
inadvertently entering the pedestrian area of Collins Plaza, Owner shall install
a
landscape buffer to set off the pedestrian walkway from the valet areas and travel
lanes. The landscape buffer may include planting areas, fountains or other
physical barriers approved by the Village.
17.2. Use by Owner. Upon receipt of the Final TCO, Owner agrees to use Collins Plaza
on a periodic basis as determined by Owner for appropriate commercial uses such
as retail, food, and beverage sales, which uses are compatible with the operation
of the Shops. Owner will have the right to terminate its use of Collins Plaza after
consultation with the Village if Owner reasonably believes its use of Collins Plaza
to be unsuccessful.
17.3. Use of Collins Plaza by Village. Upon receipt of the Final TCO, the Village will have
the right to use all of Collins Plaza (including the parking spaces) up to six times
per calendar year for special events, at no cost to Village, on dates and at times
mutually agreed upon by the parties. Village agrees that the Village’s special
events will not take place during peak periods of demand for parking. If Owner
reasonably determines that Village’s use of Collins Plaza Is detrimental to the
operation of the Shops, Owner shall notify Village in writing, and Village shall have
a period of five days after receipt of the written notice to modify its use of Collins
Plaza. If Village fails to modify its use of Collins Plaza to a use which, in Owner’
s
 reasonable opinion, is not detrimental to the Shops, Owner will have the right to
terminate Village’s use of Collins Plaza upon five days’ written notke to Village.
18. Public Improvements.
18.1. Art in Public Places. Owner agrees to contribute the sum of $1 million (“Art
Contribution”) to the Village to be used solely for the temporary or permanent
installation of works of art on public property. Within 30 days after the issuance
of the first building permit for any portion of the Project, Owner will deliver to
Village a check in the amount of $500,000.00, constituting one-half of the Art
Contribution. If after the Final Approval Date, Owner installs new artwork in the
Project which Is visible to or easily accessible by the public, Owner will receive a
credit against the Art Contribution in an amount of up to $500,000.00 based on
the value of the artwork installed by Owner. The Village encourages Owner to
install artwork that is Integrated into the design of the Project. Upon issuance of
the Final CO, Owner will pay any outstanding balance of the Art Contribution to
the Village.
18.2. ResidentIal Gate. Owner agrees to pay for (i) the redesign of the residential gate
entry on Sal Bay Drive near the Village Hall Property into a two-way entrance, and
(ii) the replacement of the existing gate with a new residential gate (collectively,
“Gate Work”). Owner will not be required to spend more than $30,000.00 for the
Gate Work. No land owned by Owner will be used for the redesign of the entrance.
The Village will be responsible for obtaining all approvals required for Gate Work.
Owner agrees to complete the Gate Work within six months after the Village
obtains the necessary approvals for the Gate Work. If the Village has not obtained
the necessary approvals by the date of the Final CO, the Owner will be released
from its obligations regarding the Gate Work
19. Public Use Areas,
19.1. SIdewalks. As part of the Shops Expansion, Owner will be widening and improving
certain sidewalks on the Shops Property along 96 Street and Collins Avenue, as
well as portions of the publicly dedicated rights-of way along tu1 Street and
Collins Avenue. The portions of the Shops Property and the public property to be
widened and improved are shown on Exhibit L (“Public Use Areas”).
19.2. Encroachments. As part of the Shops Expansion, Owner will be constructing
parking spaces, fountain areas, paved driveways, and other Project Improvements
shown on Exhibit M (“Project Encroachments”), some of which may encroach on
the public rights of way.
19.3, Easement, Encroachment, and Maintenance Agreement. Prior to final approval
of this Agreement at a second public hearing, Owner and Village will negotiate the
terms of an agreement (“Easement, Encroachment, and Maintenance
Agreement”) to be recorded within ten days after the Final Approval Date. The
Easement, Encroachmentand Maintenance Agreement will bea covenant running
with the land which will (i) survive the termination or expiration of this
 Agreement; (ii) be reasonably satisfactory to Village in form and content; and (iii)
include the following:
19.3.1. Grant of Easement Grant by Owner to Village of a perpetual, non-
exclusive easement allowing the public to use the Public Use Areas that
are located upon the Shops Property;
19.3,2, License for Encroachments. Grant by Village to Owner of an
irrevocable, non-exclusive license permitting the encroachment onto
96 Street or Collins Avenue of the Project Encroachments;
19.3.3, Maintenance Obligation. A covenant by Owner to maintain the Public
Use Areas and Project Encroachments in perpetuity at Owner’s
expense (in clean and safe condition, and in keeping with the
maintenance standards of the Shops) and to repair, and replace, as
needed, all Public Use Areas and Project Encroachments; and
19.3.4. Landscaping along Park Drive Wall. A covenant by the Owner to ln5tall
landscaping along the Park Drive side of the wall to be constructed on
the Shops Property and to maintain the landscaping In perpetuity.
19.4. Pedestrian Access during Construction.
19.4.1. Collins Avenue. Owner shall maintain safe pedestrian access along
Collins Avenue throughout the construction of the Project.
Intermittent closures of pedestrian access on Collins Avenue will be
permitted, subject to the Village Manager’s reasonable approval.

19.4.2. 96t1.Street. Owner may partially close pedestrian access to the

sidewalk on 96Lh Street during construction as long as Owner provides
a safe and reasonable alternative acceptable to the Village Manager
and the Florida Department of Transportation.

19.5. Park Drive. Owner hereby agrees to grant to Village a utility easement in the form
attached as Exhibit N over, across, upon, and under Owner’s underlying fee
simple interest in the portion of Park DrIve abutting the Shops Property up to the
centerline of Park Drive. Owner will execute and deliver the utility easement to
the Village within 10 days after the Final Approval Date, Within 90 days after the
Final Approval Date, BHS shall execute a waiver of any claim of ownership it may
have to Park Drive in a form reasonably satisfactory to Village.
20. Public Safety.
20.1. Safety During Construction. Owner recognizes that during the period of
construction of the Project, activities at the Shops Property will generate a need
for additional public safety services and personnel to protect the health, safety
and welfare of Village residents. Throughout the construction of the Project,
Owner will pay for off-duty Bal Harbour police officers to be posted at each
construction site entrance and exit during the hours that construction Is taking
 place. The Village Manager may, in his reasonable discretion, require additional
police coverage for the Project at Owner’s expense.
20.2. off-Duty Police Services. From the date of issuance of the first permit for any
portion of the Project until is5uance of the Final CO, Owner will be required to pay
to the Village an annual “0ff-Duty Police Fee” in an amount equal to the cost of
4,500 hours of off-duty police service at the rate then being charged by the Village
for off-duty police service. Owner will pay the Off-Duty Police Fee in advance In
quarterly installments, with the first installment due on the first day of the
calendar quarter (January, April, July. or October) following the date of issuance
of the first permit for any portion of the Project. After completion of the Project,
the Off-Duty Police Fee will be reduced to the cost of 3,500 hours of off-duty police
service. If the Shops’ operating hours change in the future, the number of hours
used to calculate the Off-Duty Police Fee will be adjusted accordingly. Owner and
the Village Manager will mutually agree upon an appropriate schedule for the off-
duty police officers to be present on the Shops Property. If Owner requests off-
duty police officers for Shops events or construction during a year, the services
requested will be counted as part of the 4,500 hours (3,500 hours after issuance
of the Final CO) paid for by Owner. The Off-Duty Police Fee will not apply to either
(i) the police services required under Section 20.1, or (ii) off-duty police services
requested by tenants of the Shops. The Owner’s obligation to pay the Off-Duty
Police Fee will survive the expiration or termination of this Agreement. Prior to
the final approval of this Agreement at a second public hearing, Owner and Village
win negotiate and finalize the terms of an instrument to be executed and recorded
within 10 days after the Final Approval Date imposing on the Shops Property the
obligation to pay the Off-Duty Police Fee in perpetuity as long as any portion of
the Shops Property Is used for commercial purposes.
20.3. Construction Staging and Parking. Prior to the issuance of a building permit for
the first principal structure of the Project, Owner will submit a construction
staging plan and a plan for maintenance of traffic to the Village Manager for
approval. The proposed maintenance of traffic plan will require the Owner to take
all reasonable actions necessary to minimize disruption of traffic along Collins
Avenue and 96111 Street during construction, and will require coordination with the
Village In advance of any construction activities likely to Impact traffic along those
thoroughfares. Owner agrees that the staging of construction and the parking of
all construction vehicles and equipment, Including cranes and dumpsters, will
occur entirely within the Shops Property and the Fairfield Property. Construction
traffic between the Shops Property and the Fairfield Property will traverse Sal
Cross Drive, if possible, and not enter the Collins Avenue right-of-way. All
construction traffic must be managed to ensure pedestrian safety at all times.
Owner shall maintain Bal Cross Drive in as clean and safe a condition as reasonably
possible until the Fairfield Property is conveyed to the Village.
20,4. LPR Cameras. Owner agrees to donate to the Village two license plate recognition
cameras (°LPR Cameras’) at a cost not to exceed $25,000.00, and to grant to the
 Village a perpetual easement for the installation, maintenance, repair and
replacement of the LPR Cameras. The easement will allow the LPR Cameras to be
installed In locations acceptable to Village and Owner, including on building5
which will not be impacted by the installation, on light poles, and upon other
facilities located on the Shops Property. Village agrees that the LPR Camera will
be used only to monitor traffic on Collins Avenue and 96th Street, and will not
record the license plates of Shops patrons on the Shops Property. The Village
agrees to indemnify Owner against any action brought against Owner as a result
of the [PR Cameras, subjectto the limitations of liability set forth in Section 768.28
of the Florida Statutes.
20.5. Noise Meters. Prior to issuance of the first permit for any portion of the Project,
Ownershall provide to Village, at Owner’s expense, two noise meters, one to be
installed at a fixed location and the other a portable meter. The noise meters shall
be a brand and model reasonably satisfactory to the Owner and the Village
Manager. Owner shall install the Village’s fixed noise meter at Owner’s expense
in a location on Park Drive to be designated by Village. Village will be responsible
for calibrating the noise meters, but Owner will be responsible for maintaining,
repairing and replacing the noise meters at Owner’s expense until the conveyance
of the Fairfield Property to the Village.
21. Building Department Fees and Services.
21.1. Payments in Lieu of Building Permit Fees. In lieu of paying the Village’s standard
fees for building permits for the Project, Owner agrees to pay Village a
contribution in lieu of permit fees in the amount of $2.5 million’. (“Voluntary
Contribution”) in five equal installments, according to the following schedule:

First Payment of Due at time of submittal of the first permit application for
$500,000’. construction.

Second Payment Due prior to issuance of the first building permit for
of $500,000. construction

Third Payment of Due on one-year anniversary of Second Payment

$500,000.

Fourth Payment Due on two-year anniversary of Second Payment

of $500,000’.

Fifth Payment of Due prior to issuance of Final TCO for entire Project
$500,000.

‘.NOTh: All amounts set forth in Section 21.1 and in this table are estimates
subject to adjustment as set forth in Section 21.1.1.
 21.1.1. Voluntary Contribution Based on Estimated Construction Cost. The
Voluntary Contribution and payments set forth in Section 21.1 are
estimates only. Prior to the issuance of the first building permit for
construction, Owner will provide the Village with a copy of the
construction contract for the Project or other documentation acceptable
to Village showing the anticipated cost of the Project. The amounts of
the second through fifth payments will be adjusted based on that cost so
that the total of the five payments equals two percent of the anticipated
Project hard casts up to the first $1.0 million, and one percent of the
anticipated Project hard costs after the first $1.0 million.

21.1.2, Items not included in Voluntary Contribution. The calculation of the

Voluntary Contribution payments under this provision does not include
any of the following: ji) the value of any permits required for New Village
Hall; (ii) the value of any permits for work done by tenants of the Shop5,
which must be applied for and paid for by tenants; or (iii) the amount of
any charges collected by the Village on behalf of other Governmental
Authorities, which charges must be remitted to Village by Owner.

21.1.3. True-up of Voluntary Contribution. Thirty days prior to the issuance of

the Final TCQ, Owner will provide Village with an updated calculation of
the actual Project construction cost (including the cost of the NVH
Garage). Any required adjustment of the Voluntary Contribution based
on the Owner’s actual construction costs will be paid by Owner or
refunded by Village, whichever is applicable.

21.2. Expedited Plan Review and Inspections. In consideration for Owner’s paymen
t
of the Voluntary Contribution, Village agrees thatfrom and afterthe firstsubmittal
of an application for a building permit for the Project, Village will initiate plan
review and schedule on-site inspection services as quickly as possible. The Village
agrees to use best efforts to maintain adequate staff in the Building Departm
ent
to promptly provide Building Department services. Village’s agreement to review
plans and perform inspections does not obligate the Village to approve any plans
or Inspections. Owner understands and agrees that throughout the term of this
Agreement, any official inspector for the Village, or a duly authorized agent of the
Village, will have the right and privilege at any time during normal business hours
to enter upon and investigate the use of the Shops Property to determine whether
the Shops Property complies with applicable Governmental Requirements.
21.3. Use of Private Provider. Owner will at all times have the right to hire a private
provider under Section 553.791 of the Florida Statutes.
22. Security ror Owner’s Obligations. In order to guarantee the performance of the
Owner’s
obligations under this Agreement, Owner hereby agrees to (i) place in escrow with
Weiss
Serota Heifman Cole & Blerman, P.1. (“Village Attorney”) the special warranty deeds
for
 the conveyance of the Fairfield Property and the SunTrust Property and an assignment of
the Suntrust Lease; and (Ii) deliver to the Village the payment and performance bonds
described in this Section 22.
22.1. Escrow of Deeds. Prior to the execution of this Agreement by the Village, Owner
shall deliver to the Village Attorney special warranty deeds conveying the Fairfield
Property and the SunTrust Property to the Village (collectively, the “Deeds”). The
Deeds must be reasonably satisfactory in form and substance to the Village
Attorney. The Deeds will be held in escrow by the Village Attorney according to
the terms of an Escrow Agreement to be entered into by Owner, each Owner
Subsidiary, Village, and Village Attorney prior to the execution of this Agreement
by the Village. The terms and conditions of the Escrow Agreement must be agreed
upon by the parties prior to the execution of this Agreement by the Village.
22.2. Payment and Performance Bonds. Owner, at Its sole cost and expense, shall
obtain and deliver to the Village two separate payment and performance bonds
(each, a “Bond”). Each Bond must be reasonably acceptable to the Village in form
and content; must be rated A+ or better, and must be written by a reputable
surety licensed to write bonds in the State of Florida.

22.2.1. Bond Securing Completion of Project. If the Owner Is required by its

lender to obtain a Bond in connection with its financing of the Project,
then, if the lender permits, Owner will use reasonable efforts to make
the Village a third obligee under the Bond, subordinate in all respects to
the Owner’s Lender.

22.2.2. Bond for Construction of New Village Hall And NVH Garage. Prior to
the issuance of a building permit for New Village Hall, Owner will cause
the NVH Contractor to obtain a Bond to secure the completion of
construction of New Village Hall and the NVH Garage, with the Village
named as the second obligee.

23. Taxes.
23.1. MinImum Ad Valorem Taxes. Owner guarantees that the municipal portion of
annual ad valorem taxes paid by the Owner and tenants of the Shops during the
construction of the Project will be no less than the amount that results from the
resolution of the pending challenge regarding the amount due in the 2016 tax year
(currently estimated at $384,000.00) (the “2016 Municipal Tax Payment”).
Owner agrees to pay to the Village on December 1 of each year a sum equal to the
2016 Municipal Tax Payment less the municipal portion of the ad valorem tax bills
for the Project due on March 31 of the same year (including tenants’ tax bills).
Owner’s obligation under this paragraph will terminate upon Final Co.
23.2. Minimum Resort Taxes. Owner guarantees that during the construction of the
Project, the aggregate annual amount of Bal Harbour Resort Tax payments
generated by the tenants of the Shops will be a minimum of $880,000.00. Owner
 agrees to pay to the Village by October31 of each year a sum equal to $880,00
0.00
less the total actual Resort Tax payments from the Prolect for the preceding fiscal
year ending September 30. Owner’s obligation under this paragraph will
terminate upon Final CO.
24. Transfer Fee. Subject to the provisions below, Owner will pay Village a one-time
fee
(“Transfer Fee”) equal to 1% of the gross sale price of the Bal Harbour Shops
upon a
“Transfer” (as defined below) of all or substantially all of the Shops Property that closes
after the Final Approval Date. The Transfer Fee will be calculated as follows:
24.1. Definition of Transfer. Each of the following events will be considered a
“Transfer” for purposes of this Agreement.

24.1.1. Sale of Fee Simple Interest. A sale or lease in excess of 50 years of

Owner’s fee simple Interest in 50% or more of the Shops Property.

24.1.2. Sale of Controlling lntere5t of Owner. A sale of the Controlling Interest

in Owner. For purposes of this Agreement, the “Controlling Interest” in
Owner Is the ownership of (I) more than 50% of the voting rights of the
general partners or (ii) more than 50% of the general partnership
interests in the Owner entity. On the Effective Date, the general
partners of Owner are Stanley F. Whitman, as Trustee of the SFW
Revocable Trust, Randall A. Whitman, and Matthew Whitman Lazenby.
Owner shall notify Village of any change in the Controlling interest of
Owner which would trigger the Transfer Fee within 10 days after the
change occurs, until the expiration or termination of Owner’s obligation
to pay the Transfer Fee.

24.2. Calculation of Transfer Fee. If the closing of the Transfer occurs after the Final
Approval Date, the Transfer Fee will be assessed only upon the first to occur the
of
following Transfers:

24.2.1. Prior to Building Permits for 50% of the EFA. If a Transfer occurs prior
to the issuance of building permits for 50% of the Expansion GFA, 100%
of the Transfer Fee will be due and payable to Village on the closing date
of the Transfer.

24.2.2. Prior to Building Permits for All of the GFA. If a Transfer occurs prior to
the issuance of building permits for 100% of the Expansion GFA, 90% of
the Transfer Fee will be due and payable to Village on the closing date of
the Transfer.

24.2.3. Prior to Final TCO. If a Transfer occurs prior to the Final TCO, 75% of the
Transfer Fee will be due and payable to Village on the closing date of the
Transfer.
 24.2.4. Prior to Fifth Anniversary of the Final TCO. Ia Transfer occurs prior to
the fifth anniversary of the Final TCO for the Project, 50% of the Transfer
Fee will be due and payable to Village on the closing date of the Transfer.

24.2.5. More than Five Years After Final TCO. No Transfer Fee will be due in
connection with any Transfer that takes place more than five years after
issuance of the Final TCO.

24.3. Events Not Constituting a Transfer. The following events will not be considered
a Transfer under this Agreement, and no Transfer Fee will assessed upon these
events:

24.3.1. Transfers of Entity Interests. One or more Transfers to unrelated third

parties which In the aggregate total less than 50% of the interests in Sal
Harbour Shops, LLLP;

24.3.2. Mortgages. The grant of a mortgage or security Interest to a third party

(“Secured Party”) encumbering all or a portion of the Shops Property,
the Project, or the Owner entity;

24.3.3. Deed in Lieu. A transfer of all or a portion of the Shops Property, the
Project, or the Owner entity to a Secured Party, bankruptcy trustee, or
receiver, by deed in lieu of foreclosure; or a transfer to a purchaser at a
foreclosure or similar sale;

24.3.4. Transfers by Secured Party. A transfer by a Secured Party to any third

party;

24.3.5, Family Transfers. Transfers to any of the descendants or relatives

(including by marriage or adoption) of Stanley F. Whitman, Dudley
Whitman, or William Whitman;

24.3.6. Transfers for Estate PlannIng. Transfers made for estate or estate tax
planning purposes;

24.3.7. Transfers to Affiliates. Transfers to any parent, subsidiary or other entity

affiliated with Bal Harbour Shops, LLL.P or any of its present or permitted
future owners; or

24.3.8. Eminent Domain. Any conveyance to a Governmental Authority

pursuant to a taking in eminent domain or in settlement of such taking.

24.4. Notice of Transfer. Owner shall provide Village with written notice of a
contemplated Transfer at least 10 days prior to the closing date of the Transfer.
25. “Look Back” Reporting and Mitigation.
 25.1. First Look Back Reports. Twelve months after tenant TCOs have been issued for
75% of the GM of Buildings F,G, H and Z, Owner will pay for and provide to the
Village reports prepared by consultants approved by the Village Manager
regarding traffic, parking, acoustical matters, loading docks, and public safety at
the Project (collectively, “First Look Back Report”).
25.2. FIrst Look Back Mitigation. If any of the First Look Back Reports objectively
demonstrate that Owner has not property mitigated the impacts to traffic,
parking, acoustics, loading, or public safety caused directly and solely by the
Project, Owner will provide mitigation (“First Look Back Mitigation”) In
accordance with the recommendations of Owner’s consultants for the Project,
and as approved by Village. Owner will provide Village with a proposal for the
First Look Back Mitigation within 30 days after issuance of the First Look Back
Reports. Upon Village’5 review and acceptance of the proposal, Village and Owner
will enter into an agreement setting forth the terms and conditions for the
performance of the First Look Back Mitigation by Owner. One year following the
completion of the First Look Back Mitigation, Owner will provide one or more
reports to the Village demonstrating that the First Look Back Mitigation has
resolved any of the Items identified by the First Look Back Reports.
25.3. Second Look Back Reports. Three years after the date of the First Lookback
Reports, Owner will provide a second set of reports to the Village regarding traffic,
parking, acoustical matters, loading dock issues, and public safety (collectively,
“Second Look Back Reports”).
25.4. Second Look Back Mitigation Required. If any of the Second Look Back Reports
objectively demonstrate that Owner has not properly mitigated the impacts to
traffic, parking, acoustics, loading, or public safety caused directly and solely by
the Project, Owner will provide additional mitigation (“Second Look Back
Mitigation”) in accordance with the recommendations of Owner’s consultants for
the Project, and as approved by Village. Owner will provide Village with a proposal
for the Second look Back Mitigation within 30 days after issuance of the Second
Look Back Reports. Upon Village’s review and acceptance of the proposal. Village
and Owner will enter Into an amendment to this Agreement setting forth the
terms and conditions for the performance of the Second Look Back Mitigation by
Owner. One year following the completion of the Second Look Back Mitigation,
Owner will provide one or more reports to the Village demonstrating that the
Second Look Back Mitigation has resolved any of the items identified by the
Second Look Back Reports.
26. Indemnification.
26.1. Owner’s ObligatIon to Indemnify. Owner shall defend, indemnify and save
harmless the Village, its council members, officers, employees, agents, and
contractors (only when acting in their respective official capacities) (collectively,
the “Village Indemnified Parties”), from and against all liabilities, actions,
obligations, damages, penalties, claims, costs, charges and expenses, including,
 without imitation, Attorneys’ Fees (including those resulting from the
enforcement of the foregoing indemnification), arising from, or which may be
imposed upon, incurred by or asserted against one or more Village Indemnified
Parties by a third party, by reason of any one or more of the following:

261.1. Approvals. Any approvals granted by Village in connection with the

Project, and any challenges to such approvals;

26.1.2. Work on Village Property. Any work or activity performed by Owner or

any authorized employee, agent or representative of Owner performing
work or rendering services on behalf of Owner on or about any property
owned or controlled by the Village;

26.1.3. Negligence. Any act, omission or negligence of Owner or any or any

authorized employee, agent or representative of Owner;

26.1.4. Damage to Third Parties. Any accident, injury or damage whatsoever

caused to any person or to the property of any person occurring In, on
or about the Shops Property, which is the result of the act, omission or
negligence of Owner or any authorized employee, agent or
representative of Owner

26.1.5. Failure to Perform. Any failure on the part of Owner or any or any
authorized employee, agent or representative of Owner to observe or
perform any of the covenants, agreements, terms, provisions, conditions
or limitations contained in this Agreement to be observed or performed
by Owner or by any authorized employee; agent or representative of
Owner, Including compliance with any Governmental Requirements
applicable to the Project;

26.1.6. Material Breach. Any material breach of this Agreement by the Owner
or any or any authorized employee, agent or representative of Owner.

26.2. Legal Action. If any action or proceeding Is brought against a Village Indemnified
Party by reason of any claim arising out of a matter set forth in this Section 26,
then upon written notice from Village, Owner shall, at Owner’s sole cost and
expense, resist or defend such action or proceeding with counsel and litigation
strategy designated or approved by Village.
26.3. Limitation. The Indemnification set forth In Section 26 will not apply to any
damages resulting solely from the negligence or willful misconduct of a Village
Indemnified Party.
26.4. Survival. The provisions of Section 26 and the subsections thereunder will survive
the termination of this Agreement.
27. Insurance. Prior to commencing any work on any property owned by the Village, Owner
will obtain a policy of Commercial General Liability Insurance naming the Village as an
Additional Insured, written on a carrier licensed to do business in Florida with an AM Best
rating of A- or better. Coverage nust include, at a minimum: (i) Premises Operations, (H)
Products and Completed Operations, (iii) Blanket Contractual Liability, (iv) Personal Injury
Uability, and (v) Expanded Definition of Property Damage. The minimum limits
acceptable are $1,000,000 Per Occurrence General Aggregate. The use of an
excess/umbrella liability policy to achieve the limits required by this paragraph will be
acceptable as long as the terms and conditions of the excess/umbrella policy are no less
restrictive than the underlying Commercial General Uability policy.
27.1. Evidence of Insurance. Owner must provide satisfactory evidence of the required
insurance to Village. Satisfactory evidence of insurance is either (i) a certificate
of insurance; or (ii) a certified copy of the actual insurance policy.
27.2. Cancellations and Renewals. If obtainable, all insurance policies must specify that
they are not subject to cancellation or non-renewal without a minimum of45 days
notification to the Owner and the Village, and a minimum of 10 days notification
for non-payment of premium. Owner will provide Village a minimum of 30 days
written notice If any policies are cancelled or non-renewed, and 10 days written
notice for non-payment of premium.
28. Default, Opportunity to Cure, and Remedies.
28.1. Defaults Generally. Subject to notice and opportunity to cure as set forth in
Sections 28.1 and 28.2, if either Owner or Village fails to fulfill any obligation or
covenant set forth in this Agreement, the other party will be entitled to exercise
any orali remedies available under this Agreement, or at law or In equity. Owner
and Village expressly acknowledge and agree that the right of specific
performance will be available to both parties to enforce obligations under this
Agreement, along with all other legal and equitable rights and remedies.
28.2. Defaults by Owner. If Owner fails to fulfill any obligation or covenant set forth
this Agreement, Village shall provide written notice to the Owner specifying the
Owner’s failure, and Owner will have (i) a period of 30 days after receipt of the
notice to cure or correct a non-monetary failure; and (ü) a period of ten days to
cure a monetary default, If the Owner’s failure to fulfill any non-monetary
obligation or covenant is capable of cure but cannot reasonably be cured within
the 30-day period, then Owner will have an additional reasonable period of time
as determined by Village within which to cure the failure, but only if (I) Owner
commences to cure the failure within the initial 30-day period and thereafter
continues to diligently perform all actions necessary to cure the default; and (ii)
Owner continues to comply with all other obligations and covenants of this
Agreement.
28.3. Defaults by Village. if Village fails to fulfill any obligation or covenant set forth in
this Agreement, Owner shall provide written notice to the Village specifying the
 Village’s failure, and Village will have a period of 30 days after receipt of the notice
to cure or correct the failure. If the Village’s failure to fulfill any obligation or
covenant is capable of cure but cannot reasonably be cured within the 30-day
period, then Village will have an additional reasonable period of time within which
to cure the failure, but only if (i) Village commences to cure the failure within the
initial 30-day period and thereafter continues to diligently perform all actions
necessary to cure the default; and (ii) Village continues to comply with all other
obligations and covenants of this Agreement.
29. Notices. All notices, demands, requests and other communications required under the
Agreement must be given in writing and may be delivered by (i) hand delivery, with a
receipt issued by the party making such delivery; (ii) certified mail, return receipt
requested, or (iii) a nationally recognized overnight delivery service which provides
delivery confirmation. Notice will be deemed to have been given upon receipt or refu5al
of delivery. All notices, demands, requests and other communications required under this
Agreement may be sent by facsimile or electronic mail provided that the facsimile or
electronic communication is followed up by notice given pursuant to one of the three
methods in the preceding sentence. Any party may designate a change of address by
written notice to the other party, received by such other party at least ten days before
the change of address Is to become effective.
29.1. Notice to Owner. Notice to Owner under this Agreement must be sent to:
Sal Harbour Shops, LLLP
9700 collins Avenue
Sal Harbour, Florida 33154
Attention: Matthew Whitman Lazenby
Telephone: 305 403 9200
Email: mwl@whftmanfamilydevelopment.com

and

Whitman Family Development

420 Lincoln Road, Suite 320
Miami Beach, Florida 33139
Attention: Matthew Whitman Lazenby
Telephone: 305 403 9200
Email: mwl@whitmanfamilydevelopment.com

With a copy to:

 Shubin and Bass
46 SW 1st Street
3rd Floor
Miami, FL 33130
Attention: John Shubin and Amy Huber
Telephone: 305 381 6060
Facsimile: 305 381 9457
Email: Jshubln@shubinbass.com; ahuber@shubinbass.com

and

Katz Barron
2699 South BaVshore Drive, Seventh Floor
Miami, Florida 33133
Attention: Howard L. Friedberg and Michael 0. Katz
Telephone: 305 856 2444
Facsimile: 305 285 9227
Email: hlf@katzbarron.com and mdk@katzbarron.com

29.2. Notice to Village. Notice to the Village under the Agreement must be sent to:
Sal Harbour Village
655 96th Street
Sal Harbour, FL 33154
Attn: Village Manager and Village Clerk
Telephone: 305 866 4644
Email: jgonzalez@balharbourfl.gov and ddanie@balharbourfl.gov

With a copy to:

Weiss Serota Heliman Cole & Blerman, P.L

200 East Broward Boulevard, Suite 1900
Fort Lauderdale, Florida 33301
Attention: Susan L Trevarthen
Telephone: 954 763 4242
Facsimile: 954 764 7770
Email: strevarthen@wsh-law.com

30. MultIple Ownership of Shops Property. This Agreement is a covenant running

with the
land. In the event that any portion of the Shops Property is conveyed to a third
party, so
that there are multiple owners of the Shops Property, each of the additio
nal or
 subsequent owners, mortgagees, and other successors in interest In and to any portion
of the Shops Property will be bound by the terms and provisions of this Agreement
31. Term of Agreement. The provisions of this Agreement will become effective upon the
Effective Date. This Agreement will remain in effect for a period of 30 years after the
Agreement is recorded in the Public Records.
32. Enforcement of Agreement. The Village and the Owner, and their respective successors
or assign5, will have the right to enforce the provisions of this Agreement. Enforcement
maybe by action at law or in equity against any parties or persons violating or attempting
to violate any covenants, either to restrain violation or to recover damages or both. The
Village may also enforce the provisions of this Agreement through civil enforcement
proceedings pursuant to Article V of the Village Code.
33. AuthorIzation to Withhold Permits and Inspections. If Owner fails to make any of the
Contributions required by this Agreement, or fails to fulfill any other of its obligations
under this Agreement, the Village will send Owner written notice of the obligations past
due. Ten days after providing the written notice to Owner, the Village, in addition to any
other remedies available, is hereby authorized (i) to withhold any further permits
requested by Owner for the Project (ii) to refuse to make ifl5pectlofls or grant any
approvals requested by Owner for the Project, and (ui) to withhold Issuance of the Final
CC, until such time as the Owner makes all of the required Contributions and fulfills all of
its obligations under this Agreement. The provisions of this Section will not be construed
to permit any refusal or delay by the Village to process permits, inspections or approvals
requested by tenants of the Shops.
34. Development Rights. For purposes of this Section, “ExIsting Zoning” means the zoning in
effect on the Effective Date of this Agreement, which specifically includes the text
amendments approved in connection with the approval of the Project, but which excludes
the Village’s sign regulations.
34.1. Permitted Development Uses, Building Intensities and Heights.
34.1.1. As of the Effective Date, and pursuant to the Development Approvals,
the intensity proposed for the Project Is consistent with the intensities
permitted by the Existing Zoning and are consistent with the Village’s
adopted Comprehensive Plan.

34.1.2. As of the Effective Date and pursuant to the Development Approvals

the uses proposed for the Project are consistent with the Intensities
permitted by the Existing Zoning and are consistent with the Village’s
adopted Comprehensive Plan Comprehensive Plan.

34.1.3. As of the Effective Date and pursuant to the Development Approvals,

the heights proposed for the Project are consistent with the intensities
permitted by the Existing Zoning and are consistent with the Village’s
adopted Comprehensive Plan.
 34.2. Reservation of Development Rights.
34.2.1. For the term of this Agreement, the Village agrees that it shall permit
the development of the Project in accordance with the Existing Zoning,
the Village’s adopted Comprehensive Plan, the Development
Approvals and this Agreement.

34.2.2. Nothing contained in this Agreement prohibits an increase or decrease

in the density or Intensity of development permitted in the Project, or
reallocation of density or intensity within the Project in a manner
consistent with (i) the Existing Zoning and/or the Village’s adopted
Comprehensive Plan, (ii) any change in regulations subsequently
requested or initiated by Owner and approved by the Village in
accordance with applicable Governmental Requirements or (lii) any
change in regulations subsequently enacted by the Village that Is
applicable by Its terms to the Shops.

34.2.3. The expiration or termination of this Agreement shall not be

considered a waiverof, or limitation upon, the rights, including, but not
limited to, any claims of vested rights or equitable estoppel, obtained
or held by Owner or its successors or assigns to continue development
of the Property in conformity with all prior and subsequent
development permits or development orders granted by the Village.

35. Miscellaneous Provisions.

35.1. Adjustment of Deadlines. Any deadlines for performance by either Owner or
Village set forth in this Agreement may be adjusted by mutual agreement of the
parties. Changes to deadlines must be confirmed in a writing signed by both
parties, and the Village Manager is authorized to sign on behalf of the Village. The
Village Manager, in his sole discretion, may bring proposed changes to deadlines
to the Village Council for approval. If the Village Manager or the Village Council is
willing to adjust any deadline set forth in this Agreement, either the Village
Manager or the Village Council shall determine the procedure for adopting the
deadline adjustment and either the Village Manager or the Village Council may
require a formal amendment to this Agreement adopting the changed deadlines,
which amendment will require two public hearings in accordance with Section
163. 3225, Florida Statutes.
35.2. Amendments. The provisions of this Agreement may be amended or modified
from time to time by a recorded instrument executed by the then owners of the
Shops Property and the Village.
35.3. Attorneys’ Fees. In the event that either party to the Agreement institutes legal
proceedings in connection with the Agreement, the prevailing party will be
entitled to recover its Attorneys Fees.
35.4. Authority. Owner represents that it has full right, power and authority to enter
into the Agreement and to perform its obligations and agreements hereunder,
and that the person or persons executing the Agreement on behalf of Owner are
duly authorized to do so.
35.5. compliance with Governmental Requirements. The failure of this Agreement to
address a particular permit, condition, term, or restriction shall not relieve the
Owner of the necessity of complying with the law governing said permitting
requirements, conditions, term, or restriction.
35.6. Conditions of Resolution No. 2017-1077; Site Plan. The conditions set forth in
Village Resolution No. 2017-1077, a copy of which Is attached as Exhibit H, and
the Major Site Plan attached as Exhikki, are hereby incorporated into and made
a part of this Agreement.
35.7. Construction of Agreement. The provisions of this Agreement will not be
construed more strictly against one party or the other. In construing this
Agreement, the singular will include the plural, the plural will Include the singular,
and reference to any gender will include every other gender.
35.8. Counterparts. This Agreement may be signed in counterparts, each one of which
is considered an original, but all of which constitute one and the same Instrument.
This Agreement is effective only after execution and delivery by the parties.
35.9. Entire Agreement. This Agreement and the Exhibits constitute the sole
agreement of the parties with respect to its subject matter. Any prior written or
oral agreements, promises, negotiations, representations or communications not
expressly set forth in the Agreement are of no force or effect.
35.10. Force Majeure. If any performance by either party under this Agreement is
delayed by a Force Majeure, the deadline for the performance (and any other
deadlines dependent on such performance) will be extended for the period of
time that performance Is delayed by the Force Majeure.
35.11. Governing Law. This Agreement shall be construed in accordance with, and
governed by the laws of, the State of Florida.
35.12. Recording. Owner, acting on behalf of the Village, shall record this Agreement in
the Public Records at Owner’s expense within 14 days after the Effective Date.
Owner shall provide a copy of the recorded Agreement to Village within 10 days
after recording.
35.13. Sections and Subsections. Cross-references to a specific section of this
Agreement will include all subsections of the Section.
35.14. Severability. Invalidation of any covenant contained in this Agreement by
judgment of a court will in no way affect any other provisions of this Agreement,
all of which will remain in full force and effect
 35.15. Successors and Assigns. The provisions of the Agreement are binding upon the
Owner and its successors and assigns, and inure to the benefit of Village. Nothing
contained in this Agreement is intended to be a dedication, conveyance or grant
to the public in general or to any person or entity unless expressly stated.
36. Waiver of Jury Trial. Each party irrevocably and unconditionally waives, to
the fullest extent permitted by applicable law, any right it may have to a
trial by jury in any legal action, proceeding, cause of action or counterclaim
arising out of or relating to (a) this Agreement, including any exhibits, or
schedules attached to this Agreement; (b) any other document or
instrument now or hereafter executed and delivered in connection with
this Agreement; or (c) the transactions contemplated by this Agreement.
This waiver shall survive the termination or expiration of this Agreement.
IN WITNESS WHEREOF, Village and Owner have executed this Agreement on the
dates set forth below their respective signatures.

[SIGNATURE BLOCKS ON FOLLOWING PAGES)

Witnesses: OWNER:

Signature BAL HARBOUR SHOPSLLLP, a Florida limited

Print name:_,,1/...limited3PiirshlP
Signature:_____________________________
Ma&/w Whitman Lazenby, General Partner
Print name: itrA]t (Date: 7/27/,’?-

STATE OF FLORIDA
COUNTY OF MIAMI-DADE
The foregoing instrument was acknowledged before me on July .23. 2017, by Matthew
Whitman Lazenby, as the General Partner of Bal Harbour Shops, LLLP, a Florida limited liability
limited partnership, on behalf of the limited liability limited partnership, who is Ii(personally
known to me or [ J has produced a valid drivers license as identification.
C

NOTARY SEAL
Notary Public, State of Floridfr..N
Print name:fC)iii\N S - Lxt vi “
My commission expires: 1/!? &/)?
‘C MYCQTnhIFF1VI )
 ______
______
____________
______
___________
______
__ __

Witnesses: VILLAGE:
Signature: -

SAL HARBOUR VILlAGE

Print name:

Signature:

Print name:
4f’R,R
a_.t
I 3) Sex-c J-z__
1! I—

n
C.

AUESP rr

Uwig ante, Village Clerk

APPROVED AS TO LEGAL FORM AND SUFFICIENCY

FOR ThE USE AND RELIANCE OF THE VILLAGE ONLY

Attorney

STATE OF FLORIDA
COUNTY OF MIAMI-DADE
The foregoing in5trument was acknowledged before me on July 2.?
2017, by Jorge M.
Gonzalez, as Village Manager of Bal Harbour Village, a Florida municipal corporation,
on behalf
of the Village. He is pe!ll known to me.

NOTARY SEAL a Nota

Print name:
tic, State of FlQrlda
‘3
H PvbIt Sn ci Ftdda
DMQId S Dajie My commission expires: I 1 2Cc/.frg
My Coirniibi FE 117855
En IIJW1OII
 Exhibit A

Legal Description of Existing Shops Property

All of the BUSINESS SECTION OF BAL HARBOUR, according to the plat thereof, a recorded in Plat
Book 60, at Page 39, of the Public Records of Miami-Dade County, Florida, except for Area Nos.
3 and 4 thereof.

I
 Exhibit B

Legal Description of Church Site

THE COMMUNITY CHURCH PARCEL

ORIGINAL COMMUNITY CHURCH TRACT

THAT PORTION OF TRACT “D” AS SHOWN ON THE PLAT OF THE “RESIDENTIAL SECTION
OF BAL
HARBOUR” RECORDED IN PLAT BOOK 44, AT PAGE 98 OF THE PUBLIC RECORDS
OF MIAMI-DADE
COUNTY, FLORIDA, OF WHICH THE FOLLOWING IS THE METES AND BOUNDS DESCRIPTIO
N:

COMMENCING AT THE SOUTHEAST CORNER OF BLOCK 2 AS SHOWN ON

A PLAT ENTITLED
“RESIDENTIAL SECTION OF BAt HARBOUR” RECORDED IN RAT BOOK 44,
AT PACE 98 OF THE
PUBLIC RECORDS OF MIAMI-DADE COUNTY, FLORIDA, RUN SOUTHEASTERLY
ACROSS PARK
DRIVE, ALONG THE WESTERLY liNE OF CAMDEN DRIVE EXTENDED SOUTHERLY,
A DISTANCE OF
63.64 FEETO A POINT ON THE NORTHWESTERLY BOUNDARY OF TRACT “0”
AS SHOWN ON THE
ABOVE MENTIONED RECORDED PLAT; THENCE CONTINUE SOUTHEAST
ERLY ALONG THE
WESTERLY LINE OF SAID CAMDEN DRIVE EXTENDED, A DISTANCE OF 370 FEETTO
THE POINT OF
BEGINNING OFTHEThACT HEREIN DESCRIBED;

FROM SAID POINT OF BEGINNING RUN SOUTHWESTERLY ALONG A LINE NORMAL

TO THE SAID
WESTERLY LINE OF CAMDEN DRIVE EXTENDED, A DISTANCE OF 130 FEET
To A POINT; THENCE
RUN SOUTHEASTERLY ALONG A LINE PARALLEL TO THE WESTERLY LINE OF CAMDEN
DRIVE
EXTENDED, A DISTANCE OF 150.25 FEET TO A POINT ON A LINE WHICH IS PARALLEL
TO AND 20
FEE DISTANT NORTHERLY FROM THE NORTHERLY LINE OF 96TH STREET
AS SHOWN ON THE
ABOVE MENTIONED RECORDED PLAT; THENCE RUN EASTERLY ALONG A LINE PARALLEL
TO AND
20 FEET NORTHERLY OF THE NORTH LINE OF SAID 96TH STREET, A DISTANCE OF 109.99
FEEt TO
THE POINT OF CURVATURE OF A CIRCULAR CURVE DEFLECTING TO THE LEFT;
THENCE RUN
ALONG THE ARC OF SAID CIRCULAR CURVE DEFLECTING TO THE LEFT AND
HAVING FOR ITS
ELEMENTS A CENTRAL ANGLE OF 11035’25”, A RADIUS OF 20 FEE AND A TANGENT
DISTANCE
OF 28.88 FEET, A DISTANCE OF 38.60 FEET TO A POINT; THENCE RUN NORTHWESTERLY
ALONG
A LINE TANGENT TO THE ABOVE MENTIONED CIRCULAR CURVE ALONG THE WESTERLY
LINE OF
SAID CAMDEN DRIVE EXTENDED, A DISTANCE OF 170.22 FEET TO THE POINT OF
BEGINNING OF
THE TRACT OF LAND HEREIN DESCRIBED.

AND

ADDITIONAL COMMUNITY CHURCH TRACT

COMMENCING AT THE SOUTHEAST CORNER OF BLOCK 2, AS SHOWN ON

A P1ST ENTITLED
“RESIDENTIAL SECTION OF BAL HARBOUR” RECOROED IN P1ST BOOK 44,
AT PAGE 98 OF THE
PUBLIC RECORDS OF MIAMI-DADE COUNTY, FLORIDA, RUN SOUTHEASTERLY
ACROSS PARK
DRIVE, ALONG THE WESTERLY LINE OF CAMDEN DRIVE EXTENDED SOUTHERLY
, A DISTANCE OF
63.64 FEE TO A POINT ON THE NORTHWESTERLY BOUNDARY OF TRACT “0” AS SHOWN ON THE
ABOVE MENTIONED RECORDED PIAT; THENCE CONTINUE SOUTHEASTERLY ALONG THE
WESTERLY LINE OF SAID CAMDEN DRIVE EXTENDED, A DISTANCE OF 370 FEE TO A POINT;
ThENCE RUN SOUTHWESTERLY ALONG A LINE DEFLECTING 90° TO THE RIGHT, NORMAL TO THE
SAID WESTERLY LINE OF CAMDEN DRIVE EXTENDED, A DISTANCE OF 130 FEET TO THE POINT OF
BEGINNING OF THE TRACT OF LAND HEREIN DESCRIBED, SAID POINT BEING THE
NORTHWESTERLY CORNER OF THE ORIGINAL COMMUNITY CHURCH PROPERTY; THENCE
CONTINUE SOUTHWESTERLY ALONG THE LAST MENTIONED COURSE EXTENDED 26 FEET TO A
POINT; ThENCE RUN SOUTHEASTERLY ALONG A LINE DEFLECTING 90° TO ThE LEFT, PARALLELTO
AND 26 FEET DISTANT SOUTHWESTERLY FROM THE ORIGINAL COMMUNITY CHURCH PROPERTY,
A DISTANCE OF 140.485 FEE TO A POINT ON A LINE WHICH IS PARALLEL TO AND 20 FEET
DISTANT NORTHERLY FROM THE NORTHERLY LINE OF 96TH STREET AS SHOWN ON THE ABOVE
MENTIONED RECORDED PLAT; THENCE RUN EASTERLY ALONG A LINE DEFLECTING 69°24’35” TO
THE LEFT, SAID LINE BEING PARALLEL TO AND 20 FEET NORTHERLY FROM THE NORTH LINE OF
SAID 96Th STREET, A DISTANCE OF 27.774 FEE TO A POINT, SAID POINT BEING THE
SOUThWESTERLY CORNER OF ThE ORIGINAL COMMUNITY CHURCH PROPERTY; ThENCE RUN
NORTHWESTERLY ALONG A LINE DEFLECTING 110°35’25” TO THE LEFT, SAID LINE BEING THE
SOUTHWESTERLY LINE OF THE ORIGINAL COMMUNITY CHURCH PROPERTY, A DISTANCE OF
150.25 FEET TO THE POINT OF BEGINNING OF THE TRACT OF LAND HEREIN DESCRIBED.
 Exhibit C

Legal Description of Fairfield Parcel

All of Lot 1, Block 7, of RESIDENTIAL SECTION OF BAL HARBOUR, according to the plat thereof, as
recorded in Plat Book 44, Page 98, of the Public Records of Miami-Dade County, Florida.
 Exhibit 0

Legal Description of SunTrust Property

All of Tract A, SUN PIAT, according to the plat thereof, recorded in Plat Bock 134, Page 67,
Public Records of Miami-Dade County, Florida, together with all appurtenances thereto.
 Exhibit E

Sketch Showing Locations of Buildings F, G, H and Z

(see following page)

o cc
 Exhibit F

Value of Owner’s Contributions

r nd
Fairfield Property
Value
$16,000,000.00
SunTrust Land Only $12,750,000.00
Perpetual Easement on Shops Sidewalks $3,607,000.00
Improvements
New Village Hall w/ Parking $15,600,000.00
Pedestrian Area Beautification $9,375,000.00
Waterfront Park $3,500,000.00
Art in Public Places $1,000,000.00
Traffic, Gate, LPR Improvements $155,000.00
Rents, Taxes and Fees
Pre5ent Value of Increased Resort Tax $13,501,000.00
Present Value of SunTrust Rent $12,608,000.00
Present Value of Increased Business Tax $9,238,000.00
Present Value of Multimodal Fund Contributions $8,710,000.00
Present Value of Increased Ad Valorem Tax $8,656,000.00
Present Value of Police Department Free Rent $4,216,000.00
Present Value of Off Duty Police Fees $3,889,000.00
TOTAL OF ECONOMIC BENEFITS $122,805,000.00

NOTE: Amounts calculated and provided by Owner.

 ExhibitG
Second Modification of Police Department Lease

(see following pages)

 ______,
____________
_____

SECOND MODIFICATION OF LEASE

THIS SECOND MODIFICATION OF LEASE AGREEMENT (“Second Modification”)

is made and entered into as of the day of 2017 (“Second Modification Date”), by
and between BAL HARBOUR SHOPS, LLLP, a Florida limited liability limited partnership
(“Landlord”), whose address is 420 Lincoln Road, Suite 320, Miami Beach, Florida 33139, and
BAL HARBOUR VILLAGE, a municipality (“Tenant”), whose address is Ba! Harbour Village
Hall, 655 96th Street, Bal Harbour, Florida 33154, Attn: Jorge M. Gonzalez, Village Manager.
-

WITNES SETH:

WHEREAS, Landlord and Tenant are landlord and tenant, respectively, pursuant to that
certain Lease dated June 1, 2009, as amended by a Modification of Lease dated March 7, 2017
(collectively, the “Lease”) respecting Space No. 280, containing approximately 2,554 square feet
ofgoss leasable area (“Demised Premises”), located in Bat Harbour Shops (“Fashion Center”),
Bal Harbour, Florida; and

WHEREAS, the Lease expires by its terms at 11:59 p.m. on March 31, 2018 (the
“Expiration Date”), and there is no Security Deposit under the Lease; and

VHEREAS, the parties hereto have agreed to ifirther modify the Lease, subject to and in
accordance with the following terms and conditions.

NOW, THEREFORE, for and in consideration of the sum of TEN ($10.00) DOLLARS,
the mutual covenants contained hcrcin, and other good and valuable consideration, the receipt and
sufficiency of which arc hereby acknowledged, the parties hereto, intending to be legally bound,
do hereby agree as follows:

1. RECITALS: The foregoing recitals are true and correct and are incorporated
herein by this reference.

2. EXTENSION OF TERM: The term of the Lease is hereby extended until the date
that Landlord conveys to Tenant the Fairfield Property and the New Village Hall as described in
the Development Agreement between Landlord and Tenant dated (the
“Extended Expiration Date”). The period from and including the day after the Expiration Date
to and including the Extended Expiration Date shall be the “Extended Term”. The Extended
Term shall be upon the same terms and conditions set forth in the Lease, except as modified by
this Modification, and there shall be no re-imposition of Landlord’s Work, allowances, or rent
concessions, if any of the same were provided in the Lease.

3. ELIMINATION OF RENT AND COMMON AREA CHARGE: Beginning on

the Second Modification Date, there shall be no Minimum Rent or Common Area Charge due
from Tenant under this Lease.

4. TRANSPONDERS: Landlord hereby agrees to provide to Tenant during the term

of the Lease (including all Extended Terms) at no additional charge a number of transponders
consistent with the past practices between Landlord and Tenant in order to afford Tenant’s police
department and designated representatives with free 24-hour access to the parking garages serving

0027. 109/Bal Harbour/Second Modification of PD Lease v4

the Demised Premises..

5. RATIFICATION: Except as hereby modified, all of the provisions of the Lease

are hereby ratified by the parties thereto and confinned and shall be and remain in MI force and
effect, and the same are enforceable in accordance with their terms. All terms defined in the Lease
used in this Second Modification shalt have the meanings ascribed to them in the Lease, unless the
context clearly otherwise requires.

6. MISCELLANEOUS: (I) Time is of the essence; (ii) this Modification may be

signed in separate counterparts and delivered electronically, each of which, when taken together,
shall constitute one and the same instmmcnt; (iii) the provisions hereof shall be binding upon and
inure to the benefit of the parties hereto and their respective heirs, personal representatives,
successors and assigns; (iv) except as set forth in this Second Modification, the Lease has not been
modificd and constitutes the entire understanding between and among the panics in respect to the
subject matter hereot and (v) Tenant hereby covenants, represents and warrants to Landlord that
(a) Tenant owns and holds the Tenant’s interest in the Lease, as well as all leasehold improvements,
thrniture, fixtures and equipment, and pcrsonalty, and the same are free and clear of all liens,
claims and encumbrances of whatsoever kind and nature, and Tenant has paid all personal property
and other taxes currently due relating to the same and to the Demised Premises and the Lease, (b)
since the Date of Lease, there has been no event which may constitute a “Transfer” under Section
11.9 of the Lease, (c) the person executing this Modification on behalf of Tenant has thIl right,
power and authority so to do, and the same constitutes the legal, valid and binding obligations of
Tenant flilly enforceable in accordance with the terms hereof, (d) there are no unfrlfilled Landlord
repairs or other obligations under the Lease, (e) no broker is entitled to a commission arising out
of this Modification, and (F) the parties agree that the Lease, as modified by this Modification,
shall be governed by Chapter 83, Florida Statutes.

BALANCE OF PAGE INTENTIONALLY LEFT BLANK

0027.109/Bal Harbour’Sccond ModificaLion of PD lease v4

 ________
_

IN WITNESS WHEREOF, the parties hereto have hereunto

the date first above written. set their hands and seals, as of

WITNESSES: LANDLORD:

SAL HARBOUR SHOPS, LLLP,

a Florida limited liability limited partnership
[Sign & PHntJ

By:___________________________
[Sign & hint] Print Name: Matthew Whitman Lazenby
Its: General Partner

TENANT:

BAL HARBOUR VILLAGE,

a municipality
(Sign & Prinil

By:
lSiw’ & Print] Jorge M. Gonzalez, Village Manager

APPROVED AS TO LEGAL FORM AND SUFFiCIE

NCY
FOR THE USE AND RELIANCE OF THE VILLAGE
ONLY
By: Weiss Serota Helthian Cole & Bierman, P.L., Village
Attorney

3
0027.109/Bal Harbour/Second Modification of PD Lease
v4
 ExhibftH

Resolution No. 2017-1077

(see following pages)

 RESOLUTION NO. 2017-1077

A RESOLUTION OF HAL HARBOUR VILLAGE, FLORIDA

APPROVING A MAJOR SITE PLAN FOR THE EXPANSION
OF THE BAL HARBOUR SHOPS, GENERALLY LOCATED
AT THE NORTHWEST CORNER OF 96 STREET AND
COLLINS AVENUE; AND PROVIDING FOR CONFUCTS,
CONI)ONS AND FOR AN EFFECflVE DATE.

WHEREAS, pursuant to Section 21-322 of the Hal Harbour Village (“Village”) Code of

Ordinances (“Code’), Hal Harbour Shops, LLLP (the “Applicant”) has applied for Major Site
Plan
approval for the expansion of the Bai Harbour Shops (“Shops”) (the “Application”) on propert
y
generally Located at the northwest corner of 96th Street and Collins Avenue and on a vacant parcel

previously occupied by Church By The Sea (the “Church Site”) (collectively, the “Expan
ded
Shops Property”); and

WHEREAS, the Applicant proposes to redevelop and expand the Shops (the “Shops

Expansion”) in a maimer that incorporates the Church Site; and

WHEREAS, approval of the Shops Expansion requires approval of this Major Site Plan

and a related Development Agreement between the Village and the Applicant (the “Devel
opment
Agreement”), in which the Applicant proposes to satis& the mitigation required by Village Code

Sections 21-322(f) and (Ii) by providing the Village with title to the properties adjacent to
the
Shops known as the Fairfield Property and the Sunfrust Property, by constructing another Village

Hall or other municipal facility on the Fairfield Property, and by improving Village
recreational
property, among other public benefits; and

WHEREAS, the Applicant concurrently sought and has obtained several develop
ment
approvals from the Village for the Property, including a Comprehensive Plan Future
Land Use

Bal Harbour Resolution 2017-1077

Map Amendment for the Church Site from Institutional to Commercial (the “Small Scale FLUM

Amendment”) and changes to the text of the Village Code (the “Related Approvals”); and

WHEREAS, the Village bus considered the Development Agreement at two public

hearings, in compliance with Section 163.3225 of the Florida Local Government Development

Agreement Act; and

WHEREAS, the Village Council conducted a duly noticed public hearing on the

Application in accordance with Sections 21-52 and 21-322(1) of the Code;

WHEREAS, pursuant to Section 2 1-322(d), the Ajehitectiral Review Board has reviewed

the Application and recommended to approve with conditions; and

WHEREAS, the Village Council finds that the Major Site Plan and related Development

Agreement are consistent with Village’s Comprehensive Plan and land development regulations,

and that approval of the Application is in the best interest and welfare of the residents of the Village

to approve the Major Site Plan and Development Agreement between the Village and the Applicant;

and

WHEREAS, the Village Council finds and intends that this Resolution shall not be

interpreted to prevent the issuance of permits to the existing Shops or tenants of the Shops that are

authorized by the existing Comprehensive Plan and Code of Ordinances.

NOW, THEREFORE, if IS HEREBY RESOLVED BY TIE VILLAGE COUNCIL

OF BAL HARBOUR VilLAGE, FLORIDA, AS FOLLOWS:

Section 1. Recitals. The above recitals are fle and correct and are incorporated herein

by this reference.

Section 2. Findings. THIS MATTER came before the Village Council of Bal Harbour

Village, Florida, on May 16, 2017. The Village Council having considered the public testimony,

Ed Harbour Resolution 2017-1077 2

 evidence in the record, advisozy recommendations of the Architectural Review Board and staff,

and the testimony ofthe Applicant, finds that the site plan and intended uses, as conditioned herein:

(1) Are designed and scaled to be compatible with and avoid depreciation of Adjacent
properties and to minimize adverse impacts to Adjacent Development and the surrounding
neighborhood by virtue ofthe proposal’s nature, location, design, Building mass, intensity
of usc, or mitigation measures; and
(2) Will not create excessive noise, traffic, illumination or other adverse impacts; and
(3) Provide for safe, efficient convenient and hannonious groupings of Structures, uses and
thcilides and for appropriate relationship of space inside and outside of Buildings to
intended uses and to structural and architectural features within the site; and
(4) Uphold the basic intent and purpose of zoning and other land use regulations, observing
the spirit ofthe regulations and assuring public safety and welfare, without tending to create
a fire or other equally or more dangerous hazard or provoke the excessive overcrowding or
concentration of people or population.
Section 3. Approval. The request to approve thc Application for Major Site Plan for
the
Shops Expansion (2017-001) is hereby approved as shown on the plans submitted with
the
Application, subject to those modifications may be required by the Building Official for the issuance

of building permits.

SectIon 4. Conditions. The APPROVAL granted herein is subject to the following

conditions:

General Conditions
1-The conditions of approval for this project are binding on the applicant the property owners,
tenants, operators, and all successors in interest and assigns.
2. Major modifications to the plans submitted and approved as pad of the application, as
detennined by the Village Manager or designee pursuant to Section 21-322(t) of the Village Code,
may require the applicant to return to the Council for approval.
3. All new encroachments along the Collins Avenue and 96th Street right-of-way shall receive
FDOT approval prior to the issuance of any building permit that includes such encroachment
s.
Bal Harbour Resolution 2017-1077 3
FOOT approval of roadway and driveway connections shall be obtained prior to construction, and
the Village shall be included in the consideration of any FDOT variance requests. The Village
reserves the right to reconsider its approval if there are substantial modifications by FOOT.
4. MI elevations, including the elevations facing Collins Avenue and 96± Sweet, shall be in
substantial compliance with the plans approved by the Council.
5. All driveways shall comply with the requirements of the Village Code.
6. MI landscaping shall comply with Chapter IBA of Miami-Dade County Code, and all
vrnage requirements.
7. All building signage shall undergo a separate approval and permit process and shall comply
with all Code requirements in effect at the time of approval.
8. Only those encroachments depicted on Exhibit M are allowed. Additional snctures shall
not be placed on public rights of way, and sight triangles shall be maintained, with no landscaping
or banier over 30 inches in height, uniess otherwise approved by the Village Manager
9. The display windows along 96th Street shall be maintained with merchandise or
representations thereof at all times and shall not be used as billboards for general advertising
purposes.
10. The effectiveness of the approval of the Master Site Plan and Development Agreement is
contingent on the eactiveness of the small-scale comprehensive plan map amendment, which
cannot occur until the Village adopts its EAR-based comprehensive plan amendments as required
by state law. Site preparation activities and the boundary wall along Park Avenue that are
consistent with the existing Comprehensive Plan can proceed prior to the comprehensive plan
amendment becoming effective.
Construction Conditions
1. Prior to the issuance of a building permit for each phase of construction, a Method of
Transportation (MOT) shall be submitted to the Village Manager or designee for review and
approval prior to FOOT review and the issuance of a building pennit The MOT shall address any
traffic flow disruption due to construction activity on the site including a detailed explanation of
how deliveries will be conducted during the various phases of construction.
2. For the entire duration that the Fairfield Manor site is used as a staging or construction site,
the property will be kept in orderly condition, free oflitter, debris or other nuisances, The property

Del Harbour Resolution 2017-1017 4

 shall be entirety enclosed by a sturdy wood (or appropriate alternate material) fence
and screened
by a hedge or other vegetation so as to minimize the visibility of the site.
Landseapelfluffer Conditions
1. Prior to the issuance of a building permit, the applicant shall submit a revised landsca
pe plan
to the Village Manager or designee for approval. This condition shall not apply
to the issuance of
permits to renovate the existing shopping center and or tenants of the center.
2. The design of the 20’ tail buffer wall along Park Drive shall be submitted to
the Village
Manager or designee for review and recommendation, which shall not be unreaso
nably withheld,
and to the Village Council for approval, of its design, quality, appearance and compat
ibility with
neighboring properties prior to the issuance of a building permit, and shall be entirely
landscaped
so that it is not visible from Park Drive to the maximum extent possible. The landsca
ping shall be
maintained by the applicant.
3. The construction of the 20’ tall buffer wall along Park Drive shall be constructed
as one of
the initial elements of Phase I of the project.
4. The applicant shall continue to refine the design of the rooftop parking deck. Additio
nal
landscaping areas and shade tees or a variety of plantings shall be provided,
along with the
possibility of adding architectural shade structures to add visual interest from
the adjacent
properties that may have a view of this parking area.
5. MI mof.top fixtures, air-conditioning units and mechanical devices shall be
clearly noted
on a revised roof plan and elevation drawings and shall be screened from view, so
long as such
screens do not interfere with the operation of such equipment, in a manner to be reviewe
d and
approved by staff
6. The new parking structure façade along 96th street shall be designed in such a
manner to
minimize the structure’s exterior appearance as a pwldng garage and to minimi
ze any light
pollution or noise that may emanate from the structure or vehicles that will be
parked in the
structure.
Traffic Flaw Conditions
I. The applicant shall work with the Village staff to explore the redesign of the main entranc
e
from Collins Avenue to accomplish an angle of entry as close to 90 degrees as possibl
e.

Bal Harbour Resolution 2oll-la7l 5

 2. The applicant shall work with Village staff to ensure that the redesign of the medians along
Coffins Avenue do not negatively affect the egress and ingress front the proposed new Village Hall
site,
3. The applicant shall redesign, in a manner to be approved by staff the proposed new North
Driveway ticket/pay booths moving them as far into the site near the curve as possible for the
purpose of adding additional vehicular queuing, so tong as it does not adversely affect vehicle
circulation. Alternatively, the applicant may consider removing the pay booths entirely and using
alternative methods for paid parking (pay by plate, flat rates, etc.).
4. Because the plans indicate that the Collins Plaza parking area will be valet-only, the
applicant shall remove the parking ticket dispensers from the secondaiy (valet only) enhance from
Collins Avenue. The applicant shall also remove the parking pay booths from the secondazy (valet
only) exit to Collins Avenue.
5. A vehicular and exterior pedestrian way-finding signage plan shall be provided.
6. The one-way westbound driveway from BameysiBuilding Z to the north shall be redesigned
to become a two-way drive.
7. The applicant shall work with the Viliage staff to explore improvements to the valet pick
up and drop-off design at the Bameys/Buildthg Z entrance to minimize congestion and provide
safer access.
8. The applicant shall work with the Village staff to explore the redesign of the valet pick-up
on the main driveway next to Neiman Marcus and provide a dedicated pick-up area to improve
safety.
Pedestrian/Public Realm Conditions
1. The applicant shall remove 10 parking spaces and trees in planters located adjacent to the
pedestrian-only central walkway of the Collins Plan in order to create a pedestrian promenade of
a consistent width (at least 60 feet wide) connecting from the sidewalk along Collins Avenue to
the Porte Cochere entrance to the Shops.
2. The applicant shall work with the Village staff to establish a pedestrian access from 96th
Street directly from the street on the Shops’ property into the site, along the western end of the
project that minimizes pedestrian conflicts with vehicular traffic.

Hal Harbour Resolution 2017-1077 6

 3. Applicant and Village will work to provide a better pedestrian experience along Collins
Avenue fronting the proposed expansion to Neiman Marcus. Topics to be explored may include
but are not limited to: the sidewalk should be expanded, the valet-only street should be minimized
to enhance pedestrian access, and the paving freatnent should be modified to reinforce pedestrian
access similar to the plaza areas.
4. The applicant shall develop and install adequate pedestrian safety devices (i.e. stamped
crosswalks, pedestrian activated traffic light control devices, lighting and signage) along the main
entrances to the Shops at the new northern entrance from Collins Avenue and the new southern
entrance to the main parking structure from 96th street to ensure safe and easy use by pedestrians.
5. The North/South service corridors along the Collins-facing facades of the existing mail
buildings on either side of the Collins Avenue valet pick-up shall be studied, and aesthetic
improvements or landscaping or both may be incorporated into the plans.
Loading and Service Areas
I. Fully enclosed au conditioned trash room(s) that are sufficiently sized to handle the trash
load for all restaurants on site shall be required located in a manner to be approved by Village
Manager or designee, which shall not be unreasonably witbeld. Doors shall remain closed and
secured when not in active use.
2. Trash dumpster covers shall be closed at all times except when in active use.
3. Delivery tucks shall not be allowed to idle unnecessarily in the loading areas.
4. The delivery area fronting 96th Street shall have a gate, designed in a manner consistent
with the overall architecture of the façade and shall remain closed except during actual reasonable
delivery periods.
5. Delivery and trash trucks shall only be permitted to park in the designated loading areas.
6. With the exception of deliveries to Neiman Marcus, Barney’s and food establishments,
deliveries from the Collins Avenue entrance shall take place only between 8:30am and 5:00pm.
These restrictions shall not apply to the 96th Street delivery entrance.
7. Prior to the issuance ofa building permit, the applicant shall provide Village staff, for review
and approval, a drawing showing the proposed routes / locations for all delivery vehicles both
during construction and during the operation of the expanded project

Bal Harbour Resolution 20 17-1077 7

 Section 5. Violation of Conditions. Failure to adhere to the terms and conditions of this

Resolution shall be considered a violation of the Village Code and persons found violating the

conditions shall be subject to the penalties prescribed by the Village Code, including but not

limited to, the revocation of any of the approval(s) granted in this Resolution. The Applicant

understands and ac)aiowledges that it must comply with all other applicable requirements of the

Village Code before it may commence construction or operation, and that the foregoing approval

in this Resolution may be revoked by the Village at any time upon a determination that the

Applicant is not in compliance with the Village Code or the conditions of this Approval.

Section 6. Effective Date of Resolution. This Resolution shalt become effective upon

the effective date of the Small Scale FLUM Amendment. If the Small Scale FLUM Amendment

is timely challenged, then the Master Site Plan approval may not become effective until the state

land planning agency or the Adminisfration Commission, respectively, issues a final order

determining that the adopted Small Scale FLUM Amendment is in compliance.

PASSED AND ADOPTED this 16th day of May, 2017.

7 Gabriefomisman, Mayor
AflEST: 4

DwigM S. bile, 9 llâe Clerk

Bal Harbour Resolution 2017-1077 8

 Approved as to Form and Sufficiency For Use and
Reliance of Bal Harbour Village Only

Weiss Seroth flelftfrnn Cole & Biennan, P1.

Village Attorney

Bal Harbour Resolution 2017-1077 9

 Exhibit I
Major SIte Plan approved by Bal Harbour Village Resolution No. 2017-1077
(5ee following pages)
 ___

it
/
/
/
/
/
/ - rI.—.
. 2

/
/
/
/
/
/
/
‘F
—F

/
/
/
1

cii .r11i[.
• 4 J_+-1r
• .c__•.Il I
I • _

— .,._J4 - I 27. - , . ——

Exhibit I Major Site Plan

-

Approved by Sal Harbour Village Resolution No.2017-1077

Sal Harwur, Fl July20 2017

ZYSCOViCHl,
II.,,
,RrH. I
“n,.,,Ir, I,r ft. ;—Iha,r,,’,,J’flI!
 It
g
N
N -
o
4
—
o
(N
o
- x
U
C g >-‘-
o a:
-
z a
D
— 0
o
U,
a)
r
a) 1-i
“-4
Cu
>
S 0
0
(C
C
=
9
Cu CC
0
>‘
a) 0
4-,
Ln -o U
a)
0 >
0
,1 a
II a
4-,
LÀ:
-0
-c
x
 1• — (

\\,‘\\
‘3
[‘
\\
—

1
r
i.
:2 I)’
.1 191:
‘.Hii:H N.

Exhibit I Major Site Plan -

Approved by Bal Harbour Village Resolution No.2017-1077

3:.,) (:3,.—-
nrT Sal HaiXut 9 July 20.2017
.3,t.(afl,3,r. -3:
133f.3333 35 •.,.3—:.r,,1)r— 343: ie3-333tt,.3.3l)
ZYSCOVICH ‘

‘fl:Jtwa(,53_4J()33,p -‘(4,.
 ___

Exhibit I Major Site Plan

-

Approved by Gal Harbour Village Resoluton No.2017-1077

6.1 Hatow A JUEy2O.201?

as tt..;.W1j.lIh,,e
ZYSCOVICH
I—,A’-i.,I.Itien.tCfl
 ,1 -

/
/1 I:

1
I

Exhibit I Major Site Plan

-

Approved by Bal Harbour Village Resolution No.2017-1077

B.IHfloz Fl July 20, 3011

r’—wIt, r
I.
ZYSCOVICH
-
flIt —
 ,1

• I-’

/
/
/
/

.7 ‘1

C’

I,

Exhibit I Major Site Plan

-

Approved by Bal Harbour Village Resolution No.2017-1077

.&yfl2W

J;i ZYSCQVICHI;;;
it
 ____________
________

/
N
4—

//
/

I!
,IlU’UIITIIl I
4t

-. - ILIALULI- ,-=
LJL
%\\\%S\\\% U!L1 -

llniiffll/llllllh/ll/lllllla.:uhhI tIIIItIIr I(iuwuuimiw

IiIjlIIIIIIIIIIII)IIIII)I)jIII)III1III1I)IIJ)11 — / —I
I
-

I A

Exhibit I Major Site Plan

-

Approved by Bal Harbour Village Resolution No.201

7-1077
-: - a H.IOW. Fl . 2017
fl:
.

•
.: ..
•

!*.j I I

Exhibit I Major Site Plan

-

Approved by Bal Harbour Village Resolution No.2017-1077

— -

—— — —a..——,1k..--.-- I J J BalHflourfl Ji 20, 2017

PrJ.-I..--

:,,c,,.J, ,t,rr. .t1,?I,,,,

ZYSCOVICH’,
- r ,,nt,..
 I,
N
N
• I. I. 0
I
I,
F
I
J Jr
x
>..
20
w
.J ¶1
(9.?.
—
fi
Ti
II
1’
C
1:1
J‘1r
(0
C
a) P
0
:1
I
ii
PB I[J]
I I3

3I
0 ii
LLti
-C
x
•1

Lu
I1
 E4nLL Uiw±t[zm &

Cr—

Exhibit I Major Site Plan

-

Approved by Bal Harbour Village Resolution No.2017-1077

B&H.Itat.FI July 20. 2017
H

j
sit,

—
 __F
I

L
i ‘ii
‘C

0
-t
:1

II
-o
-C
0-
V I
II

j-
0 0
0
a -I
0- 0-

C -p
a 0* I

0 -o
C) 0)
z
=
ii C-
0
C I!
-I
Li II

C) I LA
(C — — I
a
a
VI “II
F- I
I-I 0
C fl
-p -
Zn
-o 0
-n
z z
I I I
-f
0 1 H
NJ
C
-I

-a
C
a
—a
4!

N F(i!1!ij1i liMi i
 Exhibit I
Fairfield Property Title Exceptions
1. Taxes and assessments for 2017 and subsequent years.
2. BuildIng, zoning and subdivision laws, ordinances, state and federal regulations;
3. Covenants, conditions, restrictions and declarations filed in the public real estate
records;
4. Matters which would be shown on a survey.
5. Any lien provided by County Ordinance or by Chapter 159, Florida Statutes, in favor of
any city, town, village or port authority for unpaid service charges for service by any
water, sewer or gas system supplying the insured land;
6. Development Agreement between the Village of Sal Harbour, Florida, and Sal Harbour
Shops, LLLP, recorded in Official Records Book Page_.
__,

7. Grant of Utility Easement from Bal Harbour Shops, LLLP in favor of the Village of Bal
Harbour, Florida, recorded in Official Records Book__, Page_.
8. Restrictions, dedications, conditions, reservations, easements and other matters shown
on the plat of RESIDENTIALSECfION OF BAL HARBOUR, as recorded in Plat Book 44, at
Page 98.
9. Easements as set forth in Section 14 of that certain Warranty Deed recorded in Deed
Book 3430, Page 298, as affected by Assignment and Assumption recorded in Deed Book
4022, page 153; Resolution and Declaration of Amendment5 to Covenants and
Restrictions for the Residential Section of Sal Harbour recorded in Official Records Book
11640, page 137; Resolution and Declaration Concerning the Covenants and Restrictions
for the Residential Section of Sal Harbour recorded in Official Records Book 11672, Page
267; Resolution and Declaration Concerning the Covenants and Restrictions forthe
Residential Section of Sal Harbour recorded in Official Records Book 11686, Page 931;
and Assignment and Confirmation of Assignment recorded in Official Records Book
15377, Page 3530.
10. Easements granted to Sal Harbour Village by instrument recorded in Official Records
Book 17643, Page 1593.
11. Reservation of easement for ingress, egress, access and subsurface construction by
Grantor and Grantor’s affiliates and their respective agents, employees and contractors,
and their successors and assigns, under, over, and across the portion of Sal Cross Drive
abutting the Property.
NOTE: All recording references are to the Public Records of Miami-Dade County, Florida.
 Exhibit K
SunTrust Property Title Exceptions
1. Taxes and assessments for 2017 and subsequent years.
2. Building, zoning and subdivision laws, ordinances, state and federal regulations;
3. Covenants, conditions, restrictions and declarations filed in the public real estate
records;
4. Any lien provided by County Ordinance or by Chapter 159, FlorIda Statutes, favorof
in any
city, town, village or port authority for unpaid service charges for service by any water,
sewer or gas system supplying the insured land;
5. Development Agreement between the Village of Bal Harbour, Florida, and Bal
Harbour
Shops, LP, recorded in Official Records Book Page .j
6. Restrictions, dedications, conditions, reservations, easements and other matters
shown
on the Plat of SUN PLAT, as recorded In Plat Book 134, Page 67, of the Public
Records of
Miami-Dade County, Florida.
7. Terms, conditions, and easements as contained in that Utility Easeme Bill of
nt Sale and
Agreement made by and between SunTrust Bank, and Bal Harbour Village, recorde
d April
4, 2000 In Official Records Book 19053, Page 4236, of the Public Records of Miami-
Dade
County, Florida.
8. Terms and conditIons as contained in that Lease Agreement and Master Agreem
ent
Regarding Leases made by and between Inland American St Florida Portfolio,
L.LC, as
landlord, and SunTrust Bank, as tenant, as referenced by that Memorandum
of Lease
Agreement, including but not limited to, the right of first refusal to purchas
e property
held by tenant, recorded December 26, 2007 in Official Records Book 26127, Page
2494,
of the Public Records of Miami Dade County, Florida.
9. Grant of Easement In favor of American Traffic Solutions, Inc., recorded March
15, 2010
in Official Records Book 27214, Page 575, re-recorded August 12, 2010 in Officia
l Records
Book 27386, Page 1773, all of the Public Records of Miami-Dade County, Florida
.
10. Any lien or claim of lien for services, labor or materials which may take priority
over the
estate or interest insured by reason of that certain Notice of Commencemen
t dated
September 11, 2012 and recorded September 12, 2012 in Official Record
s Book 28268,
Page 3434, of the Public Records of Miami-Dade County, Florida.
11. Survey prepared by South Florida Land Surveyors/Inc., dated November
19, 2012 under
Job No. 07-1497B shows the following:
a. Sign crosses over property line;
b. F.P.L pad crosses over property line;
c. Brick payers cross over property line;
d. Concrete, stone and asphalt sidewalk cross over property line;
e. Concrete pad crosses over property line;
 f. Electric service crosses over property line;
g. Asphalt pavement crosses over property line;
h. Asphalt pavement, concrete curb, concrete pavement, C.B.S. building and
overhead canopy encroach into 10 foot utility easement:
Asphalt pavement, concrete curb, concrete pavement, C.B.S. building, overhead
canopy and concrete steps encroach into water main easement;
j. Sign, concrete curb, asphalt pavement, concrete pavement and overhead canopy
encroach into 20 foot utility and access easement; and
k. Concrete stone and asphalt sidewalk, concrete slab, concrete curb and concrete
pavement encroach into 6 foot utility easement;
I. C. B.S. Building encroaches on 10 foot Utility Easement on North Side.
m. C.B.S. Building encroaches on Water Main Easement on North Side.

All recording references to the Public Records of Miami-Dade County, Florida.

 Exhibit L
Public Use Areas
(see following pages)
 Hxtaaq SIlO9$
6U4TS A1ThW &A
tOTAL PTJt*t list tMO
lF
PtCPflWE Zf
IITPRO%tkItMS
3U SACAt PflhT CF W?
rntAt Bli HA
 ________________________
______

____ __ _____
—--e IThT_L&_ ia -.
7/7 / ,r
;d11i.’tt—-_.i.
‘.1/f :!
U /) ‘///
/
F t I
t If ‘I
I4MS< t4*1W%4 J lUi — —
I
Jr —_——.— —
{f
:lh Iji
Iji[ :jI
—
1
c: z:
4 rz’ isaL. nuaaua
-
-— - —
 ___ ___ ____ __ __ __
zo,,
—-
*0-- * 0—
ni urns.
F:.
HLt1iLH [I
FR
C’
‘ UEL fljsjj
I -
‘IncA
-Zn
Ht:
I b
‘Ii E
nil LS T\
;Ii
- - - -
fl
3:1 flr i: I,
_____G —
—
I - — — IflC.’, A tfl
i2 IkOItAI COSn” ?fl TL.I
c=:1 IW.bPI
LI4 ‘Si 1145 LLNflW& 31’ fl TI -
TDT, PISLC USE 1EEMEP IflklmJ’p EAt RU15C!J 5iIQp
pqOP!RnLrn n,5 I
IJ3a 1Cfl 004’ tO i tPOADJOCl

[d
 ______ ____
_______ _____
____ ________
____

T:Tk PJ8LC S1 LA!O3 8flw 8k M8JL O1 7/

FJThL8f ‘7838’ ‘Nt —,-
IDYlL 8k IUM PCIIT OPWAT 8CDQOJUfl
:8JrnP I?r9

‘*r — .
•_ — •.
I
I
fill 1.:

1: • =

II

tq$ck1
_\ .cv” d 1Li’i‘.li I II

—
- =
=

i_n .‘i

••lSlLs*lI

- 0 *G*
L404
 Exhibit M

Project Encroachments

(see foIowing pages)

 -Li m
2 =
0
-c -I
H I— C
0 S
S.
— 0

-I,
aCD
C =
inlj
Ci
C C
-t
S
(C m
0 S
a C.,

ii
It a,
Li I m
n
i C,
Zn
C
-
2n
‘AZ
I C,
p =
r m
-S.

II
CS,
C
-I
C,,

ii
C
IIU
ha
C
-a.
-1
 1
.7

Encroachment Diagram 1 — . —

1’=30’ May 9, 2017

Maq’ t flnfl4c’d Z YS COV I C H
A R C H I T E C T S
‘ N Stre
_i ft ?X
rnwtn452 •
 /
/
/
/
/
7,
/
/
/
/
/
I,
I,
//
Encroachment Diagram 2
iTOBiiHarb6ifWhàs] 1=30’ May 9,2017
— — .cn p.n, sn,o wuawe
.nIWOC’U*n Mt#slaflnI SIC ZA Y$ C O’V I C H
R C H I T E C T S
‘
U_I. ft fli32 i
,,,Sml5nw’
Fl

-
 ___
___ ___—
___ ___

fl m
0
-I
1 0
03
0
NR a
Co
-S

0
C,
C
ill 03
S I
03

ii I
I 3
a
I

r — — — —- —___ —___
-

39.OT ——
a
0

III
 I
2 s.
I
J.
0 1
I
1•
0
:t 6
U
cø
I
0)
0
0)
E
1=
0
0
0
C
LU
 ________

1
H Ii
H

SPACE
ENCROACHING
PROPERTY
LINE BY t-ir
I,
PARKING SPACE
ENCROACHING
PROPERTY
UNE BY 4-r

PARKING SPACES
Encroachment Diagram 5 — . — PFcW 13¤ 1MM OF

1I2OBáI H!P;J7:i 1=3O Mayg, 2017

.InI rao 1WflnI d4,C4, ii I9er—I &TL.W n,,WIwc.cI ZA RYSC HC IOV
T E
I C H5 N nII
MW F WJ2 2X4
%I F
. .tzn ‘
C 1 ,e,nsm 3ndv -
 7
• Ia,LI1TEPUCI
. , tn
S I a i I H Z N V
.s — ant. .... oaqp es
‘
‘ H D I AO D SA Z • - —
LLOZ ‘6 Aej
1)43,
[Zi
AYJG Mi M)J3d — S —
ii g wejbeia juawqcoiou
Ca
P.:
2
•fr.S Al INI1
AIH3dOU
ONIHOVOHON!
NSIS
.cL,PLAS3Nfl
LLU340U4 I
9NIHOVUUON3
NIVJNflDJ
- :Nr:
.L-.L Al 3Nfl
AIO3dOUd
L
- t;”h
ib;- .
J3 AtThfl
• ALN3dOHd
C DNIHOVOHON3 C
30WS ONNHVd
II) Mfl je
V U
Lflwfly
1!
/7
.j1
I;
.Z-,LL AS 351! iv a t ,
AIR3dDHd
ONIH3VDHON3
S]3VJS SNWNVd
 I
0
C,
9d ‘pfr 8d)
-Jr INIOd
--
C
n
- - — --— - II
C!,
ç’ D
o
-7
ci
0_
(5 -
to
jj
I
Lc
, -n
CL i5 in
I
-J
D El i
H .7.
/ F-
E
C,
/
S
0
C
1 C
S
0
0
=
LU
4
m I
= S
C, a
a
-T
a-
C U
U
T Ui
c-A S
C U
zv C)
m
I-fl
ji
a
U
3
CD -p aa
I I
c-i
= I -o
b0 S
a
—A Cl) a
C C
z
0) -I

Ca I C
0)
-y
3
.
I U
U
U
0 a
0
1
H
I I a
I
U
I I
a
aU
S
I a
S
a
a
U
aa
U
I a
a
a
I
a
H a

r I
a
I a

a
a
a
a
S
— a
I —4
I
I
C
I
/
, a
a
aaaaaa...aasaflae.aa3Iaa.n.a....aft.a.naaaa..F
S
N
S
N
N
S
N
a
N
a
N
N
N
N
S
S
a
S
a
N
C
S
a
N
N
a
*
a
S
a
•
•
—
• -r
•
•
N --
•
- -r
• -7
• q
, 5sm.sssSns,ssflSIssggfla.asgflSSflflSSna*,s
I
I
j
a,
I
E
-N
C)
Cu
— I
0
C
03
E
.1.1.s C
Cu
a
-N
C
C
LU
 — —

—
—
0 —
—

I •1\
COW.&Mfyy

S.
\

-a

1023445’ T’ T
(RB. 60, Ft. 39)

SIGN SIGN
ENCROACHING CNCROACHING ENCROACHING
PROPERTY PROPERTY PROPERTY
LINE sir LINE BY 17’-O LINE BY 2’-

aJT

A 1 PM • t t
pAwlurn?

Encroachment Diagram 10 — . a RTT 1K

1”=30’ May 0,2017

—CCI
. Annsea u cso tflfl WIn eIao Wn0,In
IA AO CCI CImC* flccAt 1 nItP CI dfl .ApWWEhC ZYSCOVICH
ARCHITECT
lNScIvIeAt ol
M.r, Ft W22 4 A
MCrUC CI,$ C 2011 S I YZSm I 371 4321 AC— 1YCIAC fl

I
 I
S85’3q17w

I
IDOW

.1.

I
U,

AREA No.3
BUSINESS SEflIQN
JeL C

I
C,

NOT A PART
z
C

OF tiis

Encroachment Diagram 11 WfrSOF

SW

1120-Bal Harbour Shops 1=30’ May 9,2017

n,nn
lam .
wncncow Wu,n,
.rmwTfl,at’hn Afln
Ao.= u_t ,w,n C C7I
Sl1 1w
nt.1. th.,v,
wwk
.*Wrma ZYSCO VICH
ARCHITECTS
N&,,4*!.d rmn
Msi. ftDIflJ
Thrn,=
I,
 ——it.

/ I..

/ —.__ It.

/
/
/
/
/
1”
/
4/
p
/

F * VC ii C
I•

I
Encroachment Diagram 13
itOiiiHiibáurShoi ] MayY,2017
.7nSn Ia Or7 W1C,t Mtç
•—
rLtI &I.W WW ZYS C OV ICC H
A R C H I T
N
MN FL
Obd 77Th RI
• ,t@iynco
T S I5377I 3774MI 27.1I
 _ _ _ __
Iii
H EJ
N
— I
2t
V ni O
N Ur
UI u
I >-n’
Nc
N / El!
I
/ Ii
I rn:
4.. I
—
zcnIt
—
= fl
\ I S
V. ‘—I
N ct
— 0:
I
0 9’
H
t
 ‘‘‘ S I D 3 1 P H D N V
. Kit lJ Wn
U Itt — aja N qaaq ia ica
‘th o lotus aa ntcar*alM
‘
H D I ItO D S AZ
LWrOLADMI
- soqgnoqJe 1eg-çjj.
DI3
3U AUSdONd — B —
SIN3LAIHOVOHON3 U3SOdOHd
 ‘I

)GI Oflr I

.LL
18 Spaces

Encroachment Diagram 1 — . — PfiO9UIW 1.1W MAS

Ti2O-BaiHaitüOpiZWcj 1=30’ May 10, 2017

TI flic, A’flat Mfl e,
Z YS CO V I C H
A R C H I T E C T S
‘
ft tI flS WDipC’
 -A

11111111

Encroachment Diagram 2
H2DiáfhiibiürShopf 1=30 May 10, 2017
tt41tlCA AIq Ifl.I&
— ‘
eflpTWbt
.— ZY$ C OV I C H
A P C H I T E C I S
N Bs Dk,d flt Fl
hln ft 4 “,@lyKq

C -
Encroachment Diaqram 3
1120-Bal Harbour ShOPS 1=30 May 10, 2017
—=‘
Atwic MpCX)
Sn
“nO”’
‘“
Z VS C OV I C H
A K C H I I E C I S
N
Mn fl.
&S VTh fl
73)4 .
,rns
 /
a a

a a a

a a U

0/ U a
33,076 SQ. FT.

a a cj

r
a a C

Encroachment Diagram 4 — - —

1iOBuiHàrb&urShos’ V=30 May10, 2017

njN iflI MI W40C1 Nmn U1t1t.,rm. th
4flMrVfwCflr7 flgt db ZYS C OV IC H
A H C H I T E C V S
Mt1 FL I24
I tt@rc. n
mItimw,
 on 9700 SLI
ii

Encroachment Diagram 5 — . — PRCPOflY LifE

ii2O!ai(irbäiiSbäpi :
10=301 MaylO,2017
*
CR
.
,W4C*ta M Z YS C OV I C H
A B C H I T S C T S
‘
N
Mt’ ft
O 2fln fl
a. •

-J
 ____
_

PROPERTY
LINE BY 21-9

n
SIGN
ENCROACHING
PROPERTY
UNE BY s’-r

4
SIGN
ENCROACHING
PROPERTY
LINE BY 3•-5”
Encroachment Diagram 6 — — — NCPffiW L*¤ lies OF

1f20-BaI Harbour Shopte 1 May 10,2017

— ——
.qg’mwm —o,.r’s4ict’eu M,#
I u.s——— ——
.wm,u tvn,e Z Y $ C 0’s’ I C H
A R C H I I E C T $
N pq,c frJ I’m
z, n,. . sr,co ,‘m

LLJ .‘iSh
_

a _J
 if
0 0 D
a a 0
0 0 a
Lu I
(
COlD a
0 a U, 0
r.J
a a a
0)
0w> ‘C
a a a
I
B B U U
r&=n ii I
;;Jj
rj !
2
Ct
I
U 0I
Ct
0
=
a,
a 0 a a 0 2
0
I
LI.. a U
A Ct
C
0
=
LU
 _

SET

=
=
=
=
=
=
=
Encroachment Diagram 9 — . — PI?OPERTY [0¤
3] AIkUfl

iWOBiHiài6óir 111=301

At
. Yn,mn a5on

C. it
w ,wc1 Un n flw ,w.cI I,
fl2T U41lt1knfl MaflflS.vI
IVfl n)c NI?
if
npq flwC ZYSCO VICH
ARCHITECT
PNbc.nO,d 17,10
U.n ftflIfll
S 177 Sm I 5fl ‘521

..:.:
 . .‘......, .1
— ar-wwt
 m
=
Ci -Th
-I-—

I,
I,
I,
‘IN• F
-j ‘
rI
Ft
.
-
•
“H
fi.

I,
I’.
•I

I,
I,
r I,
 S
a

4 g
Ill
h
I;

iip
nih
Zn

2n

II
0

ii
I.c
II -I.
0
‘.3
C
-1
 Exhibit N
Park Drive Utility Easement
(5ee following pages)
 ______
______
______
_____

This instrument prepared by:

Gall 0. Serota, Esq.

Weiss Serota Hetfman Cole & Bierman P.L
2525 Ponce de Leon Blvd., Suite 700
Coral Gables, Florida 33134
Telephone: 305.854.0800

Folio Number 12-2226-006-0060

GRANT OF UTILITY EASEMENT

THIS GRANT OF EASEMENT dated

2017, is made by
BAL HARBOUR SHOPS, LLLP, a Florida limited liability limited partner
ship (“Grantor “) In favor
of BAL HARBOUR VILLAGE, a Florida municipal corporation (“Villa
ge”).

RECITALS

Grantor is the owner and holder of the underlying fee title

to certain real property
located In Bal Harbour Village, Miami-Dade County, Florida, and
more particularly described in
Exhibit A attached to and made a part of this Grant of Easeme
nt (“Easement Parcels”).

The Easement Parcels are comprised of (i) the east one-half

of a portion of Bat Bay
Drive, (ii) the east one-half of a portion of Park Drive, and (iii)
the south one-half of a portion of
Bal Cross Drive (the “Bal Cross Drive South Parcel”), all as shown
on the Plat of RESIDENTIAL
SECTION OF BAt HARBOUR, recorded In Plat Book 44, Page
98, Public Records of Miami-Dade
County, Florida.

Village wishes to acquire a perpetual utility easement over,

across, under and through
the Easement Parcels for the construction, installation, mainten
ance, repair, removal and
replacement of water, sewer and stornwater facilities (collectively,
“Utility Facilities”).

BHS-FM, LLC, a Florida limited liability company (“North Owner”

) owned and controlled
by Grantor, is the owner and holder of the underlying fee title
to the real property described in
Exhibit B attached to and made a part of this Grant of Easeme
nt (the “Bal Cross Drive North
Parcel”).

AGREEMENT

For Ten Dollars and other good and valuable consideration,

the receipt of which is
hereby acknowledged by Grantor, Grantor hereby grants to Village
, without representation,
recourse or warranty, and subject to all matters of record,
a perpetual non-exclusive utility
1

0027.log/ Bal Harbour Village/Utility Easement vS

 easement (“Utility Easement”) over, across, under and through the Easement Parcels
for the
construction, installation, maintenance, repair, removal and replacement of Utility Facilities.

Village, by acceptance of this Utility Easement, acknowledges that the location of the
Utility Easement under the Bat Cross Drive South Parcel may be affected by Grantor’s
construction of an underground parking garage under the Bal Cross Drive South Parcel.
By
acceptance of the Utility Easement, Village agrees to relocate a portion of the Utility
Facilities
and the Utility Easement to the Sal Cross Drive North Parcel to the extent reasonably necessa
ry
to avoid interference with Grantor’s construction of the underground parking garage, provided
that the Grantor obtains and delivers to the Village a Grant of Utility Easement from
the owner
of the Bal Cross Drive North Parcel in substantially the form of this Grant of Utility Easement.

This Grant of Easement will be binding on and inure to the benefit of Grantor and
Village, and their successors and assigns.

[SIGNATURE BLOCKS ON FOLLOWING PAGES]

0027.109/ Gal Harbour Village/Utility Easement vS

 ______
______
______
______
_____
_____,

This Grant of Utility Easement has been executed by the

Grantor on the date set forth
on the first page of this Agreement.

Witnesses: GRANTOR:
Signature___________________________ BAt. HARBOUR SHOPS
, LLLP, a Florida limited
Print name:_________________________ liability limited partnership

Signature: By:_______________________________________
Matthew Whitman Lazenby, General Partner
Print name:_____________________________

STATE OF FLORIDA
COUNTY OF MIAMI-DADE

The foregoing instrument was acknowledged before me

on July 2017, by
Matthew Whitman Lazenby, as the General Partner of Bal
Harbour Shops, hIP, a Florida
limited liability limited partnership, on behalf of the limited
liability limited partnership, who is
I personally known to me or I I has produced a valid driver’s license as Identification.

NOTA
RY SEAL

Notary Public, State of Florida

Print name:___________

My comml5sion expires:

0027.109/ OaI Harbour Village/Utility Easement vS

 Exhibit A
Sketch and Legal Description of Easement Parcels
(see following pages)

0027.109/ Bal Harbour Village/Utility Easement vS

 LOCATION MAP
nfl Itis

DESCRIPTION:

THAT PORPON OF SAL BAY DRIVE. PARK DRIVE AND SAL CROSS DRIVE
ACCORDING TO THE PLAT ThEREOF RECORDED IN PIAT BOOK SO, PAtE AS SHOWN ON THE BUSINESS SECTION or 641. HARBOUR.
39 OF THE PUBLIC RECORDS OF MIAMI—DADE COUNTY,
FLORIDA. MORE PARTICULARLY DESCRIBED AS FOLLOWS:

BEGIN AT THE NORTHWEST CORNER OF AREA N.Z. AS SHOWN ON SAID

BUSINESS SECI1ON OF SAL HARSOUR
I
THENCE SOUTI-I 8gl2’3r WEST ALONG A VHS RADIAL TO THE NEXT DESCRIBED
CURVE, A DISTANCE OF 25.00 FEET TO A P01W
ON THE ARC OF SAiD CURVE (CONCAVE WESTERLY) RA\nNG A RADIUS OF
1077.67 FEEl AND A CENTRAL ANGLE or O726’3
2;
THENCE NORTHERLY ALONG THE ARC OF SAID CURVE, A DISTANCE OF 139.98
FEET TO THE BEGINNING OF A COMPOUND CURVE
(CONCAVE WESTERLY) HAViNG A RADIUS OF 3490.00 FEET AND A
CENTRAL ANGLE OF OO1934”:
THENCE NORTHERLY ALONG THE ARC OF SAID CURVE. A DISTANCE OF 19.87
FEEt;
THENCE NORTH 452617 EAST, A DISTANCE OF 582.54 FET TO THE BEGINNING
OF A TMIG9$T CURVE (CONCAVE
NORTHWESTERLY) HAViNG A RADIUS OF 766.00 FEET AND A CENTRAL ANGLE
OF 45’37’OO;
THENCE NORTHEASTERLY ALONG THE ARC OF SAID CURVE. A DISTANCE
Of 609.86 FEET;
THENCE NORTH 65365Y WEST, A DISTANCE OF 5.46 FEET TO A POINT
ON THE ARC OF A NON—TANGENT CURVE (CONCAVE
WESTERLY) FROM WHOSE RADIUS POINT BEARS NORTH 6T39’2r EAST
AND RAVING A RADIUS or 761.00 FEEt AND A CENTRAL
ANGLE OF O1’1423;

THENCE NORTHERLY ALONG THE ARC OF SAID CURVE. A DISTANCE OF 15.46

FEET;
THENCE SOUTH 66’36’53 EAST. A DISTANCE OF 310.48 FEET TO THE WEST LINE OF COLliNS
AVENUE (SR A—i—A);

DESCRIPTION CONTINUED ON SHEEt 2

THIS IS NOT A SURVEY
PREPARED FOR:

VILLAGE OF GAL HARBOUR

.

I1 OS/12/I1 H/A R(
REVISION OWN DATE Fe/PG CKD
CRAIG A. SMITH & ASSOCIATES SAL HARBOUR SHOPS
7777 GLADES ROAD, SUITE 410 EASEMENT DESCRIP11ON
.

.
OS BOCA RATON, FLORIDA
(561)791—9260
CERT. NO. L60003110
OS VILLAGE OF SAL HARBOUR, DADE COUNTY, ft
PROJECT NUMBER: 17—1146—0691
(RI WMt 1Q—I14C—BH—SHOPS-FJSW.dwg CT I6
 THENCE SOUTH acswoa EAST ALONG SAID WEST LINE, A DISTANCE OF 63.07 FEET
TO THE PC*11 ON THE ARC OF A
NON—TANGENT CURVE (CONCAVE SOUTHWESTERLY) FROM WHOSE RADIUS POINT BEARS NORTH 85’Cl
54 EAST AND HAVING A
RADIUS OF 20.00 FEC AND A CENIRAL ANGLE OF 6VZ8f47;

THENCE NORTHWESTERLY ALONG THE ARC or SAID CURVE. A DISTANCE OF 21.52 FEET TO A POINT
CROSS DRIVE ALSO THE NORTH UNE OF AREA NQ.5 OF SAID PLAT: ON THE SOUTH LINE OF DAL

ThENCE NORTH 66365Y WEST ALONG SAID UNE, A DISTANCE OF 237.98 FEET TO THE BEGINNING
OF A TANGENT CURVE
(CONCAVE SOUTHEASTERlY) HAVING A RADIUS OF 20.00 FEET AND A CENTRAL ANGLE OF
lOW18’02;
THENCE SOURMESIERLY ALONG THE ARC OF SAID CURVE. A DISTANCE CF 37.80 FEET
TO THE SOUTH UNE OF PARK DRIVE
ALSO THE NORTH UNE OF SAID AREA WaS. AND THE BEGINNING OF A REVERSE CURVE (CONCAVE
NORTHERLY) HAVING A RAflUIS
- OF 796.00 FEET AND A CENTRAL ANGLE OF 4C21’12;

THENCE SOUThERLY ALONG THE ARC OF SAID CURVE AND SAID UNE, A DISTANCE OF 560.62
FEEl;
THENCE SOUTH 45’26’17 WEST ALONG SAID LINE. A DISTANCE OF 560.59 TO THE BEGINNING OF
A COMPOUND CURVE (CONCAVE
EASTERLY) HAVING A RADIUS OF 20.00 FEET AND A CENTRAL ANGI.E OF 5r0542s;

THENCE SOUTHERLY ALONG WE ARC OF SAID CURVE A DISTANCE OF 20.28 FEET TO ThE EAST
LINE OF BAt BAY DRIVE AND
THE WEST UNE OF AREA No.5. AND TO THE BEGINNING or A REVERSE CURVE (CONCAVE WESTERLY)
HAVING A RADIUS OF
1102.87 FEET AND A CENTRAL ANGLE OF O&52OV’;

THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE AND SAID LINE, A DISTANCE
OF 13116 FEET TO THE POINT OF BEGINNING.
SAID LANDS SH1JATE IN THE VILLAGE OF BAL HARBOUR. MIAMI—DADE COUIIN, FLORVA CONTAININ
OR LESS. G 52,729 SQUARE FEET. MORE

THIS IS NOT A SURVEY

PREPARED FOR:
t

VILLAGE OF BAL HARBOUR

CIO1.W1G1 lAM 05/12/17 K/A
REVISION DWN DATE rB/PG CKD
cRAl. ASSOCIATES SAL HARBOUR SHOPS
GLADES ROAD
BOCA RATON. FLORIDA 33434 VILLAGE OF BAL HARBOUR, DADE COUNW, ft
(561)791—9280 PROJECT NUMBER: 11—1146—0691
CERT. NO. 1.80003110 RLE NU IO-I14-9i-5HaPS-EAS94.ewg I nr an
 _/___U

___%. I / I
/ SYMBOL LEGEND
4 SYM. DESCRIPTION
on. CFflCW. REtORD eoox

/ U.O.CPA WAiSI-OALE COUNTY puouc I1ECOROS

PS,

/
PAGE
BLOCK I P.03. Pair OF RPflSW
SCAQ

/
P.0C. POW OF COUUE71CDSDC
3 / L L9IGTN

RESIDENTIAL SECTION OF
/
/j/ RESIDENTIAL SECTION OF
BAL HARBOUR
A

BAL HARBOUR
// h
,-,
DOJA
(PB 44, PG 96, MDCPR)
(PB 44, PG 98, MOCPR)
-‘S
-S.’ / / 2 3
2
L— I
R=349(
=OO.19 N4S26’ lit
4

I
/
582.84’
C.
L=1 39.98’

1—20.28’ 545’26’17”W 560.59’

R—20.0D’
A5W05’42”
SO UNE PARK DR.1
(NORTH UNE AREA No.5) I
C
L13116’ b.2
0
R1 102.67’
AREA No. 5
/ ‘—EAST liNt SAL BAY OR.
LaX
U)
(WEST liNE AREA No.5) BUSINESS SECTION OP 0
La C)
S64’12’36’v\ SAL HARBOUR La
• poa (PB 60, PG 39, MDCPR)
UI
NW CORNER AREA No.3
(RADIAL) S.
•

/
I,
AREANo.3 N
/
SURVEYOR’S NOTES:
I
1. REPRODUC11ONS or mis DOCUUENr ARE NOT VAliD WiTHOUT ThE SiGNATURE
FLORIDA PROFESSIONAL SURVEYOR AND MAPPER. AND ORIGINAL RMSED SEAL OF A LICENSED

2. BEARINGS SHOWN HEREON ARE RElATiVE TO THE SOUTH RIGHT OF WAY

OP SAL HARBOUR, ACCORDING TO THE PLAT THEREOF RECORDED UNE or BAL CROSS DRIVE. BUSINESS SECTION
I IN PLAT BOOK 60, PAGE 39, PUBliC RECORDS OF
MIAMI—DADE COUNTY, FLORIDA. (SHOWN TO BEAR S 6W36’53
E)
I.
3. NO SEARCH OF THE PUBUC RECORDS WAS PERFORMED BY HIS
DCISr EASEMENTS, RESTRICTIONS, RIORTS OF WAY, ETC.. WHICH FIRM IN THE MAKING OF 11115 SURVEY. HERE MAY
APPEAR IN
UNDOCUMENTED AND/OR UNRECORDED AGREEMENTS, WHICH AFFECT 11115 THE PUBUC RECORDS. OR THAT ARE BASED ON
SURVEY.
THIS IS NOT A SURVEY
WR%’ETTIRS CO1TIflCATE
I MfZt CSIWY 1WC 1545 STD4 jim tpitti S jO)W.Z TOM
BEt OF IJY KNUM jic fl jiC UE TIC WIUM ItD*4tIL
WNnk PS SET FOftTN ST TIC ROA xiim OF oFauL fltflO AilS
WPPOS Ii Q4APTCI ILlS 5i—37, flt PaflTMP#
472.021, FtSIO& SrA1ua t PMT TO IlO4
FOR TIE nAIL,
AbBOTT 0. KEXNDI S<EtOctSc:l UU 03/12)17 Fl/A
PROFTOUAL SURVEYOR MiD WPPER 04146
REVIS(ON OWN DATE PB/PG CKO
CRAIG A. SMITH & ASSOCIATES GAL HARBOUR SHOPS
7177 GLADES ROAD. SUITE 410 EMENT DESCRIPTION
SaGA RATON. FLORIDA 33434 VILLAGE OF BAL HARBOUR, DADE COUNTY, FL
(561)791—9280 PROJECT NUMBER:
CERT. NO. L80003110 17—1146—0691
HI! R41E lO—1146—SH-SHOPS—EASBLdwg
I ow

—____
______
_
 7- —----, /
-
SYMBOL LEGEND

I/
/\ 16
SYN. DESCRIFflON

\
ORB. OFFCAL CORD BOC1C
I1.bLP.L ULAMI—OADC COUNTY PUBLIC RECORDS
P.O. PACE
18 17 P.0.0. POINT OF BECU*INC
I Sc
P.0.C. PO’JIT OF £0141EW0S041
I
/ BLOCK 4 L LUG1N

I A
ft RADIUS
DELTA

SECTION OF
I 5
/ (PB 44. PG 98. MDCPR)
4

2 3 L=609.86’

I:
A 0

560.62’
‘796.00’
U,’
SOUTH UNE PARK DR. —4C21’12
45’26’17W (NORTH UNE AREA No.5)
560.59’ AREA No. 5 I
.7
BUSINESS SECTiON OF /
SAL HARBOUR ‘I
(PB 60, PG 39, MDCPR) //
SURVEYOR’S NOTES:
I. 1. REPRODUCTIONS OF THIS DOCUMENT ARE NOT VALID WITHOUT THE SIGNATURE AND ORIGINAL RAJSED
FLORIDA PROFESSIONAL SURVEYOR AND P.t4PPER. SEAL OF A UCENSED

2. BEARINGS SHOWN HEREON ARE RELATNE TO THE SOUTH RIGHT OF WAY UNE OF CROSS OffiVE, BUSINESS SECTiON
OF ON.. HARBOUR, ACCORDING TO THE PIAT THEREOF RECORDED IN PL&T BOOK 60. BAt
PAGE 39, PUBLIC RECORDS OF
MIAMI—DADE COUNTY, FLORIDA. (SHOWN TO BEAR S 6&36’53 E)
3. NO SEARCH OF THE PUBUC RECORDS WAS PERFORMED BY THIS FiRM IN THE MAKING OF THIS
EXIST EASEMENTS, RESTRIC11ONS. RIGRIS OF WAY, ETC., WHICH APPEAR IN THE PUBLIC RECORDS, SURVEY. THERE MAY
UNDOCUMENTED AND/OR UNRECORDED AGREEMENTS. WHICH AFFECT THIS SURVEY. OR THAT ARE BASED ON

This is NOT A SURVEY

CRAIG A. SMItH & ASSOCIATES SAL HARBOUR SHOPS

flfl GLADES ROAD, SUITE 410 EASEMENT DESCRIPTION
BOCA RATON, FLORIDA 33434 VILlAGE OF SAL HARBOUR, DADE COUNTY, ft
(561)791—9280 PROJECt NUMBER: 17—1146—0691
CERT. NO. LB0003I1O E1—1141—11—SHPS—FASQI4Wg I sci 4a

rtfltS.LaSaS
 _____
______
______
______
______
______
______
____

RESIDENTIAL SECTiON OF SYMBOL LEGEND

SAL HARBOUR
(PB 44. PG 98. MOCPR) SYM. DESCRIPTION
0.9.9. CIT1WI. RECOVD SOCK
2 UD.C.PJ. LltAia-DADC COUNTY PUBLiC REt0R
“N
P.C. P
P.0* PO*ff OF BEGMINC

P.C. PONT or CoUu0cw04T

L LEYICTN
L=37.8O’ BLOCK 1 P
20 .00’ a DalA
A=1Ot18’02

/‘2N,
Thm,
/
/ A’

I w
r c58’OC/
‘.1

I In
In

20.00’
61’38’47

I - LINE COWNS AVENUE

1

I I /
N
SURVEYOR’S NOTES:
I. REPRODUCTIONS OF THIS DOCUMENT ARE NOT VAIJD WITHOUT
THE SIGNATURE MD ORIGINAL RAISED SEAL OF A UCENSED
RORIDA PROFESSIONAL SURVEYOR AND MAPPER.
1 BEARINGS SHOWN HEREON ARE RElATIVE TO THE SOUTH RIGHT
OF BAt HARBOUR. ACCORDING TO THE PUT THEREOF RECORDED INOF WAY UNE OF SAL CROSS DRIVE. BUSINESS SECTiON
FIAT BOOK 60, PAGE 39, PUBUC RECORDS OF
MLANI—DADE COUNTY, FLORIDA. (SHOWN TO BEAR S 6536’53
E)
3. NO SEARCH OF THE PUBUC RECORDS WAS PERFORMED BY THIS FiRM
D<IST EASEMENTS, RESTRIC11ONS, RIGHTS OF WAY, ETC., WHICH IN THE MMING OF ThIS SURVEr. ThERE MAY
APPEAR IN THE PUBUC RECORDS, OR THAT ARE BASED
UNDOCUMENTED AND/OR UNRECORDED AGREEMENTS, WHICH AFFECT ON
THIS SURVEY.
THIS IS NOT A SURVEY

9C0t&.DC9WIO4 UN 05/12/17 N/A PK

REVISION OWN DATE Fe/PG CXD
CRAIG A. SMITH & ASSOCIATES SAL HARBOUR SHOPS
7771 GLADES ROAD, SUflt 410 EASEMENT DESCRIPTION
Ct BOCA R4TON, FLORIDA 33434
(561)791—9280
CERT. NO. L8000Z1 10
VILlAGE OF SAL HARBOUR, DADE COUNTY, ft
PROJECT NUMBER: 17—1145—0691
FILE tWJt IO—1146-SH—SNOPS—EASQLdwg
I w ss

I
 Exhibit B
Sketch and Legal Description of Bal Cross Drive North Parcel
(see following pages)

0021.109/ Bal Harbour Village/Utility Easement vs

 LOCA11ON k(AP
t au.

DESCRIPTION:

THAT PORTION OF SAL CROSS DRIVE ADJOINING LOT 1, BLOCK 1. AS SHOWN ON WE RESIDENTIAL 5ECTION OF 9*1. HARBOUR,
ACCORDING TO ThE PLAT TNEREOE RECORDED IN P1.AT BOOK 44, PAGE 98 OF THE PUBLIC RECORDS OF UIMA1—DADE COUNTY,
FLORIDA. MORE PARTICULARLY DESCRIOED AS FOLLOW&

BEGIN AT ThE SOUTHWEST CORNER OF WI 1. BLOCK 7 OF SAID RESIDENTIAL SECTION OF 8*1. HARBOUR;

THENCE SOUTH 6ff35’53 EAST ALONG ThE SOUTH LINE OF SAID LOT I AND ALSO THE NORTH LINE OF SAL CROSS DRIVE,
A
DISTANCE OF 210.22 FEET TO THE POINT ON THE ARC OF A NON—TANGENT CURVE, (CONCAVE NORHWESIThLV) FROM WHOSE
RADIUS POINT BEARS SOUTH 43’3S’45” EAST AND HAVING A RADIUS OF 40.00 FEET AND A CENTRAL ANGLE OF 5r19’ZO;

THENCE NORThEASTERLY ALONG THE ARC OF SAID CURVE A DISTANCE OF 35.83 FEET TO A POINT ON THE WEST LINE OF
COU1S AVENUE (SR A—I—A);

ThENCE SOUTH O458’08 EAST ALONG SAID WEST LR’IE, A DISTANCE OF 90.46 FEET’;

ThENCE NORTH 6636’53 WEST, A DISTANCE OF 251.55 FEET;

ThENCE HaRE-I 2S23’07” EAST, A DISTANCE OF 45.00 FEET TO WE POINT OF BEGINNING,

SAID LANDS SrWATE IN WE VILLAGE OF 3M, HARBOUR, MIAMI—DADE COUNTY, FLORIDA CONTAIMNO 10,915 SQUARE FEET, MORE
OR LESS.
E
V.

THIS IS NOT A SURVEY

PREPARED FOR:

VILLAGE OF BAL HARBOUR

sIcoc..Maana. SM [15/12/17 H/A ROK

REVISION OWN DATE FB/PG 0<0

CRAIG A. SMfl}I & ASSOCIATES FAiRFiELD MANOR CO—OP
7777 GLADES ROAD, SUITE 410 EASEMENT DESCRIPEON
BOCA RATON. FLORIDA 33434 VILLAGE OF GAL HARBOUR, DADE COUNTY, ft
(561)791 —9280 PROJECT NUUBER 17—1146—0691
CERT. NO. LB00031 10 EU RMAE IC—I144-BH—FAIQD—EASDJ.dwg I a or:
 --

N
RESIDEtmAL SECTiON OF SYMBOL LEGEND
SAL HARBOUR
(P0 44, PG 98, UDCPR) SYM. DESCRIP11ON
ofl 0flc1L RECORD BOOK
2 UfltP.R. uLu-tJac COLW4TY PtX
P.C. PAGE
P.O.B. PNT OF BEGU31DfG
‘a LOT I
CORNER
1. BLOCK 7
/ P.0.0. Pam OF C0U4S10L01T
BLOCK 7 t

/ R flIUS

OD.TA
—NORTH UNE SAL CROSS DR.
(SOUTH UNE LOT I. BLOCK 7) ‘N
S4Y38’46”E/
/
/ N
1. (lJZ

err ,1’

%%_
WEST LINE COWNS AVE.
N
N
/ (SR A—i—A)
N
/
SURVEYOR’S NOTES:
0’
N
I. REPRODUCTIONS OF This DOCUILDU ARE NOT VAUD WITHOUT THE SIGNAThRE
FLORIDA PROFESSIONAL SURVEYOR AND NAPPER. AND ORIGINAL RAJSED SEAL OF A LICENSED

2. BEARINGS SHOWN HEREON ARE RELATiVE TO ThE NORTH RIGHT OF WAY ONE
OF GAL HARBOUR. ACCORDINS TO ThE PLAT THEREOF RECORDED IN PLAT BOOK OF GAL CROSS ORWE, RESIDENTIAL SECRON
44. PAGE 98. PUBLIC RECORDS OF
MIAMI—DADE COUNW, FLORIDA. (SHOWN It BEAR S 66’35’53 E)

3. NO SEARCH OF THE PUBUG RECORDS WAS PERFORMED BY THIS FIRM

EXIST EASEMENTS, RESTRICTIONS, RICRTS OF WAY, ETC.. WHICH APPEAR IN ThE MAXING OF This SURVEY. ThERE MAY
IN THE PUBLIC RECORDS, OR THAT ARE BASED ON
UNDOCUMENTED AND/OR UNRECORDED AEaEN1s, WIICH AFFECT ThIS
SURVEY.
THIS IS NOT A SURVEt’

CRAIG A. SMITH & ASSOCIATES FAIRFiELD MANOR CO—OP

7777 GLADES ROAD. SUITE 410 EASEMENT DESCRIPTION
BOCA RATON. FLORIDA 33434 VILLAGE OF BAd. HARBOUR, DADE CCUPIW FL
(561)791—9280 PROJECT NUMBER:
CERT. NO. 1.20003110 17—1146—0691
FILE NnE 10-i 148-BH-FMRflUD-EASBI4fl I mart #1
Composite Exhibit B
 RESOLUTION NO. 2024-____

A RESOLUTION OF THE VILLAGE COUNCIL OF BAL

HARBOUR VILLAGE, FLORIDA; AUTHORIZING THE VILLAGE
MANAGER TO EXPEND RESOURCES TO TAKE ALL
NECESSARY STEPS TO PROTECT THE VILLAGE IN
RESPONSE TO THE BAL HARBOUR SHOPS’ 2024
SUBMISSION TO FURTHER EXPAND ITS PROJECT;
PROVIDING FOR IMPLEMENTATION; PROVIDING FOR AN
EFFECTIVE DATE.

WHEREAS, on January 9, 2024, Bal Harbour Shops submitted paperwork seeking

to obtain Village approval of a further expansion of its project (the “Submission”); and
WHEREAS, the Village Manager advises that Village resources will need to be
expended to take all steps necessary and deploy all needed expertise in response to the
Submission, and that these resources are likely to exceed his $20,000 spending authority;
and
WHEREAS, the Village Council finds that it is in the best interest and welfare of the
residents of the Village to authorize the Village Manager to expend what is necessary to
assure that the Village’s quality of life is protected.

NOW, THEREFORE, BE IT RESOLVED BY THE VILLAGE COUNCIL OF BAL

HARBOUR VILLAGE, FLORIDA, AS FOLLOWS:

Section 1. Recitals Adopted. That the above-stated recitals are hereby adopted
and confirmed.
Section 2. Authorization of Expenditures. That the Village Council hereby
authorizes the Village Manager to expend funds and retain expert consultants as needed
to ensure that the Village’s interests are fully protected in response to the Bal Harbour
Shops’ 2024 proposal to further expand its project.
Section 3. Implementation. That the Village Manager is hereby authorized to
take all actions necessary to execute and implement this Resolution.

Bal Harbour Village Resolution 2024-____ VER: 7 1

 Section 4. Effective Date. That this Resolution shall take effect immediately upon
the adoption hereof.

PASSED AND ADOPTED this 16th day of January, 2024.

____________________________
Mayor Jeffrey P. Freimark
ATTEST:

____________________________________________
Dwight S. Danie, Village Clerk

APPROVED AS TO FORM AND LEGAL SUFFICIENCY:

________________________________
Village Attorney
Weiss Serota Helfman Cole & Bierman P.L.

Bal Harbour Village Resolution 2024-____ VER: 7 2

 COUNCIL MEMORANDUM

TO: Honorable Mayor and Village Council

FROM: Jorge M. Gonzalez, Village Manager

DATE: January 16, 2024

SUBJECT: A RESOLUTION OF THE VILLAGE COUNCIL OF BAL HARBOUR VILLAGE,

FLORIDA; AUTHORIZING THE VILLAGE MANAGER TO EXPEND
RESOURCES TO TAKE ALL NECESSARY STEPS TO PROTECT THE VILLAGE
IN RESPONSE TO THE BAL HARBOUR SHOPS’ 2024 SUBMISSION TO
FURTHER EXPAND ITS PROJECT; PROVIDING FOR IMPLEMENTATION;
PROVIDING FOR AN EFFECTIVE DATE.

ADMINISTRATIVE RECOMMENDATION
I am recommending approval of this Resolution.

BACKGROUND
On January 9, 2024, the Bal Harbour Shops submitted paperwork seeking to
obtain Village approval for an expansion that would include 528 residential units. Their
proposal said that, under the Florida Live Local Act, certain local zoning regulations
could be bypassed in exchange for committing to build 40% of the units as workforce
housing, the remainder being luxury housing. Their proposal also included a 7 -room
upscale luxury hotel. They said that the proposed new towers would rise to
approximately 275 feet, similar to the height of the St. Regis Bal Harbour Resort located
directly across the street.

It would be an understatement to say that this project, as proposed, would have

a profound impact on the Village of Bal Harbour and its residents, in terms of
emergency management during natural and manmade disasters, beach and shoreline
management, additional traffic congestion, management of impacts from ongoing
construction noise and, impact on abutting neighborhoods and buildings, and the
need for additional Village Staff resources.

The Village Manager advises that Village resources in excess of $20,000 will need to be
expended for planning, traffic, engineering, legal, and other consultant services to
ensure the Village takes all necessary steps to protect the quality of life, health, safety, and
welfare of its residents.

Since this authorization is necessary to ensure that essential services and

projects continue during this uncertain time, it is recommended that the Village Council
adopt this Resolution.

JANUARY 16, 2024 VER: 7 AGENDA ITEM R7D

January 16, 2024 Council Meeting
RE: Expenses Related to the Bal Harbour Shops 2024 Proposal
Page 2 of 2

THE BAL HARBOUR EXPERIENCE

The proposed expansion will touch every aspect of The Bal Harbour Experience in the
Village’s ability to nurture and maintain: a beautiful environment; the safety and security of
our residents and neighborhood; our public facilities and infrastructure, our role as a luxury
destination; our standing as a unique and elegant community; and our ability to remain a
resilient and sustainable community.

CONCLUSION
It is in the best interest and welfare of the residents of the Village to authorize the Village
Manager to take whatever steps are necessary to ensure that the Village’s quality of life is
protected, and therefore, it is recommended that the Village Council adopt this Resolution.