Loading...
HomeMy WebLinkAboutReso 2004-681 1 11111I11111 111I111111 11111111111111I 1111 l\ RESOLUTION NO. 2004-ldQ 1 CFN 2004R0620:180 OR Bk 22508 P9S 0755 - 774; (20P9~ RECORDED 07/22/2004 19:46:43 HARVEY RUVIN, CLERK OF COURT MIAMI-DADE COUNTY, FLORIDA A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF SUNNY ISLES BEACH, FLORIDA, ACCEPTING THE CONVEYANCE OF APPROXIMATELY 3.46 ACRES OF REAL PROPERTY (THE "CASINO PROPERTY"), LEGALLY DESCRIBED ON "ATTACHMENT "A," ATTACHED AND INCORPORA TED, AND WITH A STREET ADDRESS OF 17200 COLLINS AVENUE AND OWNED BY 17200 COLLINS A VENUE, L TD ("APPLICANT"), IN ACCORDANCE WITH AND SUBJECT TO ALL OF THE APPLICABLE PROVISIONS OF THE CITY CODE AND SECTION 265-23 OF THE CITY'S LAND DEVELOPMENT REGULATIONS ("LDR's") RELATING TO TRANSFERS OF DEVELOPMENT RIGHTS ("TDR's"), INCLUDING BUT NOT LIMITED TO SECTIONS 265-23.3 (c) AND (e) AND SECTION 265-23.4(c);FURTHER IMPOSING CERTAIN CONDITIONS PRIOR TO THE CITY'S ACCEPTANCE OF THE CASINO PROPERTY AND SEVERENCE OF THE TDR'S PRIOR TO THE WITHDRAWAL OF THE TDR'S FROM THE TDR BANK, APPLICANT SHALL PROVIDE SECURITY FOR THE FUNDING OF PARK AND PUBLIC IMPROVEMENTS; FURTHER AUTHORIZING THE MAYOR TO EXECUTE SUCH OTHER DOCUMENTS AND AGREEMENTS AS MAY BE DETERMINED BY THE CITY ATTORNEY TO BE NECESSARY TO CONSUMMATE THE CONVEYANCE OF THE CASINO PROPERTY TO THE CITY, SEVER DEVELOPMENT RIGHTS FROM THE CASINO PROPERTY AND DEPOSIT SAME TO THE CREDIT OF THE APPLICANT IN THE TDR BANK, SUBSEQUENT WITHDRAWAL OF SAID DEVELOPMENT RIGHTS AT THE REQUEST OF AND FOR THE BENEFIT OF THE APPLICANT DURING THE FIVE YEAR PERIOD COMMENCING WITH THE PASSAGE OF THIS RESOLUTION, AND RECORDATION OF DOCUMENTATION; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, Section 265-23 of the City's Land Development Regulations ("LDR's") (the "TDR Ordinance") provides for the transfer of development rights from a sender site to a receiver site, in accordance with the provisions set forth therein; and Casino - Conveyance Of 17200 Collins 1V WHEREAS, the TDR Ordinance provides that any property in the City, upon the approval of the City Commission, in its sole discretion, after a public hearing, may be eligible as a sending site, subject to the terms, conditions and limitations of this Ordinance; and WHEREAS, the TDR Ordinance further provides that certain properties of over three (3) acres in size may be dedicated to and accepted by the City with a grant of TDR's to the applicant of 80 dwelling units per acre and a 3.75 floor area ratio (F.A.R.); and WHEREAS, 17200 Collins, L TD ("Applicant"), pursuant to the provisions of the TDR Ordinance relating to the transfer of such larger properties to the City, has submitted a complete application to the City requesting approval of conveyance of the property located at 17200 Collins A venue, legally described as set forth on "Attachment A," also known as the "Casino Property" and the transfer of the development rights from the Casino Property to the TDR Bank; and WHEREAS, staff has reviewed the Application, prepared written findings and recommendations, and advertised the matter for a public hearing in accordance with the notice and hearing requirements required by the LDR's for zoning applications; and WHEREAS, the City Commission, after a public hearing and consideration of the recommendations of staff, has determined, subject to all of the applicable requirements and conditions of the TDR Ordinance, that the proposed sending site is acceptable for use by the City in accordance with the expressed intent of the TDR Ordinance, subject to certain additional conditions as set forth herein; and WHEREAS, the applicant acknowledges that upon expiration of 5 years from the date of the City Commission action approving this transfer, its rights to utilize and/or convey any of the transferred development rights granted hereunder shall expire and become null and void. NOW THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF SUNNY ISLES BEACH, FLORIDA, AS FOLLOWS: Section 1. Acceptance of Conveyance of Casino Site. That the City accepts the conveyance of approximately 3.469 acres (:i: 151,130 square feet) of real property (the Casino - Conveyance Of 17200 Collins 2 Casino Property"), legally described in "Attachment A", attached and incorporated herein, also known as the Casino Property, and the transfer of the development rights from the Casino Property to the Applicants account in the TDR Bank in the amount of 3.75 F.A.R. (566,737 square feet) and 80 dwelling units per acre (277 dwelling units), in accordance with and subject to all applicable provisions of the City Code and Section 265-23 of the City's LDR's related to the Transfer of Development Rights, to be used in accordance with the expressed intent of the TDR Ordinance, including, but not limited to the following provisions: Section 265-23.3, entitled "Establishment of Sending and Receiving Sites; TDR's Transferred; Fees," (c )"TDR's Transferred from Privately-Owned Sender Sites," which sets forth provisions for the Application Process, Public Hearing, Conveyance of Privately Owned Sender Sites to City, Development Limitations on Privately Owned Sender Sites and Limitation on use of TDR's from Approved Sender Sites. (e) "Fees," which provides that applicant shall be responsible for all applicable application fees and consultant fees related to the application reVIew. Section 265-23.4, entitled "Calculations," (c) "Transferable Development Rights from Privately Owned Sender Sites," which sets forth the formula for calculating floor area ratio and density on the site based on the existing zoning, and provides that, in cases where a privately owned site of greater than three acres of frontage along Collins Avenue, in the Town Center, is offered to the City as a Sender Site, the City may accept said sender site and may provide to the owner the maximum density of 80 units per acre and a maximum floor area ratio of 3.75 provided the owner of the sender site shall either commit to provide public improvements in accordance with a design approved by the City Commission or shall fund said improvements as a condition of and no later than the actual transfer of the TDR's, and that, notwithstanding anything to the contrary, the property owner tendering the site shall have up to five (5) years from the date of the City Commission action approving this transfer to utilize such development rights in accordance with Section 3 c(5) of the TDR Ordinance. Section 2. Conditions for said Acceptance. Acceptance of said conveyance is further conditioned upon the following: (1) Applicant shall indemnify, protect and hold the City Casino - Conveyance Of 17200 Collins 3 harmless from any actions or claims filed against the City as a result or arising from the approval of the Casino Property or the transfer of the development rights to the TDR Bank, including, without limitation, providing an executed environmental indemnity and hold harmless agreement in a form and substance reasonably acceptable to the City Attorney and substantially in the form attached hereto as Attachment "B"; (2) Applicant shall deliver to the City good, marketable and insurable title, free and clear of all liens and encumbrances, and an acceptable title policy including, without limitation, deleting from Schedule B, Section 1 of said title policy items 3(a) and 5 through 11 of the Commitment For Title Insurance #50117409ICA issued by Commonwealth Land Title Insurance Company, unless any of the items are waived in writing by the City Attorney and the City Manager; (3); The General Warranty Deed conveying the Casino Property to the City shall be recorded in the Public Records of Miami-Dade County, Florida, prior to the transfer of development rights from the Casino Property to the TDR Bank which transfer shall occur immediately thereafter; and subject to compliance with the following closing procedures: (a) closing shall occur on or before 30 days from June 3, 2004, unless otherwise extended by the City Attorney; (b) prior to closing, Applicant shall submit an up to date survey of the Casino Property certified to the City dated subsequent to June 3, 2004, which shall be further updated, if necessary so that the City shall have a certified survey dated no later than 30 days prior to the recording of the Deed; encroachments, or easements on the Casino Property disclosed by the survey shall constitute title defects unless waived by the City Attorney; (c) Applicant shall provide: certification from City that no outstanding code violations or open permits exist in connection with the Casino Property (other than for demolition of the existing structures on the Casino Property); a Certificate of Resolutions and Agreements from Miami-Dade County; applicable corporate documents as required by, and in a form satisfactory to, the City Attorney; a statement as to any unrecorded obligations or easements; an executed No Lien Affidavit and a Non-Foreign Affidavit; and any other documents reasonably necessary or advisable to comply with existing statutory and code provisions; evidence that taxes, assessments, water and sewer charges, waste fee and fire protection charges, if applicable, have been paid in full to the date of the closing, or provision for sufficient escrow to assure payment thereof when due; (d) Applicant shall prepare and provide all closing documents, in a form acceptable to the City Attorney; and (4) After closing, Applicant shall deliver to City the Title Insurance Policy insuring, at minimum, that amount of the value reflected by the Miami-Dade County Property Appraiser's Office for tax purposes; (5) Execution by Applicant and City of any other documents as deemed reasonably appropriate by the City Attorney or the Applicant in order to effectuate the transfer of the Casino Property to the City and for the City to evidence the transfer of the above-noted TDR's to the Applicant's account in the TDR Bank. Any disagreement between the parties regarding the reasonableness of the request for such documents shall be determined by the City Casino - Conveyance Of 17200 Collins 4 Commission; (6) Within ninety (90) days of the date hereof, Applicant shall demolish and remove from the property the existing structures thereon and parking paving, (7) Within the earlier of ninety (90) days from the date hereof or prior to the withdrawal of any portion of the TDR's transferred hereunder from the TDR Bank, Applicant shall post reasonable security, by bond/s or escrow/s reasonably acceptable to the City Manager and Attorney in the amount of $800,000.00 to secure the cost of construction of the park and public improvements to be located at the Casino Property in the event the City should have to complete construction thereof, and a $5,000 bond/s or escrow/s-reasonably acceptable to the City Manager and Attorney representing the potential cost of environmental remediation or monitoring, as may be required by affected governmental agencies. It is understood and agreed that irrespective of this $5,000 bond, Applicant shall perform environmental remediation, if any, at its own expense, or provide evidence that no further action is required by either DERM or the State of Florida in order to secure environmental permitting to construct the park. In the event environmental permitting is secured and the park can be constructed but remediation is still required said bond and indemnity agreement shall be used to complete resolution of any environmental issue. Applicant shall render final written report to City prior to delivery of completed park and public improvements to City. The security shall be in the form attached hereto as Attachment "C".. (8) City shall submit a plan for the park substantially in accordance with the prior preliminary plan attached hereto as Attachment D, within sixty (60) days of the date of this Resolution or as soon as possible thereafter for City Commission approval and cost estimates shall be done by the Applicant after such plans are reviewed and specifications are completed. Applicant shall then obtain all required permits and construct and deliver said park and public improvements to the City prior to the issuance of any certificate of occupancy for the first receiving site to receive any portion of TDRs transferred hereunder. Upon completion of the improvements and/or the environmental remediation, if any, any security provided by the Applicant for such improvements or remediation, as applicable, shall be returned to the Applicant, or its designee or the bond or escrow shall be released to the Applicant. Section 3. Mayor Authorized to Execute. The Mayor is hereby authorized to execute such other documents and agreements as may be determined by the City Attorney to be necessary to consummate the conveyance ofthe Casino Property to the City, sever the development rights from the Casino Property and deposit them to the credit of the Applicant in the City TDR Bank and subsequent withdrawal( s) of those development rights from the TDR Bank at the request of and for the benefit of the Applicant and during the five year term commencing with the date of the passage of this Resolution and the recordation of documentation evidencing the transfer, all in accordance with the provisions of the TDR Ordinance, and in a form acceptable to the City Attorney; Casino - Conveyance Of 17200 Collins 5 and further, the Mayor is authorized to take whatever action is required to effectuate the intent of this approval in accordance with the provisions of the TDR Ordinance. Section 4. Effective Date. This Resolution is effective upon adoption. PASSED AND ADOPTED this ,,:=)t4t day of ~rvv..- 2004. '? ,~'; i- 7, ,-";;. , ~', orman S. Edelcup, Mayor. 4') '. ~ , ~"Jan~iA" irtes: ty Clerk ~~' v"'), "'/ , f~"."" ..1"..., ~ ~f?, . ,\} , ". f,'~ ~~;~,,',-. AAItR4)VJt:]j AS'TO FORM AND L UFFICIENCY: . Dannheisser, City Attorney MOvedbY:~Lo m(tU()rGOCC~VL; ~.~ Seconded by: C.f)h\~Y\l <$10 tU q'/~~ L~:5~J!KiS" Vote: 5.-0 Mayor Edelcup Vice Mayor Goodman Commissioner Brezin Commissioner Iglesias Commissioner Thaler V(Y es) V (Yes) v (Yes) V (Yes) V (Yes) _(No) _(No) _(No) _(No) _(No) Casino - Conveyance Of 17200 Collins 6 US/^/.U Pfl-<)f"e">Lf'r - f?-?.w (ot-uAi( A:U€? LEGAL DESCRIPTION: Parcel 1 The East 400 feet of that port of the North 100 feet of Lot 2, TATUM'S SUBDIVISION, lying West of the Westerly Right-of-way line of the State Rood A.1.A.. according to the plot thereof, as recorded in Plat Book 10, Page 64 of the Public Records of Miami-Dade County, Florida. Tax Folio #30 221 004 0070 0 Parcel 2 The East 600 feet of the South 100 feet of Tract 3, TATUM'S OCEAN PARK SUBDIVISION. according to the plot thereof, os recorded in Plot Book 10. Page 64, of the Public Records of Miami-Dade County, Florida, lying West of the Westerly right of way line of the State Road A.l.A., together with all littoral and riparian rights appurtenant thereto. Tax Folio #30 2211 004 0200 3 Parcel 3 Lot 29 of SOUTH SHORE ESTATES. according to the plot thereof. os recorded in Plot Book 52. Page 69. of the Public Records of Miami-Dade County, Florida. Tax Folio #30 2211 001 0290 0 Parcel 4 Lots 30 and 31 of SOUTH SHORE ESTATES, according to the plot thereof, os recorded in Plot Book 52. Page 69, of the Public Records of Miami-Dade County, Florida. Tax Folio #(Lot 30): 30 2211 001 0300 7 Tax Folio H(Lot 31): 30 2211 001 0310 6 o , GRAPHIC SCALE 20 40 ~ I ( IN n:ET ) 1 inch - oW It. 80 I FOUND 1/2- PIPE IE L83853 (4/3/02) x 580"00' ~ COlCIlf:lE SfMIAU. ~~ ~ ~ ~ ~ ~ , 8 - p-2J PARCE ENVIRONMENTAL INDEMNITY THIS ENVIRONMENTAL INDEMNITY (this "Indemnity"), dated as of ,2004, is made by , a Florida corporation, and , a Florida corporation,("Owner"), to and for the benefit of SUNNY ISLES BEACH, FLORIDA, a Florida municipal corporation ("City"), and City's successors, assigns. RECITALS A. Owner is the owner of the real property described on Exhibit A attached hereto (the "Property"), together with the improvements now or hereafter located thereon. B. City has agreed to allow the Owner to transfer the Property to the City for park purposes and park improvements in return for the City's approval of the transfer of certain development rights ("TOR's"), under and pursuant to Section 265-23 of the City Code and Resolution No. adopted by the City Commission on the _ day of , 2004. C. One of the conditions of Resolution No. is for the Owner to provide to the City an environmental indemnity and hold harmless agreement and this agreement is in fulfillment of said condition. As a result of the future transfer of ownership of the Property to the City, City may, thereafter, incur or suffer certain liabilities, costs, and expenses in connection with the Project relating to Hazardous Substances (as hereinafter defined). City has, therefore, made it a condition of approval of the transfer that this Indemnity be executed and delivered by Owner in order to protect the City from any such liabilities, costs, and expenses and all other Post- Transfer Environmental Losses (as hereinafter defined). D. Owner has had prepared technical reports investigating the present status of potential contamination of the Property prepared by EPAC Environmental Services, Inc. and entitled "Limited Site Assessment", and dated February 22,2002, "Phase One Environmental Assessment" dated March 19, 2004, "Phase II Subsurface Assessment" dated April 7, 2004, "Contamination Assessment Report dated October 4, 1996 and "Contamination Report/Conceptual Remediation Action Plan dated April 3, 1997 (the "Environmental Reports"), during the course of its investigation of the Property and Owner has provided City with copies of the Environmental Reports. NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Owner agrees as follows: 28520513.1 030902 0050P 95173993 Exhibit"B" 1. Definitions. As used in this Indemnity, the following initially-capitalized terms shall have the following meanings (and all initially-capitalized terms not otherwise defined herein shall have the meaning commonly accepted by dictionary definition): "Attorneys' Fees and Consultants' Fees," "Attorneys' and Consultants' Fees and Costs" are defined in Section 8. "CERCLA" means the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 999601 et seq.), as heretofore or hereafter amended from time to time. "Environmental Laws" means any and all present federal, state and local laws, ordinances, regulations, policies and any other requirements of any Governmental Agency relating to health, safety, the environment or to any Hazardous Substances, including without limitation, CERCLA, the Resource Conservation Recovery Act (RCRA), the Hazardous Materials Transportation Act, the Toxic Substance Control Act, the Endangered Species Act, the Clean Water Act, the Clean Air Act, the Occupational Safety and Health Act (to the extent the same relates to Hazardous Substances), and Chapters 376, 403, and 404 of the Florida Statutes, each as hereafter amended from time to time, and the present and future rules, regulations and guidance documents promulgated under any of the foregoing or under similar laws, ordinances, regulations, policies or requirements of other states or localities. "Transfer" means the transfer of title to all or any part of the Property pursuant to the provisions of Section 265-23 of the City Code and the provisions of Resolution No. "Governmental Agency" means any federal, state, municipal or other governmental or quasi-governmental court, agency, authority or district, but excluding the City of Sunny Isles Beach, Florida. "Governing State" means Florida. "Hazardous Substances" means (a) any chemical, compound, material, mixture or substance that is now or hereafter defined or listed in, or otherwise classified pursuant to, any Environmental Laws as a "hazardous substance", "hazardous material", "hazardous waste", "extremely hazardous waste", "acutely hazardous waste", "radioactive waste", "infectious waste", "biohazardous waste", "toxic substance", "pollutant", "toxic pollutant", "contaminant", or any formulation not mentioned herein intended to define, list, or classify substances by reason of deleterious properties such as ignitability, corrosivity, reactivity, carcinogenicity, toxicity, reproductive toxicity, "EP toxicity", or "TCLP toxicity"; (b) petroleum, natural gas, natural gas liquids, liquefied natural gas, synthetic gas usable for fuel (or mixtures of natural gas and such synthetic gas) and ash produced by a resource recovery facility utilizing a municipal solid waste stream, and drilling 28520513.10309020050P 95173993 2 fluids, produced waters and other wastes associated with the exploration, development or production of crude oil, natural gas, or geothermal resources; (c) asbestos in any form; (d) urea formaldehyde foam insulation; (e) polychlorinated biphenyls (PCBs); (f) radon; and (g) any other chemical, material, or substance exposure to which is limited or regulated by any Governmental Agency because of its quantity, concentration, or physical or chemical characteristics, or which poses a significant present or potential hazard to human health or safety or to the environment if released into the workplace or the environment. "Hazardous Substances" shall not include ordinary office supplies and repair, maintenance and cleaning supplies maintained in de minimis, reasonable and necessary quantities and used in accordance with all Environmental Laws. "Hazardous Substance Activity" means any actual, proposed or threatened storage, holding, existence, release, emission, discharge, generation, processing, treatment, abatement, removal, disposition, use, handling or transportation by any Person of any Hazardous Substance at, from, under, into or on the Property or the Project or surrounding property. "Losses" means any and all losses, liabilities, damages, demands, claims, actions, judgments, causes of action, assessments, penalties, costs and expenses, including, without limitation, remedial, removal, response, abatement, cleanup, legal, investigative and monitoring costs and other related costs (and including, without limitation, reasonable attorneys' fees and costs, reasonable consultants' fees and costs, and reasonable accountants' fees and costs). "Person" means and includes natural persons, corporations, limited liability companies, limited liability partnerships, limited partnerships, general partnerships, joint stock companies, joint ventures, associations, companies, trusts, banks, trust companies, land trusts, business trusts, real estate investment trusts or other organizations, whether or not legal entities, and governments, agencies and countries and political subdivisions thereof. "Post-Transfer Environmental Losses" means Losses suffered or incurred, following the Transfer to the City, arising out of or as a result of: (a) the occurrence, at any time prior to the Transfer, of any Hazardous Substance Activity; (b) any violation, at any time prior to the Transfer, of any applicable Environmental Laws relating to the Property or to the ownership, use, occupancy or operation thereof; (c) any investigation, inquiry, order, hearing, action, or other proceeding by or before any Governmental Agency in connection with any Hazardous Substance Activity or any alleged violation of any Environmental Laws relating to the Property occurring or allegedly occurring at any time prior to the Transfer; or (d) any claim, demand or cause of action, or any action or other proceeding, whether meritorious or not, brought or asserted against the City which relates to, arises from or is based on any of the matters described in clauses (a) or (b), or any allegation of any such matters. As used in this definition, the phrase "at any time prior to the Transfer" includes: (a) the period 28520513.1 030902 0050P 95173993 3 prior to the time of Owner's acquisition of the Property or any portion thereof; (b) the period of Owner's ownership of the Property or any portion thereof. 2. Indemnitv. (a) Owner hereby indemnifies and agrees to defend, and hold harmless City for, from and against any and all Post-Transfer Environmental Losses arising out of Existing Contaminants, as defined herein. All obligations of Owner hereunder shall be payable on demand, and any amount due and payable hereunder by Owner to City which is not paid within thirty (30) days after written demand therefor from City with an explanation of the amounts demanded shall bear interest from the date of such demand at the statutory interest rate on legal judgments, as that interest rate may be changed, from time to time.. b) If City becomes aware of any loss, claim, demand, penalty, fine, damage, response cost, or liability ("Indemnifying Event") to which it believes it is entitled to indemnification under paragraph 2(a) above, it shall promptly notify Owner by sending such notice by certified or other controlled mail to those individuals or entities identified in Section 17 of this Agreement between the parties of even date. Owner, as indemnitor, shall have sole control over the investigation, defense, remediation, or settlement of any Indemnifying Event so long as (i) City has pre-approved in writing, within fifteen days from receipt by Owner of written notice of a request for approval by City, any assessment or remediation plan or settlement affecting the Property, which approval shall not be unreasonably withheld upon consideration of the cost of remediation and the impact upon business operations being conducted; (ii) Owner completes the assessment and remediation in accordance with such approved plan or settlement and iii) Owner acts in good faith with respect to the rights, duties and obligations of the Owner; provided, however, in any matter for which the City may ultimately have full or partial responsibility, the City may, in its sole discretion, decide to participate in the investigation, defense, remediation or settlement thereof at its own initial expense, subject to the right to seek reimbursement of reasonable attorneys' and consultants' fees and expenses, court costs and all other out-of-pocket costs, as otherwise provided herein, as applicable, in the event that it is found to be an Indemnifying Event. Any dispute or difference between City and Owner over any provisions of this indemnity, shall, initially, be the subject of informal discussions between Owner and City in an attempt to resolve the controversy. Failing the ability to so resolve such controversy, the dispute shall be submitted to a court of competent jurisdiction with both parties agreeing to move to expedite consideration of the matter and waiving the right, if any, to jury trial on any such issues. Prior to engaging counsel to defend hereunder, Indemnitor shall provide City with the name of the Attorney/s chosen by Indemnitor and the City shall have the reasonable right of approval thereof, but said approval shall not be unreasonably withheld or delayed. During the course of such litigation, Indemnitor will provide City with copies of all pleadings in the matter and shall periodically consult with City regarding the status and strategy of said litigation and shall reasonably consider the comments and suggestions of the City in regards to the conduct of the litigation and/or any proposes 28520513.1 030902 0050P 95173993O 4 settlement thereof. However, final determination of any such strategy and/or settlement shall solely be in the discretion of the Indemnitor. 3. Separate Obliqations. Owner shall not have any liability hereunder prior the Transfer, and no claim may be made hereunder by City prior to the Transfer. This Indemnity is given solely to protect City against Post-Transfer Environmental Losses and only arising out of Existing Contaminants. The obligations of Owner under this Indemnity are independent of, and shall not be measured or affected by (a) any amounts at any time owing by Owner for any environmental liabilities existing at the time of the Transfer, (b) Owner's obligations to seek and receive from affected Governmental Agencies an approved monitoring/ clean-up plan for Hazardous Substance Activity which has taken place on the Property prior to the Transfer 4. Existinq Contaminants. Owner agrees that to the extent the contamination in excess of applicable Governmental Agency standards on or in the Property is disclosed by the Environmental Reports (the "Existing Contaminants"), if any, including Existing Contaminants occurring in the groundwater ("the Groundwater Contaminants") or soils (the "Soil Contamination"), exceed the levels allowed under applicable Environmental Laws, Owner will undertake monitoring or remediation to lower such Existing Contaminants to permissible levels but only as mandated by any affected Governmental Agency. 5. Consent Aqreements' Proceedinqs. Owner agrees that it will undertake the defense of any administrative or judicial proceeding arising from or related to the Existing Contaminants. 6. Access. City agrees that Owner shall have the right to install piping and wells, to enter onto the Property and to take whatever other actions with regard to the Property as may be reasonably necessary for the purpose of complying with any monitoring or remediation requirements of any affected Government Agency. City agrees not to interfere with any testing wells or other structures installed or to be installed upon the Property in connection with the foregoing and further agree not to interfere with any reasonable action required to be taken by Owner under any monitoring or remediation plan approved by any affected Governmental Agency. Owner agrees, at its sole cost and expense, to restore the property to its former condition, ordinary wear and tear excepted, in the event any change in the Property in conjunction with any environmental monitoring or remediation of the Property. 7. Riqhts Not Exclusive. Owner's obligations hereunder shall survive the Transfer. The rights of City under this Indemnity shall be in addition to any other rights and remedies of the City against Owner under any other document or instrument now or hereafter executed by Owner, or at law or in equity (including, without limitation, any right of reimbursement or contribution pursuant to CERCLA), and shall not in any way be deemed a waiver of any 28520513.1 0309020050P 95173993 5 of such rights. City agrees that it shall have no right of contribution (including, without limitation, any right of contribution under CERCLA) or subrogation against Owner hereunder or against any property or collateral, and Owner hereby waives any and all rights of contribution (including, without limitation, any right of contribution pursuant to CERCLA) or subrogation which it may now or hereafter have against City, and only the City, hereunder and against any property or collateral. Owner further agrees that, to the extent that the waiver of its rights of subrogation and contribution as set forth herein is found by a court of competent jurisdiction to be void or voidable for any reason, any rights of subrogation or contribution Owner may have shall be junior and subordinate to the rights of City. However, nothing contained in this Agreement shall waive any rights of Owner, or responsibility of City, for any Hazardous Substance Activity that takes place after the date of the Transfer and caused directly or indirectly by City and this Agreement shall not indemnity City for any such post Transfer Hazardous Substance Activity by City, the public or the City's agents, employees or assigns. 8. Attorneys' and Consultants' Fees. Owner agrees to pay City all reasonable Attorneys' and Consultants' Fees and Costs incurred by City in connection with this Indemnity or the enforcement hereof. As used in this Indemnity, the term Attorneys' and Consultants' Fees and Costs shall mean the reasonable fees and expenses of counsel to the applicable party or any environmental consultants employed by counselor the City, which may include, without limitation, printing, photostatting, duplicating and other expenses, air freight charges, and fees billed for law clerks, paralegals, librarians, engineers, surveyor's or environmental professionals and others performing services under the supervision of an attorney or the consultant. The terms shall also include, without limitation, all such reasonable fees and expenses incurred with respect to appeals, arbitrations, bankruptcy proceedings and any post-judgment proceedings to collect any judgment, and whether or not any action or proceeding is brought with respect to the matter for which such fees and expenses were incurred if the City is the prevailing party in any such actions. The provisions allowing for the recovery of post-judgment fees, costs and expenses are separate and several and shall survive the merger of this Indemnity into any judgment. 9. Successors and Assions; Joint and Several Liability. This Indemnity shall be binding upon Owner, their heirs, representatives, administrators, executors, and successors and shall inure to the benefit of and shall be enforceable by City, its successors. The liability of Owner under this Indemnity shall be joint and several. 10. Governino Law. This Indemnity shall be governed by, and construed and enforced in accordance with, the laws of the State of Florida. 11. Severability. 28520513.1 030902 0050P 95173993 6 Every provision of this Indemnity is intended to be severable. If any provision of this Indemnity or the application of any provision hereof to any Person or circumstance is declared to be illegal, invalid or unenforceable for any reason whatsoever by a court of competent jurisdiction, such invalidity shall not affect the balance of the terms and provisions hereof, or the application of the provision in question to any other Person or circumstance, all of which shall continue in full force and effect. 12. Entire Aqreement. This Indemnity sets forth the entire agreement between Owner and City relative to the subject matter hereof, and this Indemnity supersedes all prior agreements and understandings relating to the subject matter hereof. 13. Time is of the Essence. Time is strictly of the essence of this Indemnity. 14. No Waiver. No failure or delay on the part of City to exercise any power, right or privilege under this Indemnity shall impair any such power, right or privilege, or be construed to be a waiver of any default or an acquiescence therein, nor shall any single or partial exercise of such power, right or privilege preclude other or further exercise thereof or of any other right, power or privilege. No provision of this Indemnity may be changed, waived, discharged or terminated except by an instrument in writing signed by the party against whom enforcement of the change, waiver, discharge or termination is sought. 15. Counterparts. This Indemnity may be executed in any number of counterparts, each of which shall be deemed an original and all of which shall constitute one and the same Indemnity. Any signature page of this Indemnity may be detached from any counterpart of this Indemnity and reattached to any other counterpart of this Indemnity identical in form hereto but having attached to it one or more additional signature pages. 16. Notices. Any notice, or other document or demand, required or permitted under this Indemnity shall be in writing addressed to the appropriate address set forth below and shall be deemed delivered on the earliest of (a) actual receipt, (b) the next Business Day after the date when sent by recognized overnight courier for next Business Day delivery, or (c) the second Business Day after the date when sent by certified mail, postage prepaid. Any party may, from time to time, change the address at which such written notices or other documents or demands are to be sent, by giving the other parties written notice of such change in the manner hereinabove provided. 28520513.1 030902 0050P 95173993 7 To Owner: <<Owner Name>> <<Owner St Add1>> <<Owner St Add2>> <<Owner_City>>, <<Borrower_State>> <<Borrower_Zip>> Attn: <<Owner Attm> To City: City of Sunny Isles Beach, Florida c/o City Manager 17070 Collins Avenue Suite 250 Sunny Isles Beach, FL 33160 17. WAIVER OF JURY TRIAL. OWNER AND CITY EACH HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT THEY MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY CONTROVERSY OR CLAIM, WHETHER ARISING IN TORT OR CONTRACT OR BY STATUTE OR LAW, BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH, THIS INDEMNITY (INCLUDING, WITHOUT LIMITATION, THE VALIDITY, INTERPRETATION, COLLECTION OR ENFORCEMENT HEREOF), OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY IN CONNECTION HEREWITH. EACH PARTY ACKNOWLEDGES AND AGREES THAT NO REPRESENTATIONS OF FACT OR OPINION HAVE BEEN MADE BY ANY PERSON TO INDUCE THIS WAIVER OF TRIAL BY JURY OR TO IN ANY WAY MODIFY OR NULLIFY ITS EFFECT. THIS PROVISION IS A MATERIAL INDUCEMENT FOR OWNER ENTERING INTO, AND CITY'S ACCEPTING, THIS INDEMNITY AND THE PARTIES WOULD NOT HAVE ENTERED INTO OR ACCEPTED THIS INDEMNITY WITHOUT THIS WAIVER. CITY AND OWNER ARE EACH HEREBY AUTHORIZED TO FILE A COPY OF THIS SECTION 17 IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER OF JURY TRIAL. 18. Consent to Jurisdiction. Owner hereby consents to the jurisdiction of any state or federal court located within the Governing State in any suit, action or proceeding brought under or arising out of this Indemnity (and further agrees not to assert or claim that such venue is inconvenient or otherwise inappropriate or unsuitable) and waive personal service of any and all process upon it and consent that all service of process be made by certified mail directed to Owner at the address set forth in this Indemnity. 19. Rules of Construction. 28520513.10309020050P 95173993 8 Where the identity of the parties to this Indemnity or the circumstances make it appropriate, the masculine gender includes the feminine and/or neuter, and the singular number includes the plural. Article and Section headings in this Indemnity are included for convenience of reference only and shall not constitute a part of this Indemnity for any other purpose or be given any substantive effect. The recitals to this Indemnity are incorporated herein and made a part hereof. All exhibits to this Indemnity shall constitute a part of this Indemnity. Owner and City have each had an opportunity to review and negotiate the terms of this Indemnity; accordingly, the rule requiring that language be construed against the drafting party shall not be applicable to this Indemnity. 28520513.1 030902 0050P 95173993 9 IN WITNESS WHEREOF, Ownerls have duly executed and delivered this Indemnity. "OWNER" a Florida corporation By: Its: a Florida corporation. 28520513.1 030902 0050P 95173993 5-1 ----- ATTACHEMENT TO RESOLUTION NO. 2004- Park Cost Estimate City of Sunny Isles Beach 5/21/04 17200 Collins Ave. Description Quantity Unit Price Amount PAVING $ 6,411 DRAINAGE $ 9,850 STRIPING $ 572 LANDSCAPING 1 Bermuda Sod on 6" Top Soil 81,240 SF 0.90 $ 73,116 2 Benches 8 EA 1,200.00 $ 9,600 3 Joint-use Fitness Center 1 LS 20,000.00 $ 20,000 4 Trash Recepticles 5 EA 1,400.00 $ 7,000 5 Decorative Picket Fence 750 LF 40.00 $ 30,000 6 Irregation 1 LS 45,000.00 $ 45,000 7 Bike Racks 2 EA 600.00 $ 1,200 8 Concrete Sidewalk 15,500 SF 3.00 $ 46,500 9 Open Air Pavilion 1 EA 35,000.00 $ 35,000 10 Drinking Fountain 2 EA 2,200.00 $ 4,400 11 Playground with Equipment 1 EA 60,000.00 $ 60,000 12 Palms: Cocopalm 12' Grey Wood 30 EA 1,200.00 $ 36,000 13 Trees: Mahogany 14-16' & Gumbo Limbo 75 EA 350.00 $ 26,250 14 Shrubs: 1/2 cocoplum 1/2 dwarf clusia - 3 gal 3,000 EA 9.50 $ 28,500 15 Groundcover: Ficus Green Island - 3 gal 5,000 EA 10.00 $ 50,000 CLEARING $ 10,000 MISCELLANEOUS $ 2,188 SUBTOTAL $ 501,588 CONTINGENCY 20.85% $ 104,603 CONSTRUCTION TOTAL $ 606,190 ENGINEERING AND ADMINISTRATION $ 93,810 GRAND TOTAL $ 700,000 EafJibit "'e"