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AGREEMENT
This Agreement (the "Agreement") is made and entered into by and
between the City of Miami, a municipal corporation ("City") and City National Bank of
Florida, as Trustee under Land Trust No. 2401-1863-00 dated December 9, 2004
('Related").
WHEREAS:
A. The City is the defendant in that certain lawsuit originally brought by
William B. Brickell, James B. Brickell, Jr., Beatrice A. Brickell, Mary Snyder and Archie
K. Purdy under Case No.: 88 -0230 -CIV -Highsmith in the United States District Court,
Southern District of Florida (the "Lawsuit").
B. The Lawsuit involves a claim by the current heirs of the Brickell Family
(the Brickell Heirs) to title by reversion of that certain property commonly referred to as
Brickell Park which is legally described in Exhibit "A" hereto (the "Land"). The title to the
Land is currently held by City National Bank of Florida, as Trustee under Land Trust No.
2401-0915-00 dated November 29, 2000 (the "Trust") pursuant to a court order in the
Lawsuit.
C. Related has acquired 100% of the beneficial interest in the Trust, together
with all of the rights of the plaintiffs in the Lawsuit. The beneficiaries of Related are
affiliated with and controlled by The Related Group of Florida, a Florida general
partnership ("TRGF").
D. Related has agreed to cause all of the. Land, less two portions along the
northern boundary, to be forever dedicated as a passive public park to be forever known
as "The Brickell Park". The portion of the Land to be forever dedicated as a park is
legally described in Exhibit "B" hereto and is hereinafter referred to as the "Park Land".
The portion of the Land not being dedicated as a park and which shall be retained by
Related is legally described in Exhibit "C" hereto and hereinafter referred to as the
"Related Parcel".
E. Related desires to settle and dismiss the Lawsuit and convey and
dedicate the Park Land to the City as a public park and the City desires to accept such
dedication, subject to and in accordance with the provisions of this Agreement.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties agree as follows:
1. Recitations. The foregoing recitations are true and correct and are
incorporated herein by this reference.
2. Settlement of Lawsuit Conveyance of Title. Both the City and Related
agree to promptly file a joint stipulation with the Court in the Lawsuit requesting a final
order dismissing the Lawsuit with prejudice and directing the Trustee of the Trust to take
the following actions:
a. Cause the execution and recordation in the public records of Miami -Dade
County, Florida a Declaration of Restrictive Covenants ("Declaration")
forever requiring the use of the Park Land as a passive public park to be
forever known as "The Brickell Park", which Declaration shall be in the
form attached hereto as Exhibit "D".
b. Cause the execution and recordation in the public records of Miami -Dade
County, Florida a temporary Construction Easement (the "Easement") in
favor of Related for the temporary use of a portion of the Park Land for
construction, staging, and sales office purposes as permitted in the
Declaration and in the form attached hereto as Exhibit "E".
C. Execute and record in the public records of Miami -Dade County, Florida a
Trustee's deed conveying title to the Park Land to the City, subject to the
Declaration and Easement and in the form attached hereto as Exhibit "F".
d. Execute and record in the public records of Miami -Dade County, Florida, a
Trustee's deed conveying title to the Related Parcel to Related in the form
attached hereto as Exhibit "G".
3. Agreement by the Cit . The City agrees that promptly following execution
of this Agreement it will execute the Joinder to the Declaration. The City further agrees
to cooperate with Related and execute any and all documents reasonably required in
connection with the resolution of the Tax Litigations (as hereinafter defined) and the
administrative action pending with the Miami -Dade County Value Adjustment Board (the
"VAB Appeal").
4. Taxes and Assessments. The parties acknowledge and agree that the
Trust is in settlement negotiations with Joel W. Robbins, as Property Appraiser of
Miami -Dade County (the "Property Appraiser") pursuant to which (a) the Property
Appraiser will make the determination that the Land shall be totally exempt from taxes
for the tax years 2001-2005, inclusive, as it has been used solely as a park during the
tax years in question, (b) the Property Appraiser will agree to dismiss the current actions
pending in the Eleventh Judicial Circuit Court in and for Miami -Dade County, Florida
with case numbers 04-23745 CA 05, 03-25509 CA 04 and 02-028093 (collectively, the
"Tax Litigations"), (c) Related and the Property Appraiser will enter an Agreed Order in
the VAB Appeal, and (d) the Property Appraiser will make the determination that the
Park Land shall be totally exempt from taxes for so long as it remains a park (the
"Settlement"). Following the conveyance of the Park Land to the City, Related will be
solely responsible for any taxes that accrue (a) with respect to the Related Parcel, and
(b) in the event the Property Appraiser assesses any portion of the Park Land as a
result of the Easement. Notwithstanding anything to the contrary contained herein, in
the event that there is no Settlement, the parties agree that they shall split 50150 any
back taxes and assessments, including accrued interest, due with respect to the Land
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for the years 2001-2005, inclusive as well as any taxes and assessments due with
respect to the Park Land for the year 2006 and going forward. Notwithstanding the
foregoing, the City and Related shall continue to diligently pursue the Tax Litigations
and VAB Appeal to their conclusions, and commence such additional proceedings as
required for future years, including exhausting all available appeals; and the cost of
such litigation shall be born 50150 between Related and the City.
5. improvements and Maintenance of Park Land. Related shall cause the
Park Land to be improved on an interim basis promptly, but in no event later than six (6)
months following the execution and delivery of this Agreement substantially in
accordance with the Interim Improvement Plan" attached hereto as Exhibit "H". Within
the earlier to occur of (a) sixty-eight (68) months following the execution and delivery of
this Agreement, or (b) six (6) months following the termination of the Easement, Related
shall cause the Park Land to be improved substantially in accordance with the
"Permanent Improvement Plan" attached hereto as Exhibit "I". Related shall be
responsible for maintaining the Park Land in perpetuity to a standard which shall equal
or exceed the standard to which the public parks in the City are maintained. Related
shall grant an easement to the public providing for access over the baywalk to be
located on the Brickell Sheraton Site and shall maintain the baywalk to be located on
the Brickell Sheraton Site and the baywalk to be located on the Park Land in
accordance with the plans filed with and approved by the City in connection with the
approval of the MUSP (as hereinafter defined). Following the creation of a master
homeowner's association to operate the adjacent Brickell Sheraton Site, as herein
defined and as provided in the Declaration (the "Master Homeowner's Association"), the
maintenance obligations set forth herein shall be assigned to and assumed by such
Master Homeowner's Association whereupon Related shall be released from such
obligations. The obligations of Related and/or the Master Homeowner's Association
hereunder shall be memorialized in a covenant running with the Brickell Sheraton Site.
6. Covenant in Lieu, Simultaneously with the conveyance of title to the City
of the Park Land, the City agrees in its proprietary capacity as owner of the Park Land,
to enter into a covenant -in -lieu of unity of title with Related (as owner of the adjacent
property to the north commonly referred to as the "Brickell Sheraton Site" and legally
described in Exhibit "J" attached hereto, which description and definition shall include
the Related Parcel), in a form reasonably satisfactory to the City, and in compliance with
Section 910.7 of the City of Miami Zoning Ordinance (the "Zoning Ordinance") agreeing
that the Brickell Sheraton Site and the Park Land shall be treated as a unified single
parcel for purposes of set backs, view corridors, open space and lot coverage, but
specifically excluding density and floor area requirements, and subject to the limitations
and regulations set forth by the Comprehensive Plan and the Zoning Ordinance. In that
regard, Related shall be further authorized to file any and all applications for building
rights on the Brickell Sheraton Site and to file same on behalf of itself and on behalf of
the City, but solely in the City's capacity as owner of the Park Land and not in any
governmental, quasi-judicial or regulatory capacity.
7. [Intentionally omitted]
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B. Development Criteria. In connection with the future development of the
Brickeli Sheraton Site, the City, as property owner, acknowledges and agrees that:
a. The required East-West pedestrian walkway shall be located within the
Park Land.
b. Subject to compliance with all laws and codes any bones and other
artifacts on the Brickell Sheraton Site may be removed and reinterred in
the Park Land.
c. Subject to compliance with all City tree ordinances, Oak trees now located
within the Brickell Sheraton Site may be relocated to the Park Land.
d. The City shall support Related's request of Miami -Dade County to
consider the open space created by the Park Land as satisfying the
Miami -Dade County view corridor requirement.
e. Related shall be entitled to seek appropriate approval for construction of
its sales and construction center as permitted by the Easement prior to
obtaining the Major Use Special Permit with respect to the Brickell
Sheraton Site (the "MUSP").
g. Exercise of City Discretion. Notwithstanding any of the provisions set forth
herein, including the acknowledgements set forth in paragraph six (6), the parties
expressly acknowledge that any approvals which are required for the future
development of the Brickell Sheraton Site shall be undertaken in accordance with
established requirements of applicable law in the exercise of the City's jurisdiction under
the police power. Nothing in this Agreement is intended to limit or restrict the powers
and responsibilities of the City in acting on the MUSP application or any other zoning,
land use, or development approval or permit, by virtue of the fact that the City has
consented to the filing of an application or joined in the covenant -in -lieu, solely in its
capacity as owner of the Park Land or by virtue of this Agreement. The parties
recognize that the City, and its boards, retain sole discretion under their police powers
as to whether to grant or deny the applications filed for development approvals. The
parties further recognize and agree that these proceedings shall be conducted openly,
fully, freely, and fairly in full accordance with the law and with both procedural and
substantive due process to be accorded to the applicant and any member of the public.
10. Representations. Each party hereby represents and warrants to the other
that the approval, execution and delivery of this Agreement has been duly authorized
and that this Agreement is binding on them respectively in accordance with its terms.
11. Successor and Assigns. The agreements contained herein shall be
binding upon and inure to the benefit of the permitted successors and assigns of the
respective parties hereto.
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12, ApplicableLaw, This Agreement shall be construed and enforced in
accordance with the laws of the State of Florida. Venue shall be. in Miami -Dade
County, Florida.
13. Severability. If for any reason any provision, sentence, word or phrase
contained in this Agreement is determined to be invalid or unenforceable under the laws
of the State of Florida or the City of Miami, then such provision, sentence, word or
phrase shall be deemed modified to the extent necessary in order to conform with such
laws, or if not modifiable, then the same shall be deemed severable, and in either even,
the remaining terms and provisions of this Agreement shall remain unmodified and in
full force and effect.
14. Counterpart This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original of this Agreement binding on
the parties hereto.
15. Entire A regiment, This Agreement constitutes the entire agreement
between the parties hereto with respect to the transactions contemplated herein and
supercedes all prior understandings or agreements between the parties.
16. Titles. Titles of provisions of this Agreement are for descriptive purposes
only and shall not control or alter the meanings of this Agreement as set forth in the text.
15. Further Assurances. The parties agree to execute and deliver such
further instruments and do such further acts and things as may be required to carry out
the intent and purposes of this Agreement.
17. Waiver of Jury Trial• Attorneys' Fees. Each of the parties hereto waives
trial by jury and will bear its own attorneys' fees in any litigation, suit or proceeding
between them in any court with respect to, in connection with or arising out of this
Agreement, or the validity, interpretation or enforcement thereof.
18. Amendments. No amendment or modification of this Agreement shall be
effective unless reflected in a document executed and delivered by both parties hereto.
19. Remedies Cumulative. All rights, privileges and remedies afforded the
parties by this Agreement shlnp� bcumulative
deemed to be a waiverusive, and of any other right, e of
any one of such remedies shall
or privilege provided for herein or available at law or equity.
20. Interpretation, In interpreting this Agreement, the use herein of (i) the
singular number shall be deemed to mean the plural, (ii) the masculine gender shall be
deemed to mean the feminine or neuter and (iii) the neuter gender shall be deemed to
mean the masculine or feminine whenever the sense of this Agreement so requires and
both parties shall be presumed to have fully participated in the preparation of this
Agreement so that it is not more strictly construed against either party.
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21. Assignment. This Agreement shall not be assigned by Related except to
an entity affiliated with and controlled by TRGF pursuant to an assignment and
assumption agreement whereby the assignee shall assume, but Related shall remain
liable for all obligations hereunder, including specifically, the obligations set forth in
Sections 3 and 4 hereof.
22. Notices. Any and all notice and other communications required or
permitted under this Agreement shall be deemed adequately given only if in writing
delivered either in hand, by mail, or by expedited commercial carrier which provides
evidence or delivery or refusal addressed to the recipient, postage prepaid and
registered with return receipt requested, if by mail, or with all freight charges prepaid, if
by commercial carrier, or by telecopy. All notices and other communications shall be
deemed to have been given for all purposes of this Agreement upon the date of receipt
or refusal. All such notices and other communications shall be addressed to the parties
at their respective addresses set forth below or at such other addresses as any of them
may designate by notice to the other parties.
Notices to Related shall be addressed to:
c/o The Related Group of Florida
2828 Coral Way -- Penthouse
Miami, FL 33145
Attention: William Thompson
Facsimile: (305) 460-9911
With a copy to:
Shubin & Bass
48 S.W. First Street
3`d Floor
Miami, FL 33130
Attention: John K. Shubin, Esq.
Facsimile: (305) 381-9457
Notices to the City shall be addressed to:
City Manager
City of Miami
444 SW 2nd Avenue, 9th Floor
Miami, Florida 33130
Facsimile: (305)
D
With a copy to:
City Attorney
City of Miami
444 SW 2nd Avenue, 9t' Floor
Miami, Florida 33130
Facsimile: (305) 418-1803
[The remainder of this page is intentionally left blank.]
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In Witness whereof, this Agreement has been executed as of the dates
Indicated below.
Approved as to Form and Correctness:
By:
Jorge L. Fernandez
City Attorney Administrator
Approved as to Insurance
By:
Dania F. Carrillo
Risk Management
N.
CITY OF MIAMI, a municipal corporation
0
Date:
CITY NATIONAL BANK OF FLORIDA, a
national banking association, as Trustee under
LAND TRUST AGREEMENT NUMBER 2401-
1863-00
By:
William E. Shockett, as Executive
Vice President and Trust Officer
CITY NATIONAL BANK OF FLORIDA
EXECUTES THIS INSTRUMENT SOLELY
AS TRUSTEE UNDER LAND TRUST
AGREEMENT NUMBER 2401-1863-00
AND NOT INDIVIDUALLY AND NO
PERSONAL JUDGMENT SHALL EVER BE
SOUGHT OR OBTAINED AGAINST SAID
BANK BY REASON OF THIS
INSTRUMENT.
W W
EXHIBIT "A"
MIAMI RjvE,R
BRICKELL POINT
PLAT BOOK 8, PAGE 93
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F ORTIN, LEAVY, S KILES, INC -
CONSULTING ENGINEERS, SURVEYORS & M"PERS
FLORIDA CERTWICATE OF AUTHORIZAT101+1 NUMAERu 00003653
180 Northeast 168th. Street / North Miami Beach. Florida. 33162
phone: 305-6534493 / Fa. 303-65 5-7132 / Email t lvv oom
LEGAL DESCRIPTION:
EXHIBIT "A"
A portion of "BRICKELL POINT", according to a Plat thereof, as recorded in Plat Book 8, at Page 93 and a portion of Doed
Book 323, Page 298, os shown on °BRICKELL POINT", according to a Plat thereof, as recorded in Plat Book 8, at Page 34,
and a portion of Brickell Park, according to the Plat thereof, as recorded in Plat Book 15 at Page 39, alt of the above being
recorded in the Public Records of Miami—Dade County, Florida, lying and being in the City of Miami, Miami --Dade County,
Florida, being more particularly described as follows:
Commence at the intersection of the Easterly extension of the North line of Southeast 5th Street with the East right—of--woy
line of Brickell Avenue as shown on said plat of "BRICKELL POINT" recorded in Plat Book 8 at Page 34; thence South
76'3935" East, along the North line of the Private Drive as shown on said "BRICKELL POINT" for 128.28 feet to the Point of
North line for 105.24 feet to a
Beginning of the hereinafter parcel of land; thence continue South 76'39'35" East, along said
point of curvature; thence Northeasterly along the North Line of said Private Drive, as shown an said plat, and along a
circular curve to the left, concave to the Northwest, having a radius of 25 feet, through a central angle of 28'25'34", for on
arc distance of 12.40 feet to a point of non—tangency; thence North 83'47'28" East for 17,02 feet; thence North 57'08'37"
East for 14.11 feet; thence South 77'43'17" East for 10.49 feet; thence South 63'46'58" Eost for 45.61 feet; thence South
76'39'35" East for 286.23 feet; thence North 08'49'52' East for 20.46 feet; thence South 76'39'35" East for 36.41 feet to u
point on the Dade County Bulkhead Line according to the plot thereof as recorded in Plat Book 74 at Page 18 of said Public
Records of Miami—Dade County, Florida, also being the U.S. Harbor Line; thence South 05'37'19" West along said Bulkhead and
Harbor lines for 99.82 feet; thence departing said Bulkhead and Harbor lines, North 76'39'35" West along a line being 70.00
feet South of and parallel with said Easterly extension of the North line of Southeast 5th Street, for 660.66 feet to a point
on said East right of way line Of Brickell Avenue; thence North 13'20'55" East along said East right of way line for 19,82
feet to ❑ point of curvature; thence Northeasterly along a circular curve to the right, concave to the Southeast, having a
radius of 20 feet, through a central angle of 74'46'30", for an arc distance of 26.10 feet to a point of tangency; thence
North 88'07'25" East for 117.66 feet to the Point of Beginning.
SURVEYOR'S NOTES:
This site lies in Section 6, Township 54 South, Range 42 East, City of Miami,
Miami—Dade County, Florida.
— Bearings hereon are referred to an assumed value of North 13'20'55" East for the East
right of way line of Brickell Avenue.
— Dimensions indicated hereon are based on Fortin, Leavy, Skiles, drawing no. 2930-049-1,
— This is not o "Boundary Survey" but only a graphic depiction of the description
shown hereon.
SURVEYOR'S CERTIFICATION:
4 hereby certify that this "Sketch of Description" was made under my responsible charge on
May 16, 2005, and meets the Minimum Technical Standards as set forth
by the Florida Board of Professional Surveyors and Mappers in Chapter 61G17-6,
Florida Administrative Code, pursuant to Section 472.027, Florida Statutes.
"Not valid without the signature and the original raised
goal of a Florida Licensed Surveyor and Mapper"
FO , LEAVY, KILES, INC,, L83653
By:�j— G
^Daniel C. Fortin, For The Firm
Surveyor and Mapper, LS2853
State of Florida.
& CERTIFICATION
F oRuN, LEAVY, S KILES, INC.
CONSULTING ENGINEERS, SURVEYORS & MAPPERS
FLORIDA CERTIFICATE OF AUTHORIZATION N M33ER: 00003653
180 Northeast 168th. Street / North Miami Beach, Florida. 33162
1D%-.- 3nS-653-4493 / Fax 305-631-7152 / Email fla(&f1asurvey.corn
LEGAL DESCRIPTION
EXHIBIT "A"
BRICKELL HOMEPLACE
LOT 1 OF BLOCK 103S
BRICKELL POINT
PLAT BOOK 8, PAGE 93
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CONSUI,nNG ENGINEERS, SURVEYORS & MAPPERS
FLORMA CERTMCATE OF AUTHORiZAT10N NuM:B E.'R- 00043653
180 Northeast 168th. Street / North Miami Beach, Florida, 33162
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