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HomeMy WebLinkAboutExhibit CTHE GOLDSTEIN ENVIRONMENTAL LAW FIRM, P.A. Bronmfields, Transactions, Due Diligence, Development, Permitting Cleanups & Compliance 2100 Ponce de Leon Boulevard, Suite 710 Coral Gables, Florida 33134 Telephone: (305) 777-1680 www.goldsteinenvlaw.com Michael R. Goldstein, Esq. Direct Dial: (305) 777-1682 Email: mgoldstein&goldsteinenvlaw.com January 25, 2022 Via Email Mr. Arthur Noriega, City Manager Miami Riverside Center (MRC) 444 SW 2nd Ave Miami, FL, 33130 Re: Proposal for Designation of the Property Located at 140 and 142 SW 11" Street, Miami, FL 33130 as a Brownfield Area Pursuant to §376.80(2)(a), Florida Statutes Dear Mr. Noriega: On behalf of 191 SW 12 Owner, LLC ("191 SW 12"), we respectfully propose that the City of Miami (the "City") exercise its statutory authority to designate the properties located at 140 and 142 SW 11`h Street, Miami, FL 33130, occupying Folio Numbers 01-0208-050-1010 and 01-4138-051-0380 (collectively, the "Subject Property"), as a Brownfield Area pursuant to Chapter 376.80(2)(a), Florida Statutes ("F.S." ).1 Pursuant to the Public Benefit Agreement Regarding Construction of the New Fire Station No. 4 between 191 SW 12 and the City dated April 13, 2020,191 SW 12 will be investing approximately $3 million in much -needed public park improvements at the Subject Property. These improvements will include, but are not limited to, a new full -court basketball court, dog run areas, pedestrian plaza with water feature, seating areas and tables, lush landscaping making use of existing and new trees and plants, improved and new playground areas, and enhanced power, lighting, water, and drainage at the 1 A legal description and property cards depicting the location of the Subject Property are enclosed herein at Exhibit A. Please note, 191 SW 12 only recently purchased the Subject Property, therefore Miami -Dade County property records still Est the sellers of the Subject Property, CS Brickell, LLC and 191 SW 12 St, LLC, as the owners. {00046316.DOCx_ 11 Mr. Arthur Noriega, City Manager January 25, 2022 Page 2 Subject Property. Once complete, the Subject Property will remain a public park for the use of City residents and visitors. 191 SW 12 proposes this brownfield area designation due to the presence of actual contamination on the Subject Property from historical waste dumping that occurred prior to its use as a public park. The existence of the contamination will require that 191 SW 12 incur significant time and expense for technical, engineering, and legal consultants in order to properly conduct environmental assessment and rehabilitation, as well as to ensure contaminated media is properly handled and monitored during implementation of the planned improvements. The designation has thus become a key part of this ambitious project's success by enabling 191 SW 12 to access certain regulatory and economic incentives to mitigate and manage the risk and expense associated with the discovery of contamination and the necessary response. It is also key to furthering the City's goals for sustainable development and enhanced public spaces in the City's thriving urban core.2 In taking up the designation of a local government -owned brownfield area under Florida's Brownfields Redevelopment Act, a local government must take the following three steps: (i) comply with enumerated notice and public hearings requirements pursuant to Section 376.80(1)(c)4., F.S.; (ii) consider the four factors set forth at Section 376.80(2)(a), F.S.; and (iii) adopt a Resolution pursuant to Section 376.80(1)(c)(2), F.S., following two advertised public hearings. Enclosed at Exhibit B is a Brownfield Area Designation Eligibility Statement that describes the designation process, applies the four factors for consideration at Section 376.80(2)(a), F.S., and explains how the Subject Property meets the definition of a "brownfield site" at Section 376.79(4), F.S. As you evaluate this request and supporting materials, please feel free to contact us with any questions or should further information be required. Thank you. Very truly yours, THE GOLDSTEIN ENVIRONMENTAL LAW FIRM, P.A. Michael R. Goldstein /mrg Enclosures cc: 191 SW 12 Owner, LLC Harry B. James IV, Environmental Compliance Specialist, City of Miami 2 The City previously adopted a resolution designating the Subject Property a brownfield area in 2014. However, the required notice procedures were not followed and the resolution was later deemed to have been improperly adopted, ahaving no force and effect in law. {00046316. DOCX. 1 1 Exhibit A 100011414.DOCX. 11 EXHIBIT A - LEGAL DESCRIPTION Lots 1, 2, 3, 4, 5, 17, 18, 19, and 20, Block 85 South, of CITY OF MIAMI PLAT, according to the Plat thereof, as recorded in Plat Book B, Page 41, of the Public Records of Miami -Dade County, Florida. and Lots 6 and 7, Block 85 South, MIAMI HEIGHTS, according to the Plat thereof, as recorded in Plat Book 5, Page 29, of the Public Records of Miami -Dade County, Florida. OFFICE OF THE PROPERTY APPRAISER Summary Report Property Information Folio: 01-0208-050-1010 Property Address: 140 SW 11 ST Miami, FL 33130-1005 Owner CITY OF MIAMI-DEPT OF P&D ASSET MANAGEMENT DIVISION 444 SW 2 AVE STE #325 MIAMI, FL 33130-1910 Mailing Address PA Primary Zone 8002 PARKS & RECREATION 8066 VACANT GOVERNMENTAL: EXTRA FEA OTHER THAN PARKING 0/0/0 0 0 0 Sq.Ft 0 Sq.Ft Primary Land Use Beds / Baths / Half Floors Living Units Actual Area Living Area Adjusted Area 0 Sq.Ft Lot Size 67,500 Sq.Ft Year Built 0 Assessment Information Year 2021 2020 2019 Land Value $23,625,000 $23,625,000 $23,625,000 Building Value $0 $69,707 $66,538 XF Value $68,450 $20,021 $20,021 Market Value 1 $23,693,450 $23,714,728 $23,711,559 Assessed Value 1 $3,419,687 $3,061,954 $2,783,595 Benefits Information Benefit Type Assessment Reduction 2021 2020 2019 Non- Homestead Cap $20,273,763 $20,652,774 $20,927,964 Municipal Exemption $3,419,687 $3,061,954 $2,783,595 Note: Not all benefits are applicable to all Taxable Values (i.e. County, School Board, City, Regional). Short Legal Description CITY OF MIAMI SOUTH PB B-41 LOTS 1-2-3-4-5-17-18-19 & 20 BLK 85 LOT SIZE IRREGULAR Generated On : 8/26/2021 Taxable Value Information 2021 2020 2019 County Exemption Value 1 $3,419,687 $3,061,954 $2,783,595 Taxable Value $0 $0 $0 School Board Exemption Value 1 $23,693,450 $23,714,728 $23,711,559 Taxable Value $0 $0 $0 City Exemption Value 1 $3,419,687 $3,061,954 $2,783,595 Taxable Value $0 $0 $0 Regional Exemption Value 1 $3,419,687 $3,061,954 $2,783,595 Taxable Value $0 $0 $0 Sales Information Previous Sale I Price OR Book -Page Qualification Description The Office of the Property Appraiser is continually editing and updating the tax roll. This website may not reflect the most current information on record. The Property Appraiser and Miami -Dade County assumes no liability, see full disclaimer and User Agreement at http://www.miamidade.gov/info/disclaimer.asp Version: OFFICE OF THE PROPERTY APPRAISER Summary Report Property Information Folio: 01-4138-051-0380 Property Address: 142 SW 11 ST Miami, FL 33130-1005 Owner CITY OF MIAMI-DEPT OF P&D ASSET MANAGEMENT DIVISION 444 SW 2 AVE STE #325 MIAMI, FL 33130-1910 Mailing Address PA Primary Zone 8002 PARKS & RECREATION Primary Land Use 8940 MUNICIPAL: MUNICIPAL Beds / Baths / Half 0/0/0 Floors 1 Living Units 0 Actual Area Sq.Ft Living Area Sq.Ft Adjusted Area 780 Sq.Ft Lot Size 15,000 Sq.Ft Year Built 1941 Assessment Information Year 2021 2020 2019 Land Value $975,000 $975,000 $975,000 Building Value $13,335 $13,335 $13,335 XF Value $0 $0 $0 Market Value 1 $988,335 $988,335 $988,335 Assessed Value 1 $988,335 $988,335 $988,335 Benefits Information Benefit Type 2021 2020 2019 Municipal Exemption 1 $988,335 $988,3351 $988,335 Note: Not all benefits are applicable to all Taxable Values (i.e. County, School Board, City, Regional). Generated On : 8/26/2021 Taxable Value Information 2021 2020 2019 County Exemption Value 1 $988,335 $988,335 $988,335 Taxable Value $0 $0 $0 School Board Exemption Value 1 $988,335 $988,335 $988,335 Taxable Value $0 $0 $0 City Exemption Value 1 $988,335 $988,335 $988,335 Taxable Value $0 $0 $0 Regional Exemption Value 1 $988,335 $988,335 $988,335 Taxable Value $0 $0 $0 Sales Information Short Legal Description Previous Sale I Price I OR Book -Page I Qualification Description MIAMI HEIGHTS A SUB PB 5-29 LOT 6 & 7 BLK 85 LOT SIZE 100.000 X 150 The Office of the Property Appraiser is continually editing and updating the tax roll. This website may not reflect the most current information on record. The Property Appraiser and Miami -Dade County assumes no liability, see full disclaimer and User Agreement at http://www.miamidade.gov/info/disclaimer.asp Version: Exhibit B 100011414.DOCX. 11 Brownfield Area Designation Eligibility Statement' Southside Park Green Reuse Area 140 and 142 SW 11th Street, Miami, FL 33130 Folio Numbers 01-0208-050-1010 and 01-4138-051-0380 191 SW 12 Owner, LLC ("191 SW 12'� will be improving and rehabilitating two parcels of land owned by the City of Miami (the "City' located at 140 and 142 SW 111h Street, Miami, FL 33130, occupying Folio Numbers 01-0208-050-1010 and 01-4138-051-0380 (the "Subject Property', to provide an enhanced Southside Park for City residents and visitors in accordance with the Public Benefit Agreement Regardings Construction of the New Fire Station No. 4 between 191 SW 12 and the City dated April 13, 2020 (the "PBA").2 When complete, the improved Southside Park will preserve the First Miami High School historical site and include a new full -court basketball court; two dog run areas; a relocated playground and a new playground; water features with a pedestrian plaza; new landscaping throughout including a new lawn, new plants, relocated trees, and new trees; new hardscape areas to create pedestrian access to the Underline; new seating areas and tables; bike parking, and enhanced power, lighting, water, irrigation, and drainage to facilitate the planned park improvements at no cost to the City (the "Project'�.3 A paseo through the adjacent, in -progress 1 Southside Park development will also connect the improved Southside Park with Southwest 2nd Avenue. As such, 191 SW 12 respectfully requests that the City consider the applicable designation factors set forth at � 376.80(2)(a), Florida Statutes ("F.S."), and exercise its statutory authority to designate the Subject Property as a brownfield area.4 In addition, the Subject Property meets the definition of a "brownfield site" pursuant to � 376.79(4), F.S. I. The Brownfield Area Designation Process Brownfield area designations in Florida are governed by the provisions of � 376.80 of Florida's Brownfields Redevelopment Act (the "Act'. The Act creates a two -tiered process, recognizing a distinction between designations that are brought forward by the jurisdictional local government itself and those brought forward by any other non -governmental party.5 Within the self -designation process established for jurisdictional local governments, the Act creates yet another distinction — sites that lie within specified "redevelopment areas" versus those outside such areas. These specified redevelopment areas are enumerated at � 376.80(2)(b), F.S., and consist of community redevelopment areas, enterprise zones, empowerment zones, closed military bases, and designated Brownfield pilot project areas. The Subject Property does not fall into any of the 5 376.80(2)(b), F.S., specified redevelopment areas and, accordingly, the designation 1 A copy of § 376.80, Florida Statutes is enclosed at Attachment A. 2 See Attachment B for the PBA. A discussion of the Southside Park improvements may be found at Section 12(t). 3 See Attachment C for design plans for the improved Southside Park. 4 The City previously adopted Resolution No. R-14-0303 designating the Subject Property a brownfield area on July 24, 2014, however the City Attorney determined the resolution was not effective due to a lack of proper notice. This request is made in an effort to correct the ineffective notice from 2014 to allow the Subject Property to be rehabilitated under Florida's Brownfields Program by 191 SW 12. See Attachment D for a memorandum from the City Attorney to the City Clerk dated February 20, 2015, responding to questions on the notice requirements applicable to brownfield area designations proposed by the City and determining the previously adopted resolution has "no force and effect in law." 5 Compare 6 376.80(1)(b)1, Florida Statutes, and § 376.80(1)(b)2, Florida Statutes. {00046312.DOCX. 1 } considerations under 5 376.80(2)(a), F.S. apply. Accordingly, if the City exercises its discretion to designate a brownfield area pursuant to � 376.80(2)(a), F.S., the City must take the following steps: (i) comply with enumerated notice and public hearings requirements pursuant to 5376.80(1)(c)4, F.S.; (ii) at a public hearing, "consider" the following four factors: 1. whether the brownfield area warrants economic development and has a reasonable potential for such activities; 2. whether the proposed area to be designated represents a reasonably focused approach and is not overly large in geographic coverage; 3. whether the area has potential to interest the private sector in participating in rehabilitation; and 4. whether the area contains sites or parts of sites suitable for limited recreational open space, cultural, or historical preservation purposes; and (iii) adopt a Resolution pursuant to � 376.80(1)(c)2, F.S.. Each of these steps and factors as applied to the Subject Property are discussed in detail in the sections below. II. Application of the Brownfield Area Designation Requirements A. Compliance with Enumerated Notice and Public Hearing Requirements. Florida Statutes 5 376.80(1) (c)4.a. provides that, "[a]t least one of the required public hearings shall be conducted as closely as is reasonably practicable to the area to be designated to provide an opportunity for public input on the size of the area, the objectives for rehabilitation, job opportunities and economic developments anticipated, neighborhood residents' considerations, and other relevant local concerns." Florida Statutes 376.80(1) (c)4.b. further requires that, "[n]otice of a public hearing must be made in a newspaper of general circulation in the area, must be made in ethnic newspapers or local community bulletins, must be posted in the affected area, and must be announced at a scheduled meeting of the local governing body before the actual public hearing." The City Commission Chambers in which the City Commission opicalymeets is sufficientyclose to the proposed area to be designated and is reasonably practicable given the physical proximity of the Chambers to the su jectpmperty, the disruption to the City Commission's schedule to reconvene at the subjectproperty, the lack of any formal meeting facility with adequate facilities at the subjectpmperty, and the expectation by community members that any subsequent decisions by the City Commission regarding the subjectpmpery will occur in Chambers. On behalf of the City, 191 SIYI 12 will also safisft all applicable notice and opportunity to comment requirements established by g 376.80(1)(c)(4)(b), F.S., asfollows: (i) notice will be posted at the Subject Property; (ii) notice will be published in the Miami Herald; (iii) notice null be published in a local community bulletin; and (iv) a virtual community meeting will be held using a video and teleconferencingplatform. All notices will contain the following narrative: Rcprrsentatives for 191 S1V 12 Owner, LLC will hold a virtual community meeting, date to be announced, from 3:30 p.m. to 7:00 p.m. for the purpose of affording interested parties the opportunity to provide {00046312.DOCX. 1 } comments and suggestions about the potential designation of two parcels of land located at 140 and 142 S1V 11 th Street, Miami, FL 33130, occupying Folio Numbers 0 1-0208-050- 10 10 and 014138-051-0380, as a Brownfield Area. The designation is being made pursuant to Section 376.80, Florida Statutes, of Florida's Brownfield Redevelopment Act, and will involve two public hearings before the Miami City Commission. The virtual community meeting ivill also address future improvements and rehabilitation activities planned for the site. The virtual community meeting is free and open to all members of the public. Please register at https. / l bit 4l Southside or call (305) 640-5300 before the meeting to receive virtual meeting access instructions. For more information regarding the community meeting, including directions, the dates of the two public hearings, or to provide comments and suggestions regarding designation, development, or rehabilitation at any time before or after the meeting date, please contact 999 S1V 92th's representative, Michael R. Goldstein, who can be reached by telephone at (305) 777-1682, U.S. Mail at The Goldstein Environmental Law Firm, P.A., 2100 Ponce de Leon Blvd, Suite 710, Coral Gables, FL 33134, andl or email at mnoldsteina�goldsteinenvlaw.com. Proof of publication and posting will be provided to the City. B. "Consideration" of the Four Statutory Factors. Florida Statutes � 376.80(2)(a) provides that, "[i]f a local government proposes to designate a brownfield area that is outside a community redevelopment area, enterprise zone, empowerment zone, closed military base, or designated brownfield pilot project area, the local government shall provide notice, adopt the resolution, and conduct public hearings pursuant to paragraph (1)(c). At a public hearing to designate the proposed brownfield area, the local government must consider: 1. whether the brownfield area warrants economic development and has a reasonable potential for such activities; 2. whether the proposed area to be designated represents a reasonably focused approach and is not overly large in geographic coverage; 3. whether the area has potential to interest the private sector in participating in rehabilitation; and 4. whether the area contains sites or parts of sites suitable for limited recreational open space, cultural, or historical preservation purposes. In considering the four designation factors established in 5 376.80(2)(a), F.S., the statute does not require the City make a particular finding with respect to any of the four enumerated factors, only that they be "considered."6 The following sections discuss the statutory factors under � 376.80(2)(a), F.S., that the City must consider as applied to the Subject Property: 1. The proposed brownfield area warrants economic development and has a reasonable potential for such activities. The Subject Pmperty is an aging and underutilized municipal asset located at the center of a rapidly transitioning neighborhood undergoing massive redevelopment with higher density residential, retail, commercial, walkability, and It, options. Redevelopment and rehabilitation of these types ofprojects through Florida's Brownfields Program has been a 6 Contrast this discretion with the standard imposed on private parties seeking a Brownfield Area designation pursuant to § 376.80(2)(c), F.S. In such cases, a designation request may only be approved where the applicant "establishes" the applicable enumerated criteria: "[fJor designation of a brownfield area that is proposed by a person other than the local government, the local government with jurisdiction over the proposed brownfield area shall ... adopt a resolution to designate the brownfield area pursuant to paragraph (1)(c) if, at the public hearing to adopt the resolution, the person establishes all of the following ...." {00046312.DOCX. 1 } proven success in Miami -Dade County and the state of Florida by facilitating sustainable rehabilitation of existing public park land while also addressing environmental concerns. In addition to providing important recreation, conservation, and wellness benefits, parks have a widely acknowledged economic benefit, including but not limited to increasing residential property values and making a community more attractive to creation of new businesses and expansion of existing businesses. Numerous studies over a period of decades have conclusively linked the expansion and/or renewal of parks and park systems to key economic metrics. A 2018 article by the National Recreation and Park Association titled, `Promoting Parks and Recreation's Role in Economic Development" makes this very point by exploring key indicators of economic benefit, enhanced property values as well as attraction, retention, and expansion of businesses.' As the demand for land increases in Florida, encouraging the rehabilitation of existing parks like the Subject Propery is essential and key to the continuedgrowth of the City. Not only does the proposed brownfield area have the reasonable potential for such activities, but the Project will result in significant economic productivity of the area. 191 SW' 12 intends to invest approximately }$3 million on park improvements at the Subject Property which will be spent in part on local labor, contractors, consultants, construction materials, and land and infrastructure improvements. This work will support up to 300 temporary construction jobs over the period of development. The construction workers will spend a portion of their salaries with local merchants who, in turn, will reinvest locally in their respective businesses, as well as the businesses of other local merchants. 2. The proposed area to be designated represents a reasonably focused approach and is not overly large in geographic coverage. The proposed area to be designated represents a carefully focused approach that consists only of the parcels occupied by Southside Park and the First Miami High School that will be subject to rehabilitation and improvement. The City's previous attempt at designation of the Su ject Proper0 as a brownfield area was tied to several other public parks located across the City. In contrast, the area proposed for designation here consists of only the parcels that will be rehabilitated for the Project. Further, as reflected in Table 1 below, approximately 24% of designated brownfield areas in Florida are between 0 and 5 acres in size with the majority of brownfield areas covering even greater areas. The 1.5-acre size of the Subject Property falls squarely within this range and is comparable to similarly situated brownfield areas in the state. Table 1 - Analysis of Designated Brownfield Areas in Florida by Acreage Range (Based on FDEP Brownfield Area Monthly Status Report Dated April 23, 2021) Size range # of Brownfield Areas within Category % of All Brownfield Areas per Category < 1.0 acre 39 7.43% 1.1 - 5.0 acres 86 16.38% 5.1 - 10.0 acres 71 13.52% 10.1 - 50.0 acres 125 23.81% 50.1 -100.0 acres 29 5.52% 100.1 - 500.0 acres 71 13.52% 500.1 - 1,000.0 acres 37 7.05% 1,000.1 - 5,000.0 acres 53 10.10% 5,000.1 - 10,000.0 acres 8 1.52% >10,000.0 acres 6 1.14% Total 525 100.00% 7 The complete National Recreation and Park Association article is available here: https: / /www.nrpa.org/siteassets /nrpa-economic-development-report.pdf. {00046312.DOCX. 1 } 3. The proposed area has the potential to interest the private sector in participating in rehabilitation. The rehabilitation and park improvements planned for the Project will be performed solely by the private sector at no cost to the City. Specificaly, Section 120 of the PBA requires 191 SWI 12 to either contribute ,$3 million to the City for improvements or dincticonstruct improvements at an estimated cost of $$3 million with improvements being in substantial compliance with the concept plans found at Attachment C. Private sector involvement by 191 SWI 12 will reduce or eliminate the need for the City to devote its limited resources to repairing and replacing deteriorating engineering controls at the Subject Properly while also supporting private sector jobs in the continued assessment, remediation, and construction of improvements at this municipal asset. According, not only does the proposed area have the potential to interest the private sector in participating in the rehabilitation of the Subject Properly, but the private sector will be directly funding and implementing the planned improvements to Southside Park for the pub&'s use. 4. The proposed area contains land suitable for limited recreational open space, cultural, and historical preservation purposes. The Subject Property contains both a public park and a designated historic site, the First Miami High School. Pursuant to section 12(g) of the PBA, the Subject Property, including Southside Park and the First Miami High School, will remain a public park owned by the City for use by its residents and visitors. According, the proposed area to be designated consists exclusively of land suitable for recreational open space, cultural, and historical preservation purposes. C. Adoption of a Resolution. Florida Statutes � 376.80(1)(c)2 provides that, "[t]he brownfield area designation must be carried out by a resolution adopted by the jurisdictional local government, which includes a map adequate to clearly delineate exactly which parcels are to be included in the brownfield area or alternatively a less -detailed map accompanied by a detailed legal description of the brownfield area. For municipalities, the governing body shall adopt the resolution in accordance with the procedures outlined in s. 166.041, except that the procedures for the public hearings on the proposed resolution must be in the form established in s. 166.041(3)(c)2. For counties, the governing body shall adopt the resolution in accordance with the procedures outlined in s. 125.66, except that the procedures for the public hearings on the proposed resolution shall be in the form established in s. 125.66(4) (b)." WIN respect to the Subject Property, g 376.80(l)(c�2 of the Act directs municipalities to follow to prrr�cess set forth at 9 166.041(3)(c)2, ES.. This requires two advertisedpublic hearings with one of the two public hearings held after 5p.m. on a weekday unless the City Commission, by a majority plus one vote, elects to conduct that hearing at another time of day. The first public hearing shall be held at least 7 days after the day the first advertisement is published. The second hearing shall be held at least 10 days after the first hearing and shall be advertised at least S days prior to the public hearing. III. Subject Property Meets the Definition of Brownfield Site Section 376.79(4), F.S., defines "brownfield site" to mean ". . . real property, the expansion, redevelopment, or reuse of which may be complicated by actual or perceived environmental contamination." The facts here clearly reflect that the Subject Property falls within the definition of the term "brownfield site" in that actual contamination is present in soil and groundwater associated with the historical use of the area now occupied by the park for waste dumping. Specifically, a 2014 Site Assessment Report ("SAR") prepared by the City and submitted to Miami -Dade County Department of Regulatory and Economic Resources, Division of Environmental Resources Management ("DERM'� documented solid waste buried beneath the Subject Property as well as soil contaminants above Soil Cleanup Target Levels established in Rule 62-777, Florida Administrative Code ("F.A.C.") including arsenic, barium, copper, lead, benzo(a)pyrene, polycyclic aromatic hydrocarbons, and dioxins. Subsequent groundwater assessment conducted by the City in 2014 documented arsenic and antimony above the Groundwater Cleanup Target Levels established in Rule 62-777, F.A.C. {00046312.DOCX. 1 } The City addressed the soil and groundwater impacts at the Subject Property through groundwater monitoring and the installation of engineering controls to prevent direct exposure to contaminated media. These engineering controls consist of a combination of one foot of clean fill placed above a high -visibility geotextile fabric liner, one foot of clean fill with 2.5 inches of bonded rubber mulch around trees, and impervious surfaces including concrete pavement and asphalt surfaces. However, recent engineering control inspections conducted by the City and reported to DERM have shown the gradual deterioration and erosion of engineering control surfaces.8 The presence of soil and groundwater contamination at the Subject Property significantly complicates the park improvements planned by 191 SW 12 as contaminated soil and groundwater beneath the deteriorating engineering controls must be properly managed and monitored throughout the improvement process. Through the Project, 191 SW 12 will also be constructing new protective engineering controls to replace the existing deteriorated surfaces. The risk associated with construction on a contaminated site is significant but is exactly the type of risk that Florida's Brownfields Program is designed to mitigate. Accordingly, this designation, if approved, will allow 191 SW 12 to access limited but important state -based legal and economic incentives to help underwrite any unanticipated and unbudgeted costs associated with managing the environmental risk. In this sense, the designation will not only play a critical role in the successful improvement of the City's Southside Park, but also in the larger revitalization efforts for this rapidly growing area of the City. Based on all the foregoing, the Subject Property clearly falls within the definition of "brownfield site" as set forth in � 376.79(4), F.S. IV. Conclusion 191 SW 12 has demonstrated that the Subject Property meets the definition of a "brownfield site" and that a brownfield area designation will greatly benefit the City; the City's businesses, taxpayers, and residents; and the project developer by lowering the cost and limiting the considerable legal and regulatory risk associated with cleanup and improvement. Accordingly, on consideration of the four designation factors at 5 376.80(2)(a), F.S., designation of the Subject Property as a Brownfield Area pursuant to 5 376.80(2)(a), F.S., of Florida's Brownfield Redevelopment Act is appropriate. 8 In a comment letter dated May 19, 2021, DERM reiterated its requirement that erosion of engineering controls at the Subject Property be corrected to avoid further enforcement action. {00046312.DOCX. 1 } Attachment A {00011878.00cx. 11 Select Year: 2020 v Eil The 202o Florida Statutes Title XXVII I Chapter 376 View Entire NATURAL RESOURCES; CONSERVATION, POLLUTANT DISCHARGE PREVENTION Chapter RECLAMATION, AND USE AND REMOVAL 376.80 Brownfield program administration process.— (1) The following general procedures apply to brownfield designations: (a) The local government with jurisdiction over a proposed brownfield area shall designate such area pursuant to this section. (b) For a brownfield area designation proposed by: 1. The jurisdictional local government, the designation criteria under paragraph (2)(a) apply, except if the local government proposes to designate as a brownfield area a specified redevelopment area as provided in paragraph (2) (b). 2. Any person, other than a governmental entity, including, but not limited to, individuals, corporations, partnerships, limited liability companies, community -based organizations, or not -for -profit corporations, the designation criteria under paragraph (2)(c) apply. (c) Except as otherwise provided, the following provisions apply to all proposed brownfield area designations: 1. Notification to department following adoption. —A local government with jurisdiction over the brownfield area must notify the department, and, if applicable, the local pollution control program under s. 403.182, of its decision to designate a brownfield area for rehabilitation for the purposes of ss. 376.77-376.86. The notification must include a resolution adopted by the local government body. The local government shall notify the department, and, if applicable, the local pollution control program under s. 403.182, of the designation within 30 days after adoption of the resolution. 2. Resolution adoption. —The brownfield area designation must be carried out by a resolution adopted by the jurisdictional local government, which includes a map adequate to clearly delineate exactly which parcels are to be included in the brownfield area or alternatively a less -detailed map accompanied by a detailed legal description of the brownfield area. For municipalities, the governing body shall adopt the resolution in accordance with the procedures outlined in s. 166.041, except that the procedures for the public hearings on the proposed resolution must be in the form established in s. 166.041(3)(c)2. For counties, the governing body shall adopt the resolution in accordance with the procedures outlined in s. 125.66, except that the procedures for the public hearings on the proposed resolution shall be in the form established in s. 125.66(4)(b). 3. Right to be removed from proposed brownfield area. —If a property owner within the area proposed for designation by the local government requests in writing to have his or her property removed from the proposed designation, the local government shall grant the request. 4. Notice and public hearing requirements for designation of a proposed brownfield area outside a redevelopment area or by a nongovernmental entity. Compliance with the following provisions is required before designation of a proposed brownfield area under paragraph (2)(a) or paragraph (2)(c): a. At least one of the required public hearings shall be conducted as closely as is reasonably practicable to the area to be designated to provide an opportunity for public input on the size of the area, the objectives for rehabilitation, job opportunities and economic developments anticipated, neighborhood residents' considerations, and other relevant local concerns. b. Notice of a public hearing must be made in a newspaper of general circulation in the area, must be made in ethnic newspapers or local community bulletins, must be posted in the affected area, and must be announced at a scheduled meeting of the local governing body before the actual public hearing. (2)(a) Local government -proposed brownfield area designation outside specified redevelopment areas. —If a local government proposes to designate a brownfield area that is outside a community redevelopment area, enterprise zone, empowerment zone, closed military base, or designated brownfield pilot project area, the local government shall provide notice, adopt the resolution, and conduct public hearings pursuant to paragraph (1)(c). At a public hearing to designate the proposed brownfield area, the local government must consider: 1. Whether the brownfield area warrants economic development and has a reasonable potential for such activities; 2. Whether the proposed area to be designated represents a reasonably focused approach and is not overly large in geographic coverage; 3. Whether the area has potential to interest the private sector in participating in rehabilitation; and 4. Whether the area contains sites or parts of sites suitable for limited recreational open space, cultural, or historical preservation purposes. (b) Local government -proposed brownfield area designation within specified redevelopment areas. —Paragraph (a) does not apply to a proposed brownfield area if the local government proposes to designate the brownfield area inside a community redevelopment area, enterprise zone, empowerment zone, closed military base, or designated brownfield pilot project area and the local government complies with paragraph (1)(c). (c) Brownfield area designation proposed by persons other than a governmental entity. —For designation of a brownfield area that is proposed by a person other than the local government, the local government with jurisdiction over the proposed brownfield area shall provide notice and adopt a resolution to designate the brownfield area pursuant to paragraph (1)(c) if, at the public hearing to adopt the resolution, the person establishes all of the following: 1. A person who owns or controls a potential brownfield site is requesting the designation and has agreed to rehabilitate and redevelop the brownfield site. 2. The rehabilitation and redevelopment of the proposed brownfield site will result in economic productivity of the area, along with the creation of at least 5 new permanent jobs at the brownfield site that are full-time equivalent positions not associated with the implementation of the brownfield site rehabilitation agreement and that are not associated with redevelopment project demolition or construction activities pursuant to the redevelopment of the proposed brownfield site or area. However, the job creation requirement does not apply to the rehabilitation and redevelopment of a brownfield site that will provide affordable housing as defined in s. 420.0004 or the creation of recreational areas, conservation areas, or parks. 3. The redevelopment of the proposed brownfield site is consistent with the local comprehensive plan and is a permittable use under the applicable local land development regulations. 4. Notice of the proposed rehabilitation of the brownfield area has been provided to neighbors and nearby residents of the proposed area to be designated pursuant to paragraph (1)(c), and the person proposing the area for designation has afforded to those receiving notice the opportunity for comments and suggestions about rehabilitation. Notice pursuant to this subparagraph must be posted in the affected area. 5. The person proposing the area for designation has provided reasonable assurance that he or she has sufficient financial resources to implement and complete the rehabilitation agreement and redevelopment of the brownfield site. (d) Negotiation of brownfield site rehabilitation agreement. —The designation of a brownfield area and the identification of a person responsible for brownfield site rehabilitation simply entitles the identified person to negotiate a brownfield site rehabilitation agreement with the department or approved local pollution control program. (3) When there is a person responsible for brownfield site rehabilitation, the local government must notify the department of the identity of that person. If the agency or person who will be responsible for the coordination changes during the approval process specified in subsections (4), (5), and (6), the department or the affected approved local pollution control program must notify the affected local government when the change occurs. (4) Local governments or persons responsible for rehabilitation and redevelopment of brownfield areas must establish an advisory committee or use an existing advisory committee that has formally expressed its intent to address redevelopment of the specific brownfield area for the purpose of improving public participation and receiving public comments on rehabilitation and redevelopment of the brownfield area, future land use, local employment opportunities, community safety, and environmental justice. Such advisory committee should include residents within or adjacent to the brownfield area, businesses operating within the brownfield area, and others deemed appropriate. The person responsible for brownfield site rehabilitation must notify the advisory committee of the intent to rehabilitate and redevelop the site before executing the brownfield site rehabilitation agreement, and provide the committee with a copy of the draft plan for site rehabilitation which addresses elements required by subsection (5). This includes disclosing potential reuse of the property as well as site rehabilitation activities, if any, to be performed. The advisory committee shall review any proposed redevelopment agreements prepared pursuant to paragraph (5)(i) and provide comments, if appropriate, to the board of the local government with jurisdiction over the brownfield area. The advisory committee must receive a copy of the executed brownfield site rehabilitation agreement. When the person responsible for brownfield site rehabilitation submits a site assessment report or the technical document containing the proposed course of action following site assessment to the department or the local pollution control program for review, the person responsible for brownfield site rehabilitation must hold a meeting or attend a regularly scheduled meeting to inform the advisory committee of the findings and recommendations in the site assessment report or the technical document containing the proposed course of action following site assessment. (5) The person responsible for brownfield site rehabilitation must enter into a brownfield site rehabilitation agreement with the department or an approved local pollution control program if actual contamination exists at the brownfield site. The brownfield site rehabilitation agreement must include: (a) A brownfield site rehabilitation schedule, including milestones for completion of site rehabilitation tasks and submittal of technical reports and rehabilitation plans as agreed upon by the parties to the agreement. (b) A commitment to conduct site rehabilitation activities under the observation of professional engineers or geologists who are registered in accordance with the requirements of chapter 471 or chapter 492, respectively. Submittals provided by the person responsible for brownfield site rehabilitation must be signed and sealed by a professional engineer registered under chapter 471, or a professional geologist registered under chapter 492, certifying that the submittal and associated work comply with the law and rules of the department and those governing the profession. In addition, upon completion of the approved remedial action, the department shall require a professional engineer registered under chapter 471 or a professional geologist registered under chapter 492 to certify that the corrective action was, to the best of his or her knowledge, completed in substantial conformance with the plans and specifications approved by the department. (c) A commitment to conduct site rehabilitation in accordance with department quality assurance rules. (d) A commitment to conduct site rehabilitation consistent with state, federal, and local laws and consistent with the brownfield site contamination cleanup criteria in s. 376.81, including any applicable requirements for risk -based corrective action. (e) Timeframes for the department's review of technical reports and plans submitted in accordance with the agreement. The department shall make every effort to adhere to established agency goals for reasonable timeframes for review of such documents. (f) A commitment to secure site access for the department or approved local pollution control program to all brownfield sites within the eligible brownfield area for activities associated with site rehabilitation. (g) Other provisions that the person responsible for brownfield site rehabilitation and the department agree upon, that are consistent with ss. 376.77-376.86, and that will improve or enhance the brownfield site rehabilitation process. (h) A commitment to consider appropriate pollution prevention measures and to implement those that the person responsible for brownfield site rehabilitation determines are reasonable and cost-effective, taking into account the ultimate use or uses of the brownfield site. Such measures may include improved inventory or production controls and procedures for preventing loss, spills, and leaks of hazardous waste and materials, and include goals for the reduction of releases of toxic materials. (i) Certification that the person responsible for brownfield site rehabilitation has consulted with the local government with jurisdiction over the brownfield area about the proposed redevelopment of the brownfield site, that the local government is in agreement with or approves the proposed redevelopment, and that the proposed redevelopment complies with applicable laws and requirements for such redevelopment. Certification shall be accomplished by referencing or providing a legally recorded or officially approved land use or site plan, a development order or approval, a building permit, or a similar official document issued by the local government that reflects the local government's approval of proposed redevelopment of the brownfield site; providing a copy of the local government resolution designating the brownfield area that contains the proposed redevelopment of the brownfield site; or providing a letter from the local government that describes the proposed redevelopment of the brownfield site and expresses the local government's agreement with or approval of the proposed redevelopment. (6) Any contractor performing site rehabilitation program tasks must demonstrate to the department that the contractor: (a) Meets all certification and license requirements imposed by law; and (b) Will conduct sample collection and analyses pursuant to department rules. (7) During the cleanup process, if the department or local program fails to complete review of a technical document within the timeframe specified in the brownfield site rehabilitation agreement, the person responsible for brownfield site rehabilitation may proceed to the next site rehabilitation task. However, the person responsible for brownfield site rehabilitation does so at its own risk and may be required by the department or local program to complete additional work on a previous task. Exceptions to this subsection include requests for "no further action," "monitoring only proposals," and feasibility studies, which must be approved prior to implementation. (8) If the person responsible for brownfield site rehabilitation fails to comply with the brownfield site rehabilitation agreement, the department shall allow 90 days for the person responsible for brownfield site rehabilitation to return to compliance with the provision at issue or to negotiate a modification to the brownfield site rehabilitation agreement with the department for good cause shown. If an imminent hazard exists, the 90-day grace period shall not apply. If the project is not returned to compliance with the brownfield site rehabilitation agreement and a modification cannot be negotiated, the immunity provisions of s. 376.82 are revoked. (9) The department is specifically authorized and encouraged to enter into delegation agreements with local pollution control programs approved under s. 403.182 to administer the brownfield program within their jurisdictions, thereby maximizing the integration of this process with the other local development processes needed to facilitate redevelopment of a brownfield area. When determining whether a delegation pursuant to this subsection of all or part of the brownfield program to a local pollution control program is appropriate, the department shall consider the following. The local pollution control program must: (a) Have and maintain the administrative organization, staff, and financial and other resources to effectively and efficiently implement and enforce the statutory requirements of the delegated brownfield program; and (b) Provide for the enforcement of the requirements of the delegated brownfield program, and for notice and a right to challenge governmental action, by appropriate administrative and judicial process, which shall be specified in the delegation. The local pollution control program shall not be delegated authority to take action on or to make decisions regarding any brownfield site on land owned by the local government. Any delegation agreement entered into pursuant to this subsection shall contain such terms and conditions necessary to ensure the effective and efficient administration and enforcement of the statutory requirements of the brownfield program as established by the act and the relevant rules and other criteria of the department. (10) Local governments are encouraged to use the full range of economic and tax incentives available to facilitate and promote the rehabilitation of brownfield areas, to help eliminate the public health and environmental hazards, and to promote the creation of jobs and economic development in these previously run-down, blighted, and underutilized areas. (11)(a) The Legislature finds and declares that: 1. Brownfield site rehabilitation and redevelopment can improve the overall health of a community and the quality of life for communities, including for individuals living in such communities. 2. The community health benefits of brownfield site rehabilitation and redevelopment should be better measured in order to achieve the legislative intent as expressed in s. 376.78. 3. There is a need in this state to define and better measure the community health benefits of brownfield site rehabilitation and redevelopment. 4. Funding sources should be established to support efforts by the state and local governments, in collaboration with local health departments, community health providers, and nonprofit organizations, to evaluate the community health benefits of brownfield site rehabilitation and redevelopment. (b) Local governments may and are encouraged to evaluate the community health benefits and effects of brownfield site rehabilitation and redevelopment in connection with brownfield areas located within their jurisdictions. Factors that may be evaluated and monitored before and after brownfield site rehabilitation and redevelopment include, but are not limited to: 1. Health status, disease distribution, and quality of life measures regarding populations living in or around brownfield sites that have been rehabilitated and redeveloped. 2. Access to primary and other health care or health services for persons living in or around brownfield sites that have been rehabilitated and redeveloped. 3. Any new or increased access to open, green, park, or other recreational spaces that provide recreational opportunities for individuals living in or around brownfield sites that have been rehabilitated and redeveloped. 4. Other factors described in rules adopted by the Department of Environmental Protection or the Department of Health, as applicable. (c) The Department of Health may and is encouraged to assist local governments, in collaboration with local health departments, community health providers, and nonprofit organizations, in evaluating the community health benefits of brownfield site rehabilitation and redevelopment. (12) A local government that designates a brownfield area pursuant to this section is not required to use the term "brownfield area" within the name of the brownfield area designated by the local government. History.—s. 4, ch. 97-277; s. 3, ch. 98-75; s. 11, ch. 2000-317; s. 2, ch. 2004-40; s. 44, ch. 2005-2; s. 7, ch. 2006-291; s. 5, ch. 2008- 239; s. 2, ch. 2014-114. Copyright © 1995-2020 The Florida Legislature • Privacy Statement • Contact Us Attachment B {00011878.00cx. 11 PUBLIC BENEFIT AGREEMENT REGARDING CONSTRUCTION OF THE NEW FIRE :STATION NO.4 THIS PUBLIC BENEFIT AGREEMENT ("Agreement") is made this [ 3 day of Apra i L. , 2020, between 191 SW 12 Owner LLC, a Delaware limited liability company autAorized to transact business in Florida (-`Developer"), and the City of Miami, Florida, a municipal corporation and a political subdivision of the State of Florida (the "Cit-y") (Developer and the City are together referred to as the "Parties"). WITNESSETH WHEREAS, the City is the owner of property located at 1105, 1115, 1131, and 1133 SW 2 Avenue in Miami -Dade County, Florida, identified by the Miami -Dade County Property Appraiser (the -Property Appraiser") by Folio Nos. 0 1 -4138-051-0400, 01-4138-051:0410, 0I-4138-051- 0390, 01-4138-051-0420. and legally described in Exhibit "A" (collectively. the "Existing Fire Station Parcel"} on which the City currently operates City of Miami Fire Station No. 4 (the `Existing Fire Station"); and, WHEREAS, the Developer is the contract purchaser of the property located at 191 SW 12 Street in Miami -Dade County, Florida, identified by the Property Appraiser by Folio No. 01-4133- 051-0430 (the "191 SW 12 Street Parcel"), and legally described in Exhibit "B"; and WHEREAS, the Developer is the beneficial owner of the 19l SW 12 Street Parcel and will own the. 191 SW 12 Street Parcel following site plan approval for the Project and prior- to the commencement of construction; and WHEREAS, pursuant to City of Miami resolution No. R-17-03 30 adopted by the City of Miami Commission (the ­Cit►- Commission"), a true and correct copy of which is attached hereto as Exhibit C and by this reference made a part hereof, the City and Southside Place LLC, a Florida limited liability company ("Original Developer") entered into that certain Public Benefit Agreement Regarding Construction of the New Fire Station No. 4 dated as of February 15, 2018 (the ­2018 Public benefits Agreement"); and WHEREAS, pursuant to the 2018 Public Benefits Agreement the Originai Developer agreed to construct the New Fire Station (as hereinafter defined) and. upon completion, to convey the New Fire Station to the City for no compensation, for the creation of separate City and Original Developer parcels: and WHEREAS, by executing this Agreement subject expressly to prior review and approval by the City Commission, the 2018 Public Benefits Agreement will at such time be null and void and of no further effect as it will be concurrently replaced and superseded by this Agreement, and WHEREAS, Developer may also elect to acquire all of the right, title and interest of CS Brickell LLC, a Delaware limited liability company, in one or more contracts for the purchase of the properties located at 145 SW 12 Street, 155 SW 12 Street, and 165 SW 12 Street in Miami -Dade County. Florida, identified by the Property Appraiser as Folio Nos. 01-0208-050-1022, 01-0208- 050-1021, and 0 1 -0208-050-1020, as more particularly described in Exhibit D attached hereto and by this reference made a part hereof (collectively, the "121t' Street Parcels"), and WHEREAS, the Developer will promptly furnish to the City Manager and the Director- of the Department of Real Estate and Asset Management ("DREAM") executed copies of purchase and sale agreements for any of these properties for which it enters into agreements to purchase: and WHEREAS, Developer intends to cause the 191 SW 12 Street Parcel and the Existing Fire Station Parcel {.collectively, the " _Proiect Site'"} and, if acquired by Developer, the 12"' Street Parcels (collectively, the. "Expanded Proiect Site"'; and the Project Site or Expanded Project Site. as applicable, the -Block 85 Asseniblag -) to be developed as part of a mixed use: development in substantial accordance with the Project Plans (as hereinafter defined); and WHEREAS, the City owns the First Miami High School, a City -designated historic resource located at 142 SW l I Street identified by the Property Appraiser as Folio No. 01-4138-051-0380 (the "First Miami High School''), as welt as park land located at 140 SW I I Street identified by the Property Appraiser as 01-0208-050-1010 (the "Soauthside Park"), and WHEREAS, pursuant to (1) that certain City of Miami Resolution No, R-613-18 adopted by the City Commission on ,luly 13, 2017, a true and correct copy of which is attached hereto as Exhibit E and by this reference made a part hereof. and (ii) that certain Resolution No. 18-66 of the Beard of County Commissioners of Miarni-Dade County (the "County") adopted on June 5, 2018, a true and correct copy of which is attached hereto as Exhibit F and by this reference made a part hereof, the City and the County authorized the execution of that certain Interlocal Agreement, dated as of August ?, 2018, a true and correct copy of which is attached hereto as Exhibit G and by this reference made a part hereof (the "Interlocal Agreement"): and WHEREAS, pursuant to the Interlocal Agreement, the County's Rapid Transit Zone (the "RTZ"') was expanded to include the Brickell Station Subzone (the "Brickell Station Subzone"'). which includes all of the property lying situate in ,Miami -Dade County farming part of Block 85 South of the MIAMI HEIGHTS SUBDIVISION, according to the. Plat thereof, as recorded in Plat Book 5, Page 29 of the Public Records of Miami -Dade County, Florida ("Block 85"): and WHEREAS, pursuant to the Interlocal Agreement and Chapter 33C of the County's Code of Ordinances (collectively, the -Development Re ulations"), as amended, subsequent to the 2018 Public Benefits Agreement, the County now has exclusive jurisdiction over Block 85 with respect to land use and zoning matters; and WHEREAS, the Brickell Station Subzone is included within a Downtown Regional Metropolitan Urban Center on the County"s Comprehensive Development Master Plan ('�DMP'") Futi ire Land Use Map (" FLUM"), and WHEREAS, Block 85 is currently underutilized in terms of development rights in that it consists of a park, vacant and underdeveloped lots, and an aging fire station; and WHEREAS, in recent years the Brickell area has become known for its sweeping cityscape, world class architecture, dense population and growing urban environment; and WHEREAS, the Existing Fire Station is no longer adequate to meet the needs of its surrounding community within the City; and 2 WHEREAS, the Existing Fire Station and the other current uses within Block. 85 are inconsistent with the goals and vision of the City and County to provide for joint private and public development opportunities, inciuding essential public amenities, retail services, employment centers, housing and institutional attractions in convenient proximity to rapid transit stations, all as more particularly described in the Interlocal Agreement; and WHEREAS, the City has identified a need for the creation of new turn -key, approximately 31.708 square foot, world class/ first class. state of the art fire station, with an additional One Hundred Thousand Dollars (SI00,000) allowance (part of the Additional NFS Cash Contribution (as hereinafter defined)) for FFE (e.g.. kitchen equipment, but will exclude: fire -lighting equipment) with a tnezzarune level and a new workout area (the "Nero Fire Station") that shall permit the larger new fire -rescue: trucks the City will be obtaining, which New Fire Station shall be constructed for the exclusive use and benefit of the City's Fire Department and in compliance with the Development Rt,,ulations. Florida. Building Code, the National Fire and Protection Agency, and any and all other laws, rules, or regulations applicable to the terms of this Agreement ('-Applicable Laws").- and WHEREAS, consistent with the goals of the Interlocal Agreement and the Development Regulations, the City and Developer have entered into this Agreernent for purposes of providing for the redevelopment of Block 85 with a new, state of the: ail high density, mixed use, transit -oriented urban development providing much needed retail uses and amenities for the BrickelI Station Subzone and surrounding urban areas (collectively, the -Project"). and WHEREAS, subject to the terms and conditions of this Agreement, Developer has agreed to (1) construct the Ne�v Fire Station at its expense at an estimated cost anticipated to be not less than Eight Million Dollars (58,000,000) and (11) make a Two Million and Two Hundred Thousand Dollars ($2,200,000) cash contribution to be implemented by the City as an additional public benefits contribution (the "Additional NFS Cash Contribution"), which Additional NSF- Cash Contribution is anticipated to be expended as follows: (a) one million and one hundred thousand dollars (S 1,100.000) of which it is anticipated shall be allocated for the purchase one (1) ladder truck. one (1) engine truck, two (2) fire -rescue trucks, and two (2) Ford trucks in connection with the operation of the New Fire Station; (b) One Million Dollars ($ 1,000,000.00) of which it is anticipated shall be allocated to other Fire Department -related expenses; and (c) One Hundred Thousand Dollars (SI00,000) of which it is anticipated shall be allocated to the purchase of furnishing, fixtures and equipment (.`FFE") for the New Fire Station; and WHEREAS, as a condition of the approval of the Project, Developer has agreed that the Project will include thirty five (35) designated parking spaces conveyed to the City in fee simple and available for exclusive use by the City in connection with the operation of the New Fire Station and ninety (90) parking spaces available to Miami Parking Authority, at no cost, for- park use (the "NFS Parking Spaces"), and WHEREAS, in order- to provide for a development of sufficient scale and with sufficient amenities to satisfy the requirements of the Interlocal Agreement, the City has agreed to transfer certain development density rights associated with the First Miami High School and Southside Park (collectively, the "CitN! Property-) to the Block 85 Assemblage in exchange for the TDR Payment (as hereinafter defined): and 3 WHEREAS, upon completion of the construction of the New Fire Station and conveyance ofthe New Fire Station Parcel (as hereinafter defined) to the City, the City Shall convey the Existllrg Fire Station Parcel to Developer or its designee in fee simple; and WHEREAS, the conveyance of the Existing Fire Station Parcel to Developer, or Developer's designee, in connection with the construction of the New Fire Station is exempt from the competitive bidding process and other requirements because the Existing Fire Station Parcel is being conveyed to implement projects of a governmental agency or instrumentality: and WHEREAS, the construction of the: Project will create certain recurring fiscal benefits for the City's tax base as well as much needed temporary and permanent jobs and housing; and WHEREAS, the City and Developer wish to provide for the authorization for the construction of the Project in accordance with the requirements of Section 33C-1 D of the Miami - Dade County Code of Ordinances (the "Count' Code") and the CDMP. and WHEREAS, the execution and delivery of this Agreement on the terms and conditions set forth below has been authori2ed by all requisite action ofthe members and/or managers of Developer. NO%V THEREF❑RE, in consideration of the mutual covenants contained herein, it is hereby understood and agreed: Y Section 1. Recitals; Consideration. The recitals and findings contained in the Preamble or Whereas Clauses to this Section are adopted by reference and incorporated as if fully set forth in this Section. The Parties hereby agree that the consideration and obligations recited and provided for under this Agreement constitute substantial benefits to both Parties and thus adequate consideration for this Agreement. Section 2. Rules of Legal. Construction. For all purposes of this Agreement, unless otherwise expressly provided: (a) A defined term has the meaning assigned to it; (b) Words in the singular include the plural, and words in plural include the singular; (c) A pronoun in one gender includes and applies to other genders as well. (d) The terms "hereunder", "herein "hereof", "hereto- and such similar terns shall refer to the instant Agreement in its entirety and not to individual sections or articles; (e) The Parties hereto agree that this Agreement shall not be more strictly construed against either - the City or Developer, as all parties are drafters of this Agreement, and (f) The recitals are true and correct and are incorporated into and made a part of this Agreement, The attached exhibits shall be deemed adopted and incorporated into the Agreement, provided however, that this Agreement shall be deemed to control in the event of a conflict between the attaelunents and this Agreement. Section 3. Definitions. Capitalized teams shall have the meaning as set forth in this Agreement. 4 "County" means Miarni-Dade County, a political subdivision of the State of Florida "Development Permits}" includes any building permit, zoning permit, subdivision approval, rezoning, certification, special exception, variance, or any other official action of local government having the effect of permitting the development of land. "Final Site Platt approval" shall mean the final (non -appealable) approval of site plans for the Block 85 Assemblage, substantially in compliance with the Project Plans and the Development Regulations. "NFS and Park Improvement Activities" means Developer's construction of the New Fire Station and the improvements to Southside Park pursuant Section 12(f) hereof. "TCO" shall mean a Temporary Certificate of Occupancy issued by the Miami -Dade County Department of Regulatory and Economic Resources Department, Section 4. Purposes, The Parties have entered into this Agreement for purposes of setting forth their agreements with respect to: (a) the terms and conditions of the agreements between the City and Developer with respect to the construction of the New Fire Station and the NFS Parking Spaces for the City and the exchange of the Existing Fire Station Parcel for the New Fire Station, (b) the release of Cite New Fire Station Parcel from the operation and effect of any ground lease and any mortgages placed upon the privately owned Block 85 Assemblage in connection with the construction of the Project, (c) the easements, covenants, conditions and restrictions which will ,govern the Project which shall be provided for in the Shared Facilities Agreement, (d) certain additional public benefits to be provided by Developer- to the City, including without limitation, the payment of the Additional NFS Cash Contribution and agreements to undertake other construction obligations and exercise commercially reasonable efforts to create additional business and employment opportunities for residents of the City of Miami and local businesses involved in the construction industry and (e) the commitments of the City to Developer and the Project, including obligations with respect to the transfer of development density rights associated with the City Property and the cooperation of the City with Developer in connection with Developer's execution of its development plan, all in consideration cif the agreements and undertakings of Developer contained in this Agreement. In the event that Developer does not obtain ownership and control of the 191 S W 12 Street Parcel within eighteen (18) months of the Effective Date (subject in all events to such extension of such tirne as may be required by reason of Force Majeure (as defined below)), this Agreement shall be automatically terminated. Section 5. Affected Property. This Agreement is not intended to affect any property other than the land within Block 85. Section 5. Term of Agreement, Effective Date And Binding_ Effect. This Agreement shall became effective on the date on which the City Manager executes this Agreement with prior approval from the City Commission (the "Effective Date„) and shall constitute a covenant running with the land that shall be binding upon, and inure to the benefit of, Developer, the City and their respective successors, assigns, affiliates and subsidiaries (if any), heirs, legal representatives, and personal representatives. This Agreement shall have a teen of thirty (30) years from the Effective Date (the '`Term") and shall be recorded in the public records of Miami -Dade County by Developer and filed with the: City Clerk. The Developershall furnish to the City a certified copy ofthe recorded Agreement within twenty (20) days of it being recorded. The Term oCthis Agreement may only be amended or released by the written agreernent of the Parties, provided that if the Project. or any portion thereof, is submitted to condominium ownership pursuant to the Florida Condominium Act,. Chapter 718, Florida Statutes (2019), then the condominitun association(s) in wlxich the owners of condominiurn units shall be members shall be the proper party or parties to execute any such amendment or release with respect to any portion of the Project submitted to condominium ownership. Any amendment or release must be in a form reasonably acceptable to the City and reasonably approved as to legal form by the City Attorney. Notwithstanding anything to the contrary contained in this Section 6, in the event that the Project or any portion thereof is submitted to a condominium farm of ownership, the City shall be responsible solely for payment (if the City Operating Expenses (as defined herein) and the City shall have no obligation to pay any assessments or contribute any costs other than the City Operating Expenses. Section 7. Site Plan. The Project Site shall be developed substantially in compliance with plans, including, specifically, conceptual plans prepared by SHOP Architects PC, attached hereto as Exhibit H. The Foregoing plans shall be coltectively referred to in this Agreement as the "Proiect Plans' and are described in detail by plans on file with the City Clerk and are deemed to be incorporated by reference. "Substantially in compliance," for purposes of this Agreement, shall be determined by the County Planning and Zoning Director, or designee, in accordance with Section 33-310. I .A,I of the County Code. Section 8. Zoning Permitted Development Uses and Building Intensities. The parties acknowledge that Block 85 is located within the Miami -Dade County Rapid Transit Zone, specifically the BrickelI Station Subzone, and the City has agreed, for purposes and In the content of this Agreement, to grant the County exclusive [and use, zoning, alcohol beverage law, and building permitting authority with respect to the Project in accordance with the terms and conditions of the Interlocal Agreement and the Development Regulations. Accordingly, Developer shall be permitted to construct up to 500 multifamily residential units, per acre of land. Without limiting the generality of the foregoing, by virtue of its execution of the Interiocal Agreement, the City has determined, to the best of its present knowledge, information and belief, that the uses, intensities, and densities of development permitted by the Development Regulations are consistent with the City's Charter, Comprehensive Plan, and Zoning Ordinance. Section 9. Future Development. Future development of the Black 85 Assemblage shall be permitted subject only to compliance with the requirements of the Development Regulations. The criteria to be used by the County in determining whether- future development shall be approved shall be consistency with the CDMP, this Agreement and the Development Regulations, and the CDMP. this Agreement, and the Deve[opment Regulations shall govern development of the Project for the duration of this Agreement. Any modifications to the Project Plans or this Agreement shall be approved in accordance with the Development Regulations, The City shall support and cooperate with Developer in securing development approvals from the County pursuant to Section 33C-10 of the County Code to effectuate the terms of this Agreement and the transfer of development density through a Covenant in Lieu of [Unity of Title. 6 Section 10. Construction of New Fire Station Parcel and Mixed -Use Pro'ect and Exchange of Properties. The previsions of this Section 10 shall govern the obligations of the Parties in connection with the construction of the New Fire Station and the exchange of the Existing Fire Station Parcel for the New Fire Station Parcel. (a) Construction of New Fire Station and ParkinLy Garage. (1) Developer shall construct the New Fire Station in accordance with the Approved NFS Plans (as hereinafter defined) and. except as othenvise expressly provided herein, at Developer's sole cost and expense, estimated at approximately Eight Million Dollars (S8,000,000). Notwithstanding anything to the contraay contained herein, the City shall be solely responsible for payment to the Developer of any increases in the costs of construction for the New Fire Station that result from any (A) Proposed Plan Changes (as hereinafter defined) to the Approved NFS Plans requested by the City. provided that (i) the amount due from the City in connection with any Proposed Plan Changes shall not exceed the total actual costs charted to the Developer by the general contractor and (ii) the general contractor shall not be permitted to charge greater than market value for such Proposed Plan Changes or (B) other acts or omissions ofthe City as owner, including without limitation, any delays by the City in its approval of items that require the City's approval as owner. (2) Developer shall cause final plans and specifications for the New Fire Station to be developed based on the Project Plans, or as otherwise mutually agreed to by the Parties. The final plans for the New Fire Station shall be subject to the City's prior review and approval. such approval not to be utu•easonably withheld. conditioned or delayed. Once such final plans have been approved, the City and Developer shall each execute a certificate conf nning the approval of such final plans (the "Approved NFS Plans"). (3) Developer shall make the Additional NFS Cash Contribution, to be implemented by the City. which Additional NSF- Cash Contribution is anticipated to be expended as follows: (a) One Million and One Hundred Thousand Dollars ($1, l00,000) of which it is anticipated shall be allocated for the purchase one (1) ladder truck, one (1) engine Bieck, two (2) lire -rescue trucks, and two (2) Ford trucks in connection with the operation of the New Fire Station; (b) One Million Dollars (S 1,000.(00) of which it is anticipated shall be allocated to other Fire Department -related expenses; and (c) One Hundred Thousand Dollars ($100,000) of which it is anticipated shall be allocated to the purchase of furnishing, fixtures and equipment ("FFE") for the New Fire Station. The City's Fire Department shall have absolute discretion regarding the ultimate allocation of the Additional NFS Cash Contribution, N Parking Garage. h (1) The parkin; garage For the Project (the "Parking Garage") shall be constructed by Developer at its sole cost and expense in substantial accordance with the. Approved Parking Garage Plans (as hereinafter defined). The final plans for the NFS Parking Spaces shall be subject to the City's prier review and approval. (?) The Parking Garage will include one hundred twenty-five (135) parking spaces, the previously defined and described NFS Parking Spaces, available for exclusive use by the City in connection with the operation of tine New Fire Station and for park, use. (3) Developer- shall cause final plans and specifications for the NFS Parking Spaces to be developed based on the Project Plans, or as otherwise mutually agreed to by the. Parties. The final plans for the NFS Parking Spaces shall be subject to the City's prior review and approval, such approval not to be unreasonably withheld. conditioned or delayed, providing, however, that this will not preclude safety or design comments andjor comments dealing with the Applicable Laws and Development Regulations. Once such final plans have been approved, the City and Developer shall each execute a certificate conf mi1n- the approval of such final plans (the "A�praved Parking Garage flans"). (c) Proposer! Changes. Any material changes, modifications, amendments or substitutions to the Approved NFS Plans or Approved Parking Garage Plans ("Proposed Plan Changes"} may be made from time to time by written mutual agreement of the parties. Without limiting the generality of the foregoing, the City shall not unreasonably withhold, delay or condition its consent to any Proposed Plan Changes requested by Developer providing, however, that this will not preclude safety or design comments ana'or comments dealing with the Applicable Laws. Notwithstanding anything to the contrary contained herein, design chanties expressly required for compliance with the Developn-rent Regulations and Applicable Laws shall not require the City's approval and Developer shall be permitted to make such chanties to the extent that they achieve compliance but not beyond that without the City's consent. (d) Commencement of Construction. No later than the date that is eighteen months (19) from the date of Final Site Plan Approval, the. Developer shall commence construction of the New Fire Station and shall complete construction of the New Fire Station within thirty-six (36) months of commencement of construction, subject only to Fore Majeure. as further defined in Section 44. A TCO for the mixed -use tower (excluding the Parking Garage) shall not be issued prior to the issuance of the TCO for the New Fire Station. Construction shall comply vvith all Development Regulations and Applicable Laws, rules and regulations required to be complied with as part of the process of building permit issuance. Upon the issuance of a building permit for the New Fire Station, the City shall no lonf�er have access to the current parking area located at 1133 SW ? Avenue identified by County Folio No. 01-4133-05I-0420 for the Existing Fire Station. The Developer shall provide at its own cost and expense for nearby alternative temporary parkin;; for the Existing Fire Station until delivery of the New Fire Station and the NFS Parkin,, Spaces. (e) Temporary Staging and Parking Areas. During construction, the City shall make a portion of Southside Park, as City determines in its sole but reasonable discretion, available for temporary 8 parking and staging for construction activities associated with the Project as a whole. At any time during which Developer requires access and use of Southside Park and there are no on -going NFS and Park Improvement Activities being performed by Developer, such access and use of Southside: Park for parking and staging shall (a) be subject to a payment of Ten Thousand Dollars (S 10,000) per month and (b) not exceed eighteen (18) months unless Developer is diligently constructing the Project in good faith, in which case such use shall not exceed forty-two (42) months unless otherwise agreed to. in writing, by the City Manager. This includes providing: (i) alternate parking spaces for City employees of the Existing Fire Station, (ii) parking For contractors, subcontractors and their employees, and (iii) space for staging and storage of construction materials and equipment, NotwithstandinC. g the foregoing, the calculation of the eighteen (18 ) months described above shall be tolled and the S10,000 per month payment shall not be required during any period in which NFS and Park Improvement Activities are on -going. Developer agrees to preserve and maintain public access to, and use of, both the playground and the grounds surrounding the First Miami High School portions of Southside Park throughout the duration of the construction of the Project: provided. however, that Developer shall have the right to close such portions of Southside Park as may be necessary to facilitate construction of the Project and/or the improvements to Southside Park pursuant to Section 12(f) hereof. The temporary staging and parking area.shall be retained until the completion of the Project, and Developer shall not be required to tenninate its use of the same until a reasonable time has passed following the issuance of such TCO or TCOs as may be required for the occupancy of the entire Project. The Developer shall maintain the temporary parking and staging area in a safe and clean condition during the use specified herein and shall further be responsible to restore and return Southside Park to a condition that is better than or equal to the original condition prior to Developer's use. (#) New Fire Station Permttin Fees. The Developer shall be responsible for payment of any and all municipal or governmental fees frorn any jurisdiction having authority, including but not limited to City, County, State and Federal, related to any permits, certifications, development orders, inspections and approvals required for the development of the New Fire Station, including but not limited to fees for building permits, public works approvals, zoning approvals. Certificates of Use, Certificates of Occupancy. Department of Environmental Resource Management approvals and Miami -Dade County Water and Sewer Department approvals and agreements to provide water and sewer service:. The Developer shall also be responsible for all other permitting, municipal or governmental fees related to construction of the interior finishes and interior build -out and occupancy oFthe New Fire Station. The foregoing fees shall not be included in the Developer's cost to construct the New Fire Station and the NFS Parking Spaces. (g) NVater and Sewer Connection Charges and Utilities. The Developer at its sole cost and expense shal I (a) pay all water and sewer connection charges and (b} provide and construct all water and sewer infrastructure required to support the Project. (h) Ri lets of Access and Inspection. Developer shall have the right to enter upon and inspect the Existing Fire Station Parcel and otherwise conduct such tests and investigations as Developer deems necessary in connection with the development of the Existing Fire Station Parcel. The foregoing shall include. without limitation, water and soil sampling and other envirotunental inspections, obtaining surveys and geotechnical testing. The City shall grant to the Developer a general access easernent to enter upon the: Existing Fire Station Parcel in order to construct the New Fire Station. The Developer shall have the right to review and inspect title to the Existing Fire Station Parcel in order to determine its status. 9 (i) Delivery' of New Fire Station. Developer shall cause possession of the New Fire Station to be delivered, and title to the New Fire Station Parcel to be conveyed, to the City, on or before the date that is not less than thirty (30) days and not more than ninety (90) days after the substantial completion of the New Fire Station (the "Outside NFS Closing Date"). Title to the New Fire Station Parcel shall be conveyed by Developer to the City by Special Warranty Deed, subject only to easements, covenants, conditions and restrictions of record that (a) are common to the Block 85 Assentblaye. (b) do not contain any right of reverter, rights of reversion, or otherwise render title to the New Fire Station Parcel uninsurable or unmarketable and (c) shall not interfere with the construction or quiet enjoyment ( following the completion of construction of the Project) or operation of the New Fire Station, In that regard, the Parties acknowledL,e and agree that the -`New Fire Station Parcel" shall constitute a vertical subdivision of land which includes the New Fire Station. (j) Convevance of Existing Fire Station to Developer. The. City shall convey the Existing Fire Station Parcel, and deliver possession thereof, to Developer or Developer's designee simultaneously with the conveyance of title to the New Fire Station Parcel, and the delivery of possession thereof. from Developer to the City. Except for those restrictions otherwise specified in this Agreement and the lnterlocal Agreement, as applicable title to the Existing Fire Station Parcel shall be conveyed by the City to Developer by Special Warranty Deed, subject only to easements, covenants, conditions and restrictions of record that (a) are common to the Block 85 Assemblage, (b) do not render title to the Existing Fire Station Parcel uninsurable or unmarketable and (c ) shall not interfere with the construction of the Project as contemplated by the Project Plans. (k) a%Lng_Prorations and Atlinstments. On the date of the closing 4� of the exchange of the New Fire Station Parcel for the Existing Fire Station Parcel and the City's acceptance of the New Fire S tation (the "Closing Date"), (i) Developer shall make a payment to City in an amount equal to the Additional NFS Cash Contribution and (ii) closing expenses shall be allocated between the Parties and such additional prorations and adjustments shall be made between the Parties in accordance with local custom. (1) Snared Facilities Agreement. Developer- shall subject, or cause Developer's designee to subject. title to the Block 85 Assemblage to a Shared Facilities Agreement that will govern the rights and responsibilities of the Parties vis-a-vis one another as the owners of properties within the Block 85 (the "Shared Facilities Aareemeent"). At the time of closing,. the City shall execute any and all such additional docurnents as may be required in order to subject the Existing Fire Station Parcel to the Shared Facilities Agreement. subject to the reasonable review and approval of the City Manager and City Attorney, (m) lndeinnit}. The Developer- shall indemnify, defend (at its own cost and expense), and hold harmless the City and its departments, agencies. instrumentalities, officials and employees (collectively referred to as ""Indemnitees"), and each of their from and a-ainst all loss, costs, penalties, fines, damages, claims, expenses (including reasonable attorneys" fees) or liabilities (collectively referred to as "Liabilities") by reason of any injury to or death of any person or damage to or destruction or loss of any property arising out of, resulting from, or in connection with (i) the negligent performance or non-performance of the goods, design, labor. construction. materials, equipment, supplies services, or any performance or non-performance as contemplated by this Agreement (whether active or passive) of the Developer or its employees, contractors or subcontractors, consultants or other authorized agents and representatives of the Developer (collectively referred to as the "Indernnitor Parties") or which is caused, in whole oi- in part, by any l0 act, omission. default or negligence (whether active or passive or in strict liability) of the Indemnitor Parties, or any of them, or (ii) the failure of the Developer to Comply materially with any of the requirements herein, or the failure of the Developer to conform to Applicable Laws, statutes, ordinances, or other regulations or requirements of any governmental authority, local, federal or - state, in connection with the performance or approval of this Agreement. or (Ili) claims for fees or commissions by any real estate sales persons, brokers or agents, lawyers, architects. landscape architects. engineers, snappers, surveyors, contractors, subcontractors, laborers, suppliers, material persons. lobbyists or any other person or entity retained or hired by the Developer relative to this Project, or Ov) Third Party Claims and Defenses under Section 36 herein. The Developer expressly agrees to indemnify, defend and hold harmless the Indemnitees, or any of them, from and against all liabilities which may be asserted by any employee or fonrier employee of the Developer, or any of its contractors or subcontractors, as provided above, for which the Developer's liability to such employee or former employee would otherwise be limited to payments under the state's Workers' Compensation. Occupational Health and Safety Act, or similar laws, or (v) Third Party Claims as provided in Section 36 of this Agreement. The Developer- further agrees to indemnify, defend and hold harmless the Indemnitees from and against (i) any and all Liabilities imposed on account of the violation of any Applicable Laws, law, ordinance. order, rule, regulation, condition, or requirement, related directly to the Developer's negligent performance under this Agreement, compliance with which is required by this Agreement of the Developer- Indemnitor, and (ii) any and all claims, and./or suits for labor, equipment, supplies, and materiais furnished by the Developer or utilized in the performance of this Agreement or otherwise. In the event that any third -party asserts a claim against the Developer and/or the Indemnitees for which the Developer is defending the Indenxnitees relating to the services provided. the Developer shal l have the right to select its legal counsel for such defense, subject to the approval of the City, which approval shall not be unreasonably withheld, The Developer's obligations to indemnify, defend and hold hamiless the Indcmnitees shall survive the termination or expiration of this Agreement, The Developer understands and agrees that any and all liabilities regarding the use of any contractor or subcontractor for services related to this Agreement shall be borne solely by the Developer throughout the duration of this Agreement and that this provision shall survive the termination of this Agreement. The Developer further understands that its contractors or subcontractors shall provide the City with the very same insurance requirements as those the Developer shall provide the City. The City and the Developer are not joint ventures, associates, partners or affiliates but rather are each independent and distinct from one another. Any debts, defaults, promises to pay moneys, or other commitments of the Developer rest solely with the. Developer and are not imputable to the City. (n) Insurance. The Developer shall cause its general contractor and subcontractors to obtain and maintain in force for the term of this Agreement. adequate: insurance coverage deemed acceptable by the Developer. The City's requirements for insurance are attached as Exhibit I hereto. Developer shall maintain such insurance coverages as are specified on this Exhibit and they will be required as specified red throughout the term of this Agreement. (o) Cooperation. Notwithstanding any contrary term or provision contained herein, the City agrees to use its reasonable good faith efforts to cooperate with Developer to implement the provisions of this Agreement, including without limitation this Section 10 and. Section 12. in the most tax -efficient manner possible in accordance with Applicable Laws, so long as the City's tax II revenue in connection therewith is not diminished or otherwise negatively affected. Such cooperation may include (i) restructrtr7nu legal or beneficial ownership of the Existing Fire Station Parcel. the New Fire Station Parcel, or the New Fire Station via a around lease, land trust. partnership and/or other legal structure as Developer may request and the City shall consider and shall not unreasonably refuse its approval, (ii) executing such customary and standard documents that inay be reasonably requested by a prospective lender for purposes of financing Developer's acquisition of all or any portion of the Block 85 Assemblage, the construction of the New Fire Station and the other Project improvements and the payment of any other obligations of Developer to City required by this Agreement, including but not limited to such documents as Developer's lender may require for purposes of subordinating the rights of the Parties under this Agreement to a mortgage securing any such financing, provided that in no event shall any such subordination agreement require the City to transfer any development rights or property nor may it ever encumber the City's title to any property it ovens unless it receives the public benefits and other consideration provided for in this Agreement, in a manner solely decided, or denied, as applicable in the sole and absolute discretion of the City Commission, (iii) agreeing to make consistent reporting with respect to the agreed upon characterization of the conveyance of the New Fire Station and the New Fire Station Parcel, as well as the conveyance of the Existing Fire Station and (iv) agreeing to modify certain aspects of the transactions contemplated herein to maintain compliance with all applicable tax rules, or if pursuant to the reasonable request of Developer, so long as such cooperative efforts: (1) do not materially adversely affect or impede the performance of the obligations of the Parties hereunder, (2) do not reduce or diminish the tax revenue or other revenues otherwise due to the City; and (3) are acceptable in form and substance to the City Attorney and City Manager in their reasonable discretion. Section I L New Fite Station Operation. The Parties hereby agree upon the following with respect to the operation of the New Fire Station: (a) Environmental Remediation Subject to the limitations provided for in Section 768.28, Florida Statutes, it is agreed to by Developer and the City that once and if the presence of any hazardous materials or waste on the Existing Fire Station Parcel is connfinned and notice is provided to the City of such, the City andior Developer shall pursue remediation. City fui-ther agrees, subject to Applicable Laws and at no cost to the City, to cooperate with Developer in connection with all reasonable requests in connection with such remediation. If applicable, the City shall use reasonable efforts to serve as a co -applicant and reasonably review and consider the Developer's application to designate all or a portion of the Block 85 Assemblage as a brownfield. Nothing herein shall limit Developer's ability to seek recovery from City as expressly permitted pursuant to law providing that the parties understand and agree that this Agreement, including this Section, does not grant, establish, confer or provide the Developer with any tights or remedies not already expressly provided by the laws of the State of Florida. The City expressly reserves sovereign itnununity as provided by law (subject to Section 768.28, Florida Statutes (2019)), and all ether defenses, immunities, claims. actions and privileges as are provided by law. (b) Occupancy. Upon receipt of the TCO and the City's acceptance of the New Fire Station, the City shall be permitted to take possession of the New Fire Station, pursuant to the terms of and conditions oI'Sections 10(1) and 100). (c) Nuisance. Consistent with the requirements of Section 316.271, Florida Statutes, the New Fire Station's set -,-ice vehicle sirens, whistles and bells "shall not be used except when the vehicle is operated in response to an emergency call, in which event the driver of the vehicle shall sound the I? siren, whistle, or bell when reasonably necessary to warm pedestrians and other drivers of the approach thereof." If the New Fire Station's service vehicles are not responding to an emergency call or warning pedestrians or other drivers, then the use of sirens will be prohibited in order to avoid any disturbance and nuisance to residents and neighbors. The City of Miami Department of Fire -Rescue (the -Fire Department") shall adopt and enforce policies that minimize the noise caused by the New Fire Station and the vehicles used by the New Fire Station. (d) Utilities and Q erating Expenses. Consistent with the requirements ofthe Shared Facilities Agreement, the City shall be responsible for payment of expenses directly serving and solely attributable to the New Fire Station, including but not limited to (1) utility expenses such as electricity, cable, water and sewer service, maintenance costs and other operational expenses, and (ii) the cost of other services such as solid waste removal and any costs of shared facilities within the Project solely allocable to the New Fire Station (collectively, the "City Operating Expenses-). Developer shall be responsible for installation of separate meters and, or connections for electrical, cable, water, and sewer utilities to service the New Fire Station. (e) Tries. The Fire Department's use and ownership of the New Fire Station is solely for the SpeCifilC, exCIuS1Ve Municipal public purpose and essential public service of providing a Fire -Rescue Station and is not subject to ad valorem taxation. In the event the Property Appraise]- incorrectly assesses ad -valorem taxes against the New Fire Station or the New Fire Station Parcel, Developer will reasonably cooperate with the City's efforts to ensure that no taxes are assessed against the New Fire Station or the New Fire Station Parcel. Developer and the City shall each be responsible for the payment of any taxes for which its property is assessed after both closings have been completed, each as to their own respective portions of the Block 35 Assemblage only (the City portion should be exempt from taxes) and the Shared Facilities Agreement has been entered into by the Parties. Until such time, Developer shall be responsible for the payment of any governmental taxes, assessments, charges, impositions and encumbrances assessed against the New Fire Station Parcel. Section 11.2. Public Benefits. In consideration of the agreements of the City contained herein and, subject to the City's payment and perfort-nance of its obligations hereunder and the issuance of all of the required Development Permits, Developer shall construct the New Fire Station and perform the balance of its obligations under this Agreernent, including the payment of the Additional NFS Cash Contribution. In addition, Developer shall comply with the following requirements as public benefits to the City. (a) Transfer of Development Rights. Developer agrees that it shall make a one-time payment to the City (the "TDR Pavnient") which funds the City shall apply for the exclusive and restricted use of promoting and developing affordable housing and park projects (including land acquisition) within District 3 in an amount equal to Nine Million Dollars (S9,000,000) (the "TDR Pavnient Amount") upon the date as of which (1) the County shall have accepted and recorded the Covenant in Lieu of Unity of Title for Block 85 (the -Covenant in Lieu'") and (ii) the City shall have transferred development density rights of not less than five hundred (500) residential units and no more than nine hundred forty-seven (947) units from the City Property to the Block 85 Assemblage in accordance with the applicable requirements of the Development Regulations. The aforementioned Covenant in Lieu and transfer of density should occur prior to Final Site Plan Approval and payment of the TDR Payment Amount is due within fifteen (15) days of the date as of which the County shall have issued Final Site Plan Approval for the Project. In the event that the City has executed the Covenant in Lieu and site plan approval for the Project has not been achieved 13 by December 31, 2020, the Developer shall make a one-time good faith initial payment of Two Million Dollars (S2,000,000) towards the TDR Payment and thereafter only Seven Million Dollars (S7,000,000) shall be due at the time of Final Site flan Approval. The foregoing good faith deposit may be waived by a majority vote of the Miami City Commission, but only if the District 3 Commissioner agrees to sponsor and place the request for waiver on the agenda of the Miami City Commission meeting at which any such vote is to be taken. Developer further agrees that the TDR Payment Amount shall be increased by S 15.000 for each additional individual residential density unit in excess of 500 residential units transferred from the City Property to the Block 85 Assemblage by City at Developer's request. For example" 510 residential units would require an additional payment of$I5U00. (b) Purl: Impact Fee Pavinent Timing. Developer shall pay the City's Parks and Recreation Impact Fee" amounting to Four Million One Hundred Thirty -Three Thousand One Hundred Ninety Dollars (S4,133.190) or such modified amount based on the calculation set forth belmv, but in no event less than Four Million Dollars (S4,000,000), to the City for the exclusive and restricted use of promoting and developing parks and recreational facilities (including land acquisition) tlu-oughout District 3 within fifteen (15) clays of the date as of which the County shall have issued Final Site Plan Approval for the Project. For purposes of this Agreement, the Parks and Recreation Impact Fee shall be calculated by multiplying the number of residential unity within the Project Plans by the City's Parks and Recreation Impact Fee amount, as published in Section 13-12 of the City's Code of Ordinances, as in effect at the time of site plan approval ("Paris Impart Fee Payrnent"). (c) Public Benefit Contribinion. Developer agrees that it shall make a one-time payment to the City ("Public Benefit Contribution") in an amount that tik-hen added to the TDR Payment Amount and the Park Impact Fee Payment equals Thirteen Million Dollars (S13,000,000) (the -Public Benefit Contribution Amonnt") within fifteen ( 15) days of the date as of whiff h the County shall have issued Final Site Plan Approval far the Project, For purposes of clarification, in the event that the sum of the TDR Payment and the Park Impact Fee is greater than or equal to Thirteen Million Dollars (S 13,000,000), then no Public Benefit Contribution or Public Contribution Amount shall be payable pursuant to this section. (d) Arts, Culture and Entertainment Contribution. Developer agrees that it shall make two contributions to the City of Miami for the exclusive and restricted use ofprornoting arts, culture and entertainment throuchout District 3, including but not limited to Southside Park and general food distribution within the District, each in an amount equal to Two Hundred and Fifty Thousand Dollars (S250.000) ("Arts, Culture and Entertainment Contribution"), payable to the District 3 Or ice. The first contribution shall be due fifteen (15) days following the Effective Date of this Agreement. The second contribution shall be due on June 15, 2020. (e) Streetseape Improvements Contribution. Developer shall either (i) contribute Two Hundred Thousand Dollars ($200,000.00) (the "Streetsca a Irn rovements Contribution Amount") to the City upon Developer's application for Development Permits, or (ii) post a surety bond issued by a Florida surety rated A:V or better per A.M. Best's Key Rating Guide, Latest Edition, or an unconditional and irrevocable letter of credit in the amount of Two Hundred Thousand Dollars (S200,000.00) and construct such public streetscape improvements as specified by the City Manager or Public Works Director to SW ? Avenue and SW 1? Street, for which the total cost incurred by Developer (including all soft and hard construction costs and fees) shall equal or exceed the Streetscape Improvements Contribution Amount or as otherwise required by the City Code of 14 Ordinances. In the event Developer elects to construct the public streetscape improvements pursuant to clause (ii) of the preceding sentence. Developer shall work with the City to design and construct such improvements. (f) Southside Park Improvements Contribution. Developer at its sole discretion, cost and expense shall either (1) contribute Three Million Dollars (S3,000,000.00) for improvements to Southside Park (the --Southside Park Improvements Contribution Amount-) to the City upon Developer's application for Development Permits, or (ii) construct improvements estimated at Three Million Dollars (S3,000,000) substantially in compliance with the concept plans prepared by SHOP Architects PC, attached hereto as Exhibit J ("Southside Park Improvement Plans'), subject to review and approval by the City Manager, the City's Parks and recreation Director, and the District 3 Commissioner, The City shall work with the Developer to allocate the Developer's proven paid Southside Park Improvements Contribution Amount to develop the Southside Park Improvement Plans consistent with the intent of the plans. The total cost incurred by Developer (including all soft and hard construction costs and fees) shall equal or exceed the Southside Park Improvements Contribution. Amount. In the event that the total costs and expenses incurred by Developer in completing the Southside Park Improvement Plans shall be less than the Southside bark Improvements Contribution Amount. Developer shall make a one-time payment to the City in the amount of the difference between such total costs and expenses incurred and the Southside Park Improvements Contribution Amount I:t-)r the exclusive and restricted use of promoting and developing affordable housing and park projects within District 3. (g) Southside Park, Southside Park shall remain a public park owned by the City and available for use by its residents and Visitors, except that the Developer and the City shall enter into an ageement to allow access, temporary parking and construction staging to allow for the construction of the Project (as required pursuant to Section I()(e) herein) and the Southside Park Improvement Plans. (h) Developer shall exercise commercially reasonable efforts to consult and coordinate with the City's Career -Source South Florida Center located at the Lindsey Hopkins Technical Center at 750 NW 20th Street, 4th Floor. iviiarm. Florida 33127; the Youth Co -Op. Inc. located at 5040 NW 7th Street, Suite 500. Miami. Florida 33126, and state andlor County economic development entities regarding job training and job placement services to the City residents seeking employment opportunities with potential employers which will locate or establish businesses within the Project. Developer agrees to use diligent, good faith ettorts to achieve or to cause its general contractor(s) and subcontractors (each, individually, a "Contractor") to use diligent, good faith efforts to achieve, as applicable., the. aspirational goals set forth in Section 12(i) ofthis Agreement. First preference will be given to City residents who have lived within the City limits for one or more years. (i) Developer shall cause each Contractor to exercise commercially reasonable efforts to cause at least twenty-five percent of the employees for the Project to be residents of the area comprised of the 33130, 33125 or 33135 zip codes (the "Immediate Vicinity"). If_ despite commercially reasonable efforts, a Contractor shall be unable: to procure enough employees from the Immediate Vicinity, Developer shall cause such Contractor to exercise commercially reasonably: efforts to cause at least twenty -live percent of the employees for the Project to be residents ofthe Immediate Vicinity or the area comprised by the five (5) zip codes with the highest poverty rates in the City (the "City Targeted Area"), If, despite commercially reasonable efforts, a Contractor shall be unable to procure enough employees from the Immediate Vicinity and the City Targeted Area, Developer shall 1$ cause such Contractor to exercise commercially reasonable efforts to cause at least twenty -live percent of the employees for the Project to be residents of the Inunediate Vicinity, the City Targeted Area and any other areas of the City. If, despite commercially reasonable efforts. a Contractor shall be unable to procure enough employees from the Immediate Vicinity, the City Targeted Area and any other areas of the City. Developer shall cause such Contractor to exercise commercially reasonable efforts to cause at least m enty-five percent of the employees for the Project to be residents of the Immediate Vicinity, the City Targeted Area, any other areas of the City and the area comprised by the five (5) zip codes with the highest poverty rate in the County ("County Targeted Area"). If, despite commercially reasonable efforts, a Contractor shall be unable to procure enough employees from the In7mediate Vicinity, the City Targeted Area, any other areas of the City and the County Targeted Area, Developer shall cause such Contractor to exercise commercially reasonable efforts to cause at least twenty-five percent of the employees for the Project to be residents of the Immediate Vicinity. the City Targeted Area, any other areas of the City, the County Targeted Area and any other area of the County. It: despite commercially reasonable efforts, a Contractor shall be unable to procure enough employees from the Immediate Vicinity, the City Targeted Area, any other areas of the City. the County Targeted Area and any other areas of the County (collectively, the "Hiring Preference Zones"), such Contractor shall be permitted to hire such workers from outside the Hiring Preference Zones as such Contractor shall deem appropriate in the exercise of its sole discretion. Developer shall cause each Contractor to exercise commercially reasonable efforts to electronically post job opportunities in established job outreach websites and organizations, including, without limitation. Youth Co -Op. Inc., South Florida Workforce, Florida Department of Economic Opportunity Career Source of South Florida located in Miami, their successors or assigns, and similar programs in order to attract as many eligible minority applicants for such jobs as possible. (k) In connection with the work performed by Developer to construct the Project pursuant to this Agreement, Developer shall cause the Contractor to pay a minimum hourly wage rate of twelve dollars and eighty-three cents (S 12.83) if health benefits are not provided to employees and eleven dollars and Fifty-eight cents (S 11.58) if health benefits are provided to employees. Commencing ,lanuaty I st. 2022 and for the duration oftile Project ("CPI Escalation Year"), the foregoing hourly rates shall be increased on January 1 st of the applicable calendar year by an amount equal to the percentagge increase during the calendar year immediately prior to the CPI Escalation Year in the consumer price index (.Index"), which is the monthly index published by the Bureau of Labor Statistics of the United States Department of Labor as the Consumer Price Index for All Items, Miami -Ft. Lauderdale, Florida, Base Year 1982-84=100. The Index adjustment to the minimum hourly wage rates shall hereinafter be referred to as the "CPI Escalation". The CPI Escalation of the minimum; hourly wage rates for the CPI Escalation Year shall be equal to the minimum hourly wage rates in effect for the calendar year immediately preceding the CPI Escalation Year multiplied by the CPI Percentage (as defined below). The'_CPI Percentage" shall equal the fraction (i) whose numerator equals the monthly Index published immediately prior to the CPI Escalation Year (or the nearest reported previous month) and (ii) whose denominator is the same monthly Index published immediately prior to the calendar year that preceded the CPI Escalation Year (or the nearest reported previous month). If the Index is discontinued with no successor Index, the City shall select a commercially reasonable comparable index. The Index adjustment set forth herein shall not result in a reduction of the respective minimum hourly wage rates. 16 (1) Developer shall exercise commercially reasonable efforts to require each Contractor to include the same minimum hourly wage rates in any contracts entered into by such Contractor with its subcontractors for the Project who will stipulate and agree that they will pay the same minimum hourly wage rates. subject to adjustment, as set forth in this section. (m) Developer shall exercise commercially reasonable efforts to provide ten (10) full -page weekly advertisements in the Diariu de las Americas newspaper or another newspaper of general circulation agreed to by the Parties to inform residents of job opportunities and job fairs prior to construction cotnniencement. This shall be in addition to advertisements done through other job outreach websites, organizations, and efforts. (n) Developer shall exercise commercially reasonable efforts to comply with the following: (1) Seven and one half percent (7.5%) of the total contract amount(s) for professional services agreements for soft costs including, but not limited to, design, engineering. survey, inspection, testing. and legal, shall be awarded to firms certified by the County as Community Business Enterprise ("CBE"), Community Small Business Enterprise 4"CSBE"), and Small Business Enterptse ("SSE") firms at the time each contract is signed; and (2) Ten percent (10%) of the total contract amount(s) for contracts for construction and construction -related materials, supplies and fixtures shall be awarded to firms certified by the County as CBE, CSBE, and SBE firms at the time the contract is si�aned. (o) No later than sixty (60) clays prior to issuance of a Development Permit for the construction of vertical improvements for the Project, Developer will desi�(gnate a firm who shall be CBE, CSBE and SBE certified to monitor Developer's compliance with Sections 12(n)(1) and (2) of this Agreement. (p) Capital Transaction Fee, (1) Upon the Final Capital Event, Developer shall pay to the City the Final Capital Transaction Fee. (2) Until such time as the Final Capital Event occurs. Developer shall pay to the City a Capital Event Fee in connection with each Capital Event. Each Capital Event Fee that Developer pays to the City shall serve as a credit toward the Final Capital Transaction Fee, required pursuant to Section l 2(p)(1) above, upon the occurrence of the Final Capital Event. (3) The City reserves the tight to examine the Developer's books and records in connection with determining any Capital Event Fee and the Final Capital Transaction Fee. The Developer additionally agrees to the applicability of the audit. inspection and resolution of contract dispute provisions set forth in Sections 18-101, 15-102, and l 3-105 of the City Code, as amended which are deenxed as supplemental provisions to this Section and as being incorporated by reference herein. 17 (4) The City's right to the Final Capital Transaction Fee shall stir-ive from the Effective Date until paid as to the entire Private Development. A covenant or other deed restriction shall be recorded against the Project Site (or Expanded Project Site, as applicablel by Developer to memorialize the terms of this Section, and shall only be released at such time that the Final Capital Event has occurred, and the Final Capital Transaction Fee has been paid to the City. (5) As used herein, the: following- terms shall have the following meanie-s: a. "Applicable Gross Sale Amount" shall mean the portion of the Gross Sale Amount attributable solely to the value of Applicable Portion. b. "Applicable Loan Proceeds" shall mean the portion of the Loan. Proceeds attributable stalely to the value of the Applicable Portion. C. "Applicable Percentage" shall mean: (a) one percent (19,6) ifthe Final Capital Event occurs within five (5) years of the Effective Date, (b) one and one half percent (I.50%) if the Final Capital Event occurs within years six (6) through ten (10) following the Effective Date, (c) two percent (2.001/o) ifthe Final Capital Event occurs within years eleven (11) through fifteen (15) lollo,wing the Effective Date, or (d) three percent (3.00%) ifthe Final Capital Event occurs at any point after year fifteen (15). d. "Applicable Portion" shall mean the percentage of floor area of the Private. Development that were associated with the Existing Fire Station Parcel prior to the Effective Date and acquired by Developer upon the conveyance of the Existing Fire Station Parcel. Based on a total floor area of 3,262,500 square feet.. the Applicable Portion shall be 49.43°'0 of the Applicable Loan Proceeds or Applicable Gross Sale Amount. C. "Capital Event" shall mean each refinancing of the entire Private Development (excluding any construction loans), f. "Capital Event Fee" shall mean a fee. if any, equal to one percent (l °ir) of (i) the Applicable Loan Proceeds less (ii) the Public Benefits Contributions. g. "Final_ Capital Event" shall mean the first Transfer following the Effective Date. L h. "Final Capital Transaction Fee" shall mean a fee, if any, equal to the Applicable Percentage of the (i) Applicable Gross Sale Amount (ii) less the Public Benefits Contributions. i. "Gross Sale Amount" shall mean the gross sale proceeds actually received by the Developer upon the consummation of any Transfer. The Developer shall furnish to the City a copy of a financial statement, a closing statement. a Transfer document, or other- similar documentation in connection therewith as shall reasonably demonstrate the Gross Sale Amount. 18 J. "Loan Proceeds" shall mean the net proceeds available to the Developer from any refinancing after deduction of (1) all third party costs and expenses incurred by the Developer in connection with the refinancing transaction, including, without limitation. all fees, casts and expenses unposed by the Developer's lender and any rating a`encies, as well as title and survey costs, escrow fees appraisal costs. consultant costs and attorneys' fees and costs and (ii) all amounts required to repay then -existing debt being refinanced. The Developer shall furnish to the City a copy of a closing statement or other similar documentation in connection therewith and shall reasonably demonstrate the amount of the Loan Proceeds. k. "Private Development" shall mean the private mixed -use tower and remaining private development of the Project as shown in the conceptual plans prepared by SHOP Architects PC, included as Exhibit H. The Private Development shall not include the New Fire Station, NFS Parking Spates, or Southside Park. 1. "Public Benefits Contribution" shall mean the: sum of amounts actually received by the City pursuant to and/or in connection with the terms of this Agreement (including but not limited to the Pubic Benefit Contribution Amount, Arts, Culture and Entertainment Contribution, Streetscape Improvement Contribution. and Southside Park Improvements Contribution). M. "Transfer" shall mean the sale, assignment, or transfer of the entire Private Development to any person other than a Permitted Assignee,. Section 13. Construction of encroachments within the Public Right-of-`Vav_ To the extent set forth in the Project Plans, the City hereby agrees to expeditiously sign off on all permits to permit encroachments within the public right-of-way as owner of the City -owned property that are the public rights -of -way and Southside Park. including but not limited to Public Works pen -nits. Notwithstanding the requirements of Section 55-14(c) of the Code: of the City of Miami, Florida, as amended (the "City Code"), the City agrees to waive any and all claims to payment of a user fee in connection with the construction of such encroachments within the public rights -of -way. Further. this Agreement shall satisfy the requirements of Section 55-14(d) of the City Code, in consideration for authorizing the construction of the aforementioned encroachments. Developer further covenants to: (a) Provide an insurance policy. in an amount determined by the City's Risk Manager, naming the City as additional insured for public liability and property damage. The insurance shall remain in effect for as long as the encroachment(s) exist above the: City -owned property. Should Developer fail to continuously provide: the insurance coverage, the City shall have the right to secure a similar insurance policy in its name and place a special assessment lien against the Developer's abutting private property for the total east of the premium. fbj Developer shalt hold harmless and indemnify the City, the State offlorida, as applicable, and their respective officials and employees from any claims for damage or loss to property and injury 19 to persons of any nature whatsoever arising out of the: use. construction. and development of the Project and from and against any claims which may arise out of the granting of permission for the encroachments or any activity performed under the terms of this Agreement. Section 14. Signage. The Project will be required to comply with all applicable Federal, State. and County signage rules, laws, orders, regulations, statutes, or ordinances. Permitted signage will accomplish the following goals: (i) moving pedestrians and vehicle traffic around Block 85 safely and efficiently: (ii) promoting safe and efficient pedestrian traffic within Block 85. and (iii) properly identifying the: Project. The Signage program will include, but is not limited to, the following sign types, some or all of which may incorporate LCD, LED, or similar electronic technology if approved and legally authorized: (1) directional signage. (u) ground signage, (iii) wall signage. (iv) monument signage, and (v) towersiyonage. The Signage program shall apply to signage visible from public rig-,-of-way but shall not apply to signage internal to the Project or not otherwise visible from the public right-of-way. Signage shall comply with Applicable Laws and related permitting. Section 15. Parking. Developer intends to establish a uniform valet system to set -vice the Project, Notwithstanding the limitations set forth in Sections 35-305 of the City Code, a maximum of three (3) valet permits may be issued for the operation of valet parking ramp on the same side of the block where the permit applicant is the operator of the uniform valet system. Robotic parking within enclosed parking structures shall also be pen-nitted. Section 16. Alcoholic Beverage Sales. Alcoholic beverage sales shall be permitted anywhere within the Project, except for Southside Paris, in accordance with any applicable requirements in Chapter 33C of the. County Code, and any other- Applicable: Laws. Section 17. Environmental. The City finds that the Project will confer a signif cant net improvement upon the publicly accessible tree canopy in the area. The City and Developer agree that Developer will comply with the intent and requirements of Chapter 24 of the County Code by prefon-ning tree replacement within the Brickell Station Subzone where necessary. Section 18. Release of EYis hia Agreements. This A=greeinent replaces and supersedes the 2018 Public Benefits Agreement. Section 19._ Entire Agreement. This Agreement sets forth the entire Agreement and understanding between the Parties with respect to the subject matter contained herein and merges all prior discussions between Developer and the City. Section_20. Compliance with Fire/Life Safety- Laws. The Project shall be constricted in accordance with the requirements of all Applicable Laws, ordinances and regulations. including without limitation life safety codes. Section 21. Im art Fees. Developer shall be obligated to pay such impact fees in connection with the construction of the Project (other than the New Fire Station) as may be required by the Chapter 13 of the City Code: as in effect as of Effective Date. However, special provisions - related to the payment of the Park Impact Fee are described in Section 12(b). This Agreement does not address any County Impact Fees, as applicable,. 20 Section 22. Necessity of Coln ping with Regulations Relative to Development Permits. The Parties a-ree that the failure of this Agreement to address a particular permit. condition. fee, term license or restriction in effect on the Effective Date shall not relieve the Developer of the necessity of complying with the regulation governing said pennitting requirements. conditions, fees, terms. licenses_ or restrictions. If state or federal laws are enacted after the execution of this Agreement that are applicable. to and preclude the Parties' compliance with the terms of this Agreement, this Agreement shall be modified or revolved as is necessary to accomplish the spirit of this Agreement and comply with the relevant state or federal laws. Section 23. _ Cooperation and Time is of the Essence. The Parties agree to cooperate with each other to the fullest extent practicable pursuant to the terms and conditions of this Agreement. The Parties agree that time is of the essence in all aspects of their respective and mutual responsibilities pursuant to this Agreement. The Parties agree to cooperate to achieve construction efficiency during construction of the Project, including but not limited to. coordination with respect to access, surveys. borings_ environmental compliance, and permitting. The City agrees to use its best efforts to prevent intern rence with construction of the Project, including temporarily limiting the occupancy of the New Fire Station while construction of the Project is ongoing. The City shall designate a point of contact within the City to assist Developer in achieving its development and construction milestones. Section 24. Notice. All notices, demands and requests which may or are required to be given hereunder shall. except as otherwise expressly provided. be in writing and delivered by personal ser4lce or sent by United States Registered or Certified Mail. return receipt requested, postage prepaid, or by overnight express delivery, such as Federal Express, to the Parties at the addresses listed below. Any notice given pursuant to this Agreement shall be deemed given when received. Any actions required to be taken hereunder which fall on Saturday, Sunday, or United States le4Qal holidays shall be deemed to be performed timely when taken on the succeeding day thereafter which shall not be a Saturday, Sunday or legal holiday. To the City: City Manager. City of Miami 3500 Pan American Drive Miami, FL 33133 With a copy to: City Attorney, City of Miami Attn: Victoria Mendez, City Attorney Miami Riverside Center 444 S.W, 2nd Ave.. 91h Floor Miami, FL 33130 City of Miami Dept. of Real Estate. and Asset Management Atiention: Daniel Rotenberg, Director 444 SW 2"d Avenue, 3" Floor Miami. FL 33130 To Developer: 191 SW 12 Owner LLC 21 c/o JDS Development Group Attn. Michael Stern 104 5th Ave, 9th Floor New York, Nor' 1001 1 With a copy to: Bercow Radell Fernandez Larkin & Tapanes, PLLC Attn: Melissa Tapanes Llahues, Esq. 200 S. Biscayne Boulevard, Suite 850 Miami, FL 33131 Kasowitz Benson Torres LLP Attn: Albert Delgado, Esq. 1441 Brickell Avenue. Suite 1420 Miami, FL 33131 Any Party to this Agreement may change its notification address(es) by providing written notification to the other Party pursuant to the terms and conditions of this section. Section 25. Multiple Ownership. In the event of multiple ownership subsequent to the approval of this Agreement, each of the subsequent owners, mortgagees and other successors in interest in and to the Block 85 Assemblage for any portion thereof, including condominium unit owners) shall he bound by the terms and provisions of this Agreement as covenants that r«n with the Block 85 Assemblage. Section 2G. Common Area INtaintenance. A maintenance and indemnification Covenant to run xith the land., in a form approved by the City Attorney. shall be required for any non-standard improvements and public amenities located within the public rights -of -way. Said Covenant shall identify a single person or single entity as the responsible party for all such non-standard improvements and public amenities located in the public right-of-way included in the Brickell Station Subzonc. Developer will create prior to the conveyance of any portion of the Block 85 Assemblage, an association or other entity which shall provide for the maintenance of all common areas, private roadways, cross -easements and other amenities common to the Block 85 Assemblage; provided that this requirement shall not apply to any conveyance of the entire Block 85 Assemblage, This Agreement shall not preclude the owner(s) of any portion of the Bloch 85 Assemblage from maintaining their own buildings or common areas not common to the Block 85 Assemblage outside the control of the association. The instrument creating the association or other entity shall be subject to the reasonable approval of the City Attorney. Section 27. Enforcement. The City, its successors or assigns. and Developer, its successors or assigns, shall have the right to enforce the provisions ofthis Agreement. Enforcement shall be 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. Each party shall bear their own respective Attorneys fees. Section 28. Exclusive Venue Choice of Law Specific Performance. It is mutually understood and agreed by the Parties that this Agreement shall be governed by the Iaws of the State of Florida, and any applicable federal law, both as to interpretation and performance, and that any action at law, suit in equity or judicial proceedings for the. enforcement of this Agreement or any 22 provision hereof shall be instituted only in the courts of the State of Florida or federal courts and venue for any such actions shall exclusively in a court of competent jurisdiction in Miami -Dade County. In addition to any other legal rights, the City and Developer shalt each have the right to specific performance of this Agreement in court. Each party shall bear its own attorney's fees in connection with any litigation, mediation or arbitration arising out of this Agreement. Each party waives any defense, whether asserted by motion or pleading, that the aforementioned courts are an improper or inconvenient Venue. Moreover, the parties consent to the personal jurisdiction of the aforementioned courts and irrevocably waive any objections to said jurisdiction. The Patties irrevocably waive any rights to a jury trial. Section 29. Voluntary Complianee. The Parties agree that in the event all or any part of this Agreement is struck clown by judicial proceedings or preempted l-)y legislative action, the Parties shall continue to honor the terms and conditions of this Agreement to the extent allowed by law, provided that if the invalidation of such terms and conditions would have a material adverse effect on the Patties and. or Parties' ability to perform its obligations under this Agreement. as determined in the Patties' reasonable discretion, then the adversely affected Party shall have the right to terminate this Agreement upon sixty (fig) calendar days prior written notice to the other Parry. Section 30. Events of Default. (a) Developer shall be in default under this Agreement if Developer fails to perform or breaches any term, covenant, or condition of this Agreement which is not cured within thirty (30) days after receipt of written notice from the City specifying the nature of such breach, provided, however, that if' such breach cannot reasonably be cured within thirty (30) days, then Developer shall not be In default if it commences to cure such breach within said thirty (30) day period and diligently prosecutes such cure to completion. (b) the City shall be in default under this Agreement if the City fails to perform or breaches any term, covenant, or condition of this Agreement and such failure is not cured within thirty (30) days after receipt of written notice from Developer specifying the nature of such breach, provided, however, that if such breach cannot reasonably be cured within this-ty (30) days. the City shall not be in default if it corrunences to cure such breach within said thirty (30) day period and diligently prosecutes such cure to completion, provided, however, such additional cure period shall in no event exceed an additional sixty (60) days. (c) It shall be a default under this Agreement if either party is declared bankrupt by a court of competent jurisdiction. Section 3l. Remedies Upon Default. Upon the occurrence of a default by a party to this Agreement not cured within the applicable grace period. Developer and the City agree that either party may terminate this Agreement prior to the: issuance cif the Final Site Plan Approval or may seek specific performance of this Agreement, and that seeking either termination or specific performance shall not waive any right of such party to also seek monetary damages, injunctive relief. or any other relief Section 32. Qbliaations Surviving Termination Hereof. Notwithstanding any contrary term or provision contained herein, in the event of any lawful termination of this Agreement, the following obli-ations shall survive such termination and continue in Cull force and effect until the ?3 expiration of a one ( l ) year term following the earlier of the effective date of such termination or the expiration of the Term: (i) the exclusive venue and choice of late provisions contained herein; (ii) rights of either Party arisin(, during or attributable to the period prior to expiration or earlier termination of this Agreement, and (iii) any other term or provision herein which expressly indicates either that it survives the termination or expiration hereof or is or may be applicable or efTective beyond the expiration or permitted early termination hereof. Section 33. No Oral Chance or Termination. This Agreement and the: exhibits and appendices attached hereto and incorporated herein by reference, if any. constitute the entire Agreement between the Parties with respect to the subject matter hereof. This Agreement supersedes any prior agreements or understandin-s between the Parties with respect to the subject matter hereof. and no change, modification, or discharge hereof in whole or in part shall be effective unless such change, modification or discharge is in writing and signed by the Party against whom enforcement of the change, modification or discharge is sought. This Agreement cannot be changed or ter ninated orally. Section 34. Lack of Amcv Relationship. Nothing contained herein shall be construed as establishing an a,wncv relationship betNvec:n the City and Developer and neither Developer nor its employees, agents, contractors, subsidiaries, divisions, affiliates or guests shall be deemed agents, instrumentalities. employees, or contractors of the City for any purpose hereunder, and the City,. its officials, contractors, agents, and employees shall not be deemed contractors, agents, of employees of Developer or its subsidiaries, divisions or affiliates. Section 35. Successor(s),, Assigns, and Designees. This Agreement shall be bindinU upon and inure to the benefit of the Pasties, their successors andlor assigns. Developer may not assign any of its obligations hereunder to any person or entity other than a Permitted Assignee (as hereinafter defined) without the prior written approval of the City Manager, in its reasonable discretion, provided that such approval shall not be unreasonably withheld, conditioned or delayed. Developer may assign its rights and obligations under this Agreement to a Permitted Assignee. For purposes hereof. the terin ,"Permitted Assignee"' shall mean (i) an affiliate of Developer; and;'or (ii) any entity controlled by Developer. Nothing contained herein shall be deemed to be a dedication, conveyance or grant to the public in general nor to any persons or entities except as expressly set forth herein. Section 36. Third Parri' Defense. The Developer shall, at its own cost and expense, vigorously defend any claims, suits or demands brought against the Developer and,'or the City by third parties challenging the Agreement or the Project, or objecting to any aspect thereof, including, without limitation. (0 a consistency challenge pursuant to Section 163.3215, Florida Statutes (2019), (h) a petition for writ of certiorari, (iii) an action for dec[aratory judgment, or (iv) any claims for loss, damage, liability, or expense (including reasonable attorneys' fees). The City and Developer shall promptly give the other written notice of any such action, including those that are pending or threatened, and all responses, filings, and pleadings with respect thereto, This shall be among the Developers duties to indemnify, hold harmless and defend the City under Section 10(m) of the Agreement although the City will cooperate with the Developer in assisting the Developer with the Developer's defense of such claims on the City`s behalf. 24 Section 37. No Third -Party- Beneficiary. No persons or entities other than Developer, the City, their heirs, permitted successors and assigns, shall have any rights whatsoever under this Agreement. Section 38. Recording. This Agreement shall be recorded in the Public records of Miami -Dade County, Florida at Developer's expense. A copy of the recorded Agreement shall be provided to the City Clerk and the City Attorney within two (3) weeps of recording. Section 39. Representations; Representatives. Each Party represents to the other that this Agreement has been duly authorized, delivered, and executed by such Party and constitutes the legal, valid, and binding obligation of such Party, enforceable in accordance with its terms. Section 40. No Exclusive Remedies. No remedy or election given by any provision in the Agreement shall be deemed exclusive unless expressly so indicated. Wherever possible, the remedies granted hereunder upon a default of the other Party shall be cumulative and in addition to all other remedies of law or equity arising from such event of default, except where otherwise expressly provided. Section 41. Counterparts. This Agreement may be executed in two (2) or more counterparts. each of which shall constitute an original but all of which, when taken together. shall constitute one and the same agrreement. Section 42. Estoppel. The City shall, within thirty (30) days of its receipt of a written request from Developer, provide Developer with a written estoppel certificate duly executed stating (a) to the best of the City's knowledge, whether- Developer is in default or violation of this Agreement and setting forth with specificity the default or violation (if any), (b) that this Agreement is in full force and effect and identifying any amendments to the Agrreen3ent as of the date of such certificate; and (c) such other infon-nation as may be reasonably requested by Developer or any prospective purchaser or Lender. Such estoppel certificate shall be certified to Developer and any prospective purchaser and/or lender, as applicable. The City may charge a modest regulatory fee for processing, of each such request. Section 43. Covenant of Good Faith. The Parties affirm, agree and represent that they wIII employ good faith and utilize fair dealing in the conduct all actions. undertakings and performance under this Agreement. Section 44. Citv's Rights as Sovereign. Notwithstanding any language to the contrary contained in this Agreement, the City retains all of its sovereign prerogatives and rights as a municipal corporation under Florida laws and shall in no way be estopped tram withholding or refusing to issue any approvals of applications for building or zoning, from exercising its planning or regulatory duties and authority, and from requiring development under present or future Laws and Ordinances of whatever nature applicable to the design, construction and development of the Project provided for in this Agreement, provided that City's exercise of its sovereign rights shall be in compliance with Applicable Laws and shall not be arbitrary or capricious. For the avoidance of doubt, this Agreement shall not impose any obligation upon the City in its regulatory capacity, nor shall any penalty or default under this Agreement be imposed upon the: City for actions undertaken in its regulatory capacity. 25 Section 45. Force Majeure. The Parties shall not be liable to the rather nor be deemed to have defaulted hereunder. and shall excuse the other from their respective obligations under this Agreement for any failure or delay in perfortning their respective obligations where such failure or delay to perform is caused by a Force Majeure event, which is defined herein as any acts of national security, national emergency, acts of God, war. act or threats of terrorism, domestic goverrunent regulations, strikes (other- than strikes of Developer's employees). fire or other natural calamity. disorder, civil disobedience, curtailment of transportation facilities or service, or any other occurrence: which makes it illegal or impossible for either of the Parties to perform their respective obligations under this Agreement. Neither party shall be entitled to claim Force Majeure for events caused. directly or indirectly, by the claiming party or individuals or entities udder its control and Force Majeure is not intended to include any contract dispute between Developer and its contractors. NOW, 4VI-[ E [tEOF, the City and Developer have caused this Agreement to be duly executed. [Execution Pages for the City and Developer Follow] 26 ATTEST: CITY OF MIAMI, a municipal corporation of the State of Florida v:_ y: f odd B. Han Arthur riega V City Clerk APPROVES AS TO LEGAL C( STATEOF + �� COUNTY QF a FORM AND 0 )SS City Manager � APPROVED AS TD I S'UIRANCE REQUIREMENTS: 4": Ann -Marie $harpe f Risk Managemerit Director The foregoing instrument was acknowledged before me this l day of 1 2020 by of the City of Miami. Florida who is Persna#y known to i e or ( j produced a valid driver's license as identification. Notary Public: Si-n Name: Print Dame: ax OFELIAE. PERFZ�y���CI�IV�7Z22. �.�.Y�� F�IRES.Aug�VLJas.•Bof" TTrU I�lvram Ply 0, f IN WITNESS WHEREOF, these presents have been executed this day of 4020 Witnesses By: Print Name: f�� �1 �►' 1 �t� By: Print Nan-ie-Q STATE OF Td6'rijo) ) )SS COUNTY OF^DOkAC ) 191 SW 12 Owner, LLC, a Delaware limited liability corPar n By: Name: mckc Title; The foregoing instrument was acknowle ged before me this day o2020 by of 191 SW 12 Owner C who is Personally known to me or t ,produced a valid driver':rise as identification. Notary Public: Sign Name: Print Name: v w (b 51 My Commission Expires A A i U) o [NOTARIAL SEAL] eONAwMos g MY caMMIsstox # EXFIRRS ti 1d, 2423 Attachment C t00011878.DOCX. 11 r Attachment D 100011878.DOCX. 11 CITY OF MIAMI OFFICE OF THE CITY ATTORNEY TO: Todd Hannon, City Clerk f — FROM: Victoria Mendez, City Attorney _46_2 DATE: February 20, 2015 L�1) RE, Brownfield Property Designation Notice Requirements and Status of Various Properties Previously Designated in 2014 Matter ID No.: 15-297 Two questions have been asked by the adininistration with regard to the previous Brownfield designations that took place in July 2014: 1. What are, the notice requirements for designating a property as a Brownfield? 2. What is the status of the various properties designated as Brownfield in July 2014 (in the event the notice was not fully compliant with notice requirements for Brownfield)? The suinination of the answer to the first question is that the required notice to designate a Brownfield is prescribed by state law as discussed below. The summation of the answer to the second question is that a defective notice of a Brownfield designation must be redone from the outset. Thus, the designations have no force and effect. Flotida Statutes prescribes the notice requirements for a municipality to designate a Brownfield. The pertinent subsection of the Florida Statute provides: Resolution adoption,—Ylle Brownfield area designation must be carried out by a resolution adopted by the jurisdictional local government, which includes a map adequate to clearly delineate exactly which parcels are to be included in the Browqfteld area or alternatively a less -detailed map accompanied by a detailed legal description of the Brownfield area, For municipalities, the governing body shall adopt the resolution in accordance with the procedures outlined in s. 166.041, except that the procedures for the public hearings oil the proposed resolution must be in the form established in s. 166.04](3) (c) 2.1 4. Notice and public hearing requirements for designation of a proposed Brownfield area outside a redevelopment area or by a nongovernmental entity. Compliance with the following provisions is required before designation of a proposed Brownfield area under paragraph (2)(q) or paragraph (2)(c): 'Cf. 376A (1) (o), Fla, Stat. 14-00566 - Exhibit - City Attorney's Memo 15 Z5 Z: Re: Brownfield Property Designation Notice Requirements and Status of Various Properties Previously Designated in 2014 February 20, 2015 Page 2 a. At least one of the required public hearings shall be conducted as closely as is reasonably practicable to the area to be designated to provide an opportunity for public input on the size Qf the area, the objectives for rehabilitation, job opportunities and economic developments anticipated, neighborhood residents 'considerations, and other relevant local concerns. b. Notice of a public hearing mart be made in a newspaper of general circulation in the area, must be made in ethnic newspapers or local community bulletins, must be posted in the affected area, and must be announced at a scheduled meeting of the local governing body before the actual public hearing. (2)(a) Local government proposed Brownfield area designation outside specified redevelopment areas. —If a local government proposes to designate a Brownfield area that is outside a community redevelopment area, enterprise zone, empowerment zone, closed military base, or designated Brownfield pilot project area, the local government shall provide notice, adopt the resolution, and conduct public hearings pursuant to paragraph (1)(c). At a public hearing to designate the proposed Brownfield area, the local government must consider: There are somewhat more relaxed noticing requirements for Brownfield designations which are located in certain areas: The strict notice requirements do not apply to a proposed Brownfield area if the local government proposes to designate the Brownfield area inside a cormmunity redevelopment area, enterprise zone, empowerment zone, closed military base, or designated Brownfield pilot project area and the local government complies with paragraph (1)(c).2 To our knowledge, the 2014 designations did not occur in a community redevelopment area, enterprise or empowerment zone, military base or pilot program. See link to relevant Florida Statute: 376.80. Brownfield program administration process The Brownfield designations that occurred in 2014 were defective in the following respects: the properties were not posted as is required by the State Statutes noted above; normally defects in the notice procedure for enacting an ordinance or other legislative treasure such as a resolution render the ordinance invalid. The Third District Court of Appeal ruled in invalidating a land development permit to enact certain additional buildings because the notice required by 166.041, Fla. Stat. was not given. Section 376.80 (2) (b), Fla. Stat. Doc. No.: 513852 Re: Brownfield Property Designation Notice Requirements and Status of Various Properties Previously Designated in 2014 February 20, 2015 Page 3 Such notice is clearly mandatory, and constitutes a jurisdictional condition precedent to the activation of the City's power to adopt the ordinance at issue. See Ellison v. City of Fort Lauderdale, 183 So.2d 193 (F1a.1966); City of Fort Pierce v. Davis, 400 So.2d 1242 (Fla. 4th DCA 1981); Skaggs v. City of Key West, 312 S6.2d 549 (Fla. 3d DCA 1975); Bal Harbour Village v. State ex rel. Giblin, 299 So.2d 611 (Fla. 3d DCA 1974), cert. denied, 311 So.2d 670 (F1a.1975). In the instant case, there was no newspaper publication or notice of the City Commission meeting, at which adoption of the ordinance took place. Accordingly, the ordinance is null and void because the City failed to follow the mandatory notice requirements of Section 165.041(3) (a). See David v. City of Dunedin, 473 So.2d 304 (Fla. 2d DCA 1985), Fountain v. City of Jacksonville, 447 So. 2d 353 (Fla. 2d DCA 1984).3 It is well established law that failure of a Florida City to give the required notice will render the legislative measure void.4 The defectively noticed designations via resolution made in July 2014 must be re -noticed from the outset. That is, the process must begin anew for all. Thus, let the records reflect that this legislative action has no force and effect in law. Please adjust your records accordingly by placing a copy of this memo in your Iegislative file (Legistar) next to the legislation star that notice is given to all that there is no Brownfield designation pursuant to Resolution No. R-14-0303 (see attached). 3 HealthSouth Doctors Hospital Inc. v. Hartnett, 622 So. 2d 146 (Fla. 3'd DCA 1993). 4 white v. Town of Inglis, 988 So. 2d 163(Fla. l DCA 2008), Doc, No.: 513852 City Hail City ty of Miami 3500 Pars American Drive F' 1a Miami, FL 33133 www.mlamigov.corn Master Report Enactment Number. R-94-0303 File Number: I4-00566 File Type: Resolution Status: Passed Version: I Reference: Controlling Body: Office of the City Cleric File Name: City Parks Brownfield Situ Designation Introduced: 6/16/2014 Requester: Department of Capital Cost: Final Action: 7124/2014 Improvement Programs/Transportation Title: A RESOLUTION OF THE MI.ANFI CITY COMNIISSION, WITH ATTACHMENT(S), DESIGNATING THE PROPERTIES LOCATED AT 3045 SHIPPING AVENUE, 2795 SOUTHWEST 37TH AVENUE, 3400 GRAND AVENUE, 3349 PAN AMERICAN DRIVE, 4355 SOUTHWEST 42ND AVENUE, AND 140-142 SOUTHWEST I TH STREET, AS BROWNFIELD SITES WITHIN THE CITY OF MIAMI, FLORIDA, FOR THE PURPOSE OF ENVIRONMENTAL REHABILITATION AND PURSUANT TO FLORIDA STATUTES SECTION 376.90, ET. SEQ., WITH OTHER CONDITIONS AS STATED HEREIN. Sponsors: Notes Indexes: Attachments: 34-00566 Summary Form.pdf,14-00566 Notice to the Public,pdf,14-00566 Memo -Designated Properties.pdf,14-00566 L.egislation.pdf,14-00566 Exhibit 1.pdf,14-00566 Exhibit 1pdf,14-00566 Exhibit 3.pdf,14-00566 Exhibit 4.pdf,14-00566 Exhibit 5.pdf, History of Legislative Fite Version: Acting Body: Date: Action: Sent To: Due Fate: Return Date: Result: I Oftiee of the City 7/15/2014 Reviewed and Attorney Approved 1 City Commission 7/24/2014 ADt3PTED Pass 1 Office of the Mayor 7/29/2014 Signed by the Mayor Office of the City Clerk I Office of the City Clerk 7/30/2014 Signed and Attested by City Clerk City of Mlarnt Page 1 Printed an 812612014 ur rr' City of Miami t eFi, ri r.tcri r,r„ is +. �y Legislation Resolution File -Number: 14-00566 City Hall 3500 Pan American Drive Miami, FL 33133 vvwmmiamigov,com Final Action Date: A RESOLUTION OF THE MIAMI CITY COMMISSION, WITH ATTACHMENT(S), DESIGNATING THE PROPERTIES LOCATED AT 3045 SHIPPING AVENUE, 2795 SOUTHWEST 37 T H AVENUE, 3400 GRAND AVENUE, 3349 PAN AMERICAN DRIVE, 4355 SOUTHWEST 42ND AVENUE, AND 140-142 SOUTHWEST 11TH STREET, AS BROWNFIELD SITES WITHIN THE CITY OF MIAMI, FLORIDA, FOR THE PURPOSE OF ENVIRONMENTAL REHABILITATION AND PURSUANT TO FLORIDA STATUTES SECTION 376.80, ET. SEQ., WITH OTHER CONDITIONS AS STATED HEREIN. WHEREAS, the properties located at 3045 Shipping Avenue, 2795 Southwest 37th Avenue, 3400 Grand Avenue, 3349 Pan American Drive, 4355 Southwest 42nd Avenue, and 140-142 Southwest 11th Street, Miami, Florida ("Properties"), are owned by the City of Miami ("City"); and WHEREAS, certain contaminants in excess of the Residential Cleanup Target Levels were discovered in the sail at 3045 Shipping Avenue, Miami, Florida (Blanche Park), on or about September 4, 2013, as more particularly described in Exhibit 1" attached and incorporated; and WHEREAS, certain contaminants in excess of the Residential Cleanup Target Levels were discovered in the soil at 2795 Southwest 37th Avenge, Miami, Florida (Douglas mark), on or about November 13, 2013, as more particularly described in Exhibit "1", attached and incorporated; and WHEREAS, certain contaminants in excess of the Residential Cleanup Target Levels were discovered in the soil at 3400 Grand Avenue, Miami, Florida (Billy Rolle Park), on or about December 23, 2013, as more particularly described in Exhibit ""1", attached and incorporated; and WHEREAS, certain contaminants in excess of the Residential Cleanup Target Levels were discovered in the soil at 3349 Pan American Drive, Miami, Florida (Site of Future Regatta Park), on or about April 26, 2013, as more particularly described In Exhibit "1" attached and incorporated; and WHEREAS, certain contaminants in excess of the Residential Cleanup Target Levels were discovered in the soil at 4.355 Southwest 42nd Avenue, Miami, Florida (Merrie Christmas Park), on or about September 20, 2013, as more particularly described in Exhibit "1"; attached and incorporated; and WHEREAS, certain contaminants in excess of the Residential Cleanup Target Levels were discovered in the soil at 140-142 Southwest 11th Street, Miami, Florida (Southside Park), on or about December 23, 2013, as more particularly described in Exhibit "I", attached and incorporated; and WHEREAS, the City has already undertaken assessment and remediation of the Properties in accordance with local and State law; and WHEREAS, pursuant to Resolution No. 98-242, adopted March 10, 1998; Resolution No. 99-197, adopted March 23, 1999; Resolution No. 05-0117, adopted February 24; 2005; and Resolution Q12 of-illand ,rage 1 af3 Fife Id, 14-00566 0 rsforr:. D Printed On. 7/11/?014 File Number- 14-00566 No. 06-0561, adopted September 28, 2006, the City Commission designated certain areas within the City to be Brownfield Areas, which contain vacant, blighted, or underused property that might be limited by actual or perceived environmental contamination, as more particularly described in Exhibit "2", attached and incorporated; and WHEREAS, the Properties are located outside of the current City Brownfield Area previously designated, shown on the map marked Exhibit"3", attached and incorporated; and WHEREAS, the City desires to designate the Properties as Brownfield sites; and WHEREAS, the City agrees to rehabilitate and remediate the Properties; and WHEREAS, the rehabilitation and redevelopment of the Properties will result In the creation of recreational areas and parks-, and WHEREAS, the Property use is consistent with the local comprehensive plan and are permissible uses under the applicable local land development regulations; and WHEREAS, the Properties are designated as City parks and will remain as City parks; and WHEREAS, the City has sufficient financial resources to implement and complete the rehabilitation agreement and restoration of the Properties; and WHEREAS, the City has considered the following criteria set forth in Florida Statutes Section 376.80(2)(a) in designating the Properties as Brownfields, as more particularly described In Exhibit "4" attached and incorporated: (1) whether the Brownfield site warrants economic development and has a reasonable potential for such activities, (2) whether the proposed area to be designated represents a reasonably focused approach and is not overly large In geographic coverage, (3) whether the area has potential to interest the private sector in participating in rehabilitation, and (4) whether the area contains sites or parts of sites suitable for limited recreational open space, conservation areas, or parks; and WHEREAS, pursuant to Florida Statute 376.80(1)(c)(1) of the Florida Brownfields Redevelopment Act, the City shall notify the Florida Department of Environmental Protection and the Miami -Dade Department of Regulatory and Economic Resources for amendments to the existing City Designated Brownfield Area; and WHEREAS, the City Commission has determined that the Properties have -,net the criteria to be designated as Brownfield sites; NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MiAMI, FLORIDA: Section 1. The recitals and findings contained in the Preamble to this Resolution are adopted by reference and incorporated as fully set forth In this Section. Section 2. The City Commission designates the Properties as Brownfield sites within the City, for the purpose of environmental rehabilitation and pursuant to Florida Statutes Section 376.78, et. seq. Cif)^ of Miami Page 2 of 3 File Id; 14-00566 (T+rslan' 1) Printed On. 711112014 File Number, 14-00566 Section 3. In accordance with the Brownfields Redevelopment Act, Section 376.80(1), Florida Statutes, for Brownfield program administration processes, the City Manager is directed to notify the Florida Department of Environmental Protection and the Miami -Dade Department of Regulatory and Economic Resources of the designation of the Properties as Brownfield sites, and to undertake any other necessary related procedures, notices, and requirements for said designation. Section 4. The map of designated Brownfield sites and areas shall be updated to include the Properties. Section 5. Simultaneous to the designation, the City will continue remediation of City parks affected by contamination, enter into a Brownfields Site Rehabilitation Agreement for each park, and apply for Voluntary Cleanup Tax Credits upon obtaining a Site Rehabilitation Completion Order. Section 6. This Resolution shall become effective immediately upon its adoption and signature of the Mayor.{1) APOVED AS TO FORM AND CORRECTNESS: r VI ARIA MI:NDEZ CITY ATTORNEY Footnotes: (11 if the Mayor does not sign this Resolution, it shall become effective at the end of ten (1 a) calendar days from the date it was passed and adopted. if the Mayor vetoes this Resolution, it shall become effective immediately upon override of the veto by the City Commission. City of I fland Page 3 of File Id: 14-44566 Mersion: II PHnted Ora: 711117014 TO FROM Daniel J. Alfonso City Manager Mark S anioli P.E. Di Capital Improvements Transportation Progran, CITY OF MIAMI, FLORIDA INTER -OFFICE MEMORANDUM DATE: June 13, 2014 FILE: SUBJECT: Findings to Designate Select City of Miami Parks as Brownfield Sites REFERENCES: ENCLOSURES: Property Locations This memorandum respectfully requests your approval and adoption of the below described findings to authorize designating six (6) City parks that are located outside of the City of Miami existing Brownfield Area, as Brownfield Sites. The City has conducted environmental status evaluations at 112 parks located within ourjurisdiction due to contamination discovery at Blanche Park while Implementing soil testing within a 1-mile radius of the former City Incinerator #2 that operated in Coconut Grove located at 3900 Thomas Ave, which is currently the Grove Fire Rescue Training Center. During the environmental status evaluation via visual park inspections, historical aerial photographs, and viewing archived City files; several locations were suspected of former landfill operations prior to conversion into parks. Following the initial' environmental status evaluation, the soil was tested at each of the parks of concern which resulted in confirmation of eight (8) City parks containing a combination of solid waste debris and heavy metals at levels that exceed the Miami -Dade Cleanup Target Levels for the Residential Threshold (residential threshold for parks is due to children's potential exposure to the soil). Per the requirements of Florida Administrative Code (F.A.C.) 62-780, the City is required to remedy environmental hazards on any property that it owns. The location and name of the parks tested with confirmation of solid waste debris and heavy metals contamination are as follows, Outside of the existing Citv of Miami Desiqnated Brownfield Area 3445 Shipping Avenue (Blanche Park) 2795 SW 37`1' Avenue (Douglas Park) 3400 Grand Avenue (Billy Rolle Park) 3349 Pan American Drive (Site of Future Regatta Park) 4355 SW 42nd Avenue (Merrie Christmas Park) 140-142 SW 11"' Street (Southside Park) Within the existing Citv of Miami Designated Brownfield Area 1901 NW 24' Avenue (Curtis Park) 301 Biscayne Boulevard (Bayfront Park) FINDINGS As of the date of this memo, Blanche Park is currently under remediation, Merrie Christmas Park is in the pre-remediation phase, and the remaining are either undergoing or concluding a thorough environmental assessment by testing of the soil and groundwater. The City of Miami intends to remediate each park with confirmed environmental contamination per requirements listed within F.A.C. 62-780. Each ,park remediated will be restored to its original form, and will remain as a park upon completion of the work. Brownfields are typically associated with property that has a combination of environmental issues and redevelopment potential. Although there will be no redevelopment component in these instances, the City intends to; 1.) Designate each of the six (6) parks affected and not currently in the City Designated Brownfield Area, as a Brownfield Site; 2.) Enter into a Brownfield Site Rehabilitation Agreement with the Miami -Dade Department of Environmental Resources Management (DERM) for all eight (8) parks and; 3.) Upon successful remediation, apply for Voluntary Cleanup Tax Credits for the purpose of sale ortransfer of the credit as allowed per Florida Statute 220.1845. The City of Miami currently owns each City park. Dating hack to as early as the 1930's, residual incinerator ash was deposited on parcels of land throughout Dade County, some of which were converted into City parks. The City of Miami owned the parcels of land in which the eight (8) City parks are located at the time of this practice. This activity predated today's environmental laws, however currently Florida Statute 376.80 imposes strict liability on any owner of a contaminated site. According to Florida Statute 376.82; any person who has not caused or contributed to the contamination of a Brownfield Site on or after July 1, 1997, is eligible to participate in the brownfeld program established In ss. 376.77-376,85. The contamination discovered at each park was deposited prior to 1997, therefore the City would be eligible to claim Voluntary Cleanup Tax Credits on each property, given that they are designated Brownfield Sites, and that each has undergone remediation following the guidelines in F.A.C. 62-780. Upon successful remediation, and issuance of a Site Rehabilitation Completion Order from the Florida Department of Environmental Protection (FDEP), a maximum of $500,000 can be claimed on each property; and the credits may be sold or transferred in units of not less than 25% of the remaining credit. Unused credits may be carried forward for up to five (5) tax years. The City has determined that designation of these properties as Brownfield Sites coupled with the cleanup would be of future benefit for the purpose of recouping a portion of the overall costs that will be expended to investigate and remediate these sites, which will total several millions of dollars, Your signature below will indicate your concurrence with the above recommendation and acceptance of these findings as your own justification for designating these six (6) park properties as Brownfield Sites for the purpose of the sale or transfer of future Voluntary Cleanup Tax Credits that will be applied for and Issued for each property individ ally, $do Approved b sate: Daniel J. Alfo sf Cc: Alice Brava, P.E„ Deputy City ManagerlChief of Infrastructure Victoria Mendez, City Attorney Mark Spanioli, P.E., ❑hector, capital improvements and Transportation Program Stanley Motley, Director, Parks and Recreation Department CITY OF MIAMI PARKS BRC3WNFIELD DESIGNATION PROPERTIES N 1 1 $ j BILLY ROLLE PARK Property Highlighted in Red: 3400 {Grand Avenue (Billy Rolle Park); Folio: 01-4121-007-4620 Property Highlighted in Red: 3349 Pan American Drive (Future Regatta Park) Folio: 0 1 -4122-002-00 10 F > 4 .� Now-, rV LI "4vr t 00 40i it Aww� 71 1 po R A SOUTHSIDE PARK Property Highlighted in Red: 140-142 SW 11 Street(Southside Park); Folio: 01-0208-050-1010 rAM� Al1TH_ f9�