HomeMy WebLinkAboutExhibit A - Flagler DA (Obsolete)Prepared by and Return to:
(Space above for County Recorder's Office)
THIS FIRST AMENDMENT TO DEVELOPMENT AGREEMENT (this
"Amendment") is made as of the day of , 2023 ("Effective Date") by and among
Flagler Holding Group, Inc. ("Flagler") a Florida profit corporation with an address of 3326
Mary Street, Miami FL 33133, DD 4200 LLC ("Developer") a Florida limited liability company
with an address of 200 W. Cypress Creek Rd., Suite 500, Ft. Lauderdale, FL 33309, and CITY
OF MIAMI, FLORIDA, a municipal corporation of the State of Florida ("City") (collectively
referred to as the "Parties").
WITNESSETH:
WHEREAS, Flagler and the City entered into that certain Development Agreement, as
recorded on May 24, 2019 in Official Records Book 31455, Page 2659, of the Public Records of
Miami -Dade County, Florida (the "Flagler Development Agreement"); and
WHEREAS, following execution of the Flagler Development Agreement, the City
Commission approved amendments to the Miami Design District Retail Street Special Area Plan
("SAP") under Ordinance No. 14001 on May 27, 2021; and
WHEREAS, the Flagler Development Agreement sets forth the zoning of and conditions
by which Flagler's property located in the SAP at 4218 NE 2nd Avenue, Miami FL 33127,
referred to in the SAP Design Concept Book as Parcel 48, and more particularly described in
Exhibit "A" (the "Existing Property"), is to be developed; and
WHEREAS, Flagler conveyed the Existing Property to DD 4200 LLC, as evidenced by
that certain Special Warranty Deed dated (the "Transfer Date"), recorded in
Official Records Book , Page , of the Public Records of Miami -Dade County,
Florida; and
WHEREAS, the Parties wish to release Flagler as the "Developer" in the Flagler
Development Agreement, and replace DD 4200 LLC as the "Developer" in the Flagler
Development Agreement; and
WHEREAS, the following parcels are currently located in the SAP and were previously
included in that certain Second Amended and Restated Development Agreement, as recorded on
August 23, 2021 in Official Records Book 32694, Page 850, of the Public Records of Miami -
Dade County, Florida (the "MDDA Development Agreement"): (i) 4200 NE 2nd Avenue, Miami
Florida 33137, (the "4200 Property") referred to in the Concept Book as Parcel 47, and more
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particularly described in Exhibit "B" attached hereto, and (ii) 4240 NE 2nd Avenue, Miami
Florida 33137, (the "4240 Property") referred to in the Concept Book as Parcel 49, and more
particularly described in Exhibit "C" attached hereto (collectively, the "New Properties"); and
WHEREAS, the City Commission approved the release of the New Properties from the
MDDA Development Agreement ("MDDA Release"), under Ordinance No. on
, 2023, which was effectuated via that certain Partial Release and Amendment to
the to Second Amended and Restated Development Agreement, dated , 2023, as
recorded in Official Records Book , Page , of the Public Records of Miami -Dade
County, Florida; and
WHEREAS, the 4200 Property, previously held in fee simple title by 4200 Associates,
LLC, was conveyed to DD 4200 LLC, as evidenced by that certain Special Warranty Deed dated
, 2023, recorded in Official Records Book , Page , of the Public
Records of Miami -Dade County, Florida; and
WHEREAS, the 4240 Property, previously held in fee simple title by MDDA Morning
Dew, LLC, was conveyed to DD 4200 LLC, as evidenced by that certain Special Warranty Deed
dated , 2023, recorded in Official Records Book , Page , of the
Public Records of Miami -Dade County, Florida; and
WHEREAS, simultaneously with the MDDA Release, in compliance with Section 35 of
the Flagler Development Agreement and in accordance with Florida Statutes, Chapter
163.3225(1), the Flagler Development Agreement was amended after two public hearings before
the City Commission, which were held on , 2023, and again on
, 2023 via Ordinance No. ; and
WHEREAS, the Parties wish for development of the Existing Property and New
Properties to proceed substantially in accordance with the Miami Design District Retail Street
SAP Regulating Plan and Design Concept Book, as most recently modified on
2023, by adoption, simultaneously with approval of this Amendment, of
Ordinance No. , both of which are attached as Exhibit "D" hereto and incorporated
herein by reference (the "Regulating Plan and Concept Book"); and
WHEREAS, the Parties desire to amend Sections 12, 13 and 33 of the Flagler
Development Agreement as set forth below; and
WHEREAS, the Parties desire to add new Section 40 to the Flagler Development
Agreement as set forth below; and
WHEREAS, the Parties now desire to amend the Flagler Development Agreement to
memorialize these and other changes as set forth herein.
NOW, THEREFORE, in consideration of the receipt of good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby
agree as follows:
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1. Incorporation of Recitals. The above recitals are true and correct and are
incorporated herein as if set forth in full in the body of this Amendment.
2. Defined Terms. Capitalized terms used but not defined herein shall have the
meaning ascribed to such terms in the Flagler Development Agreement, unless otherwise noted.
3. Conflict. In the event of a conflict between the terms and provisions contained
within this Amendment and the terms and provisions contained within the Flagler Development
Agreement with regard to the subject matter hereof, the terms and provisions contained within
this Amendment shall control. All the terms and conditions of the Flagler Development
Agreement not amended hereby shall remain in full force and effect.
4. New Developer. The Flagler Development Agreement is hereby amended to
release Flagler as the "Developer" from the Flagler Development Agreement, and add DD 4200
LLC as the "Developer" to the Flagler Development Agreement. As of the Transfer Date, Flagler
does not have any further obligation or liability under the Flagler Development Agreement, and
the remaining Parties shall look only to the other remaining Parties for performance under the
Flagler Development Agreement.
5. New Properties. The Flagler Development Agreement is hereby amended to add
the New Properties to the Flagler Development Agreement effective at the time this Amendment
is recorded. The New Properties and Existing Property (collectively referenced as the "Property"
throughout the Flagler Development Agreement) are within the boundaries of the SAP and will
be developed in accordance with the Regulating Plan and Concept Book.
6. No Communication Kiosks. Section 12 of the Flagler Development Agreement is
hereby amended and restated as follows:
Section 12. Street Right -of -Way Improvements. In order to foster a uniform aesthetic
within the SAP, Developer agrees to coordinate with the other property owners within the
boundaries of the SAP in order to replicate or complement the street right-of-way
improvements implemented elsewhere within the boundaries of the SAP. Developer
agrees to construct and maintain, at its sole cost and expense, any non-standard
improvements within the right-of-way that are adjacent to and abutting the Property
owned by the Developer. In order to maintain the carefully planned and curated aesthetic
of the SAP, the City shall not place or contract for placement any newsracks,
communication kiosks, or similar interactive devices as described in Sec. 54-9(h) of the
City Code within the public right-of-way abutting properties located within the SAP.
7. Open Space Contribution. Section 13 of the Flagler Development Agreement is
hereby amended and restated as follows:
Section 13. Open Space/Civic Space Contribution. Developer shall strive to provide a
minimum of ten percent (10%) of Open Space on the Property, but in no event shall
provide less than six and one-half perfect (6.5%) of Open Space consistent with the
requirements set forth in the Regulating Plan and Concept Book. Open Space and/or
Civic Space requirements for the Property may be satisfied by providing a parcel of land
dedicated as a park/open space within the SAP area, or within a half mile radius of the
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SAP Area to offset any deficiency of Open Space and/or Civic Space requirements. Said
parcel of land shall be improved as a public park/open space by the Developer, may be
owned by the Developer, and shall be dedicated for use as a public park. Should the Open
Space on the Property at completion of all phases of the proposed development or within
five (5) years of the Effective Date of this Agreement, whichever is earlier, equal less
than the aforementioned 10% goal, then Developer shall make a cash contribution to the
City's Public Parks and Open Space Trust Fund, as contemplated under Article
3.1.4.4(b)(3) of Miami 21, at the rate of $10.81 per square feet for the square footage
comprising the difference between the 10% Open Space goal and the actual Open Space
actually provided at or above the minimum requirement of 6.5% of Open Space on the
Property.
8. Permitting. Section 33(c) of the Flagler Development Agreement is hereby
added as follows:
"Cooperation; Expedited Permitting and Time is of the Essence.
(c) Following the recordation of the Flagler Development Agreement, the City
adopted a new Section 2-208 of the City Code, which is hereby incorporated into this
Flagler Development Agreement as follows:
No approval or permit may be issued for a unit or premise within a Building,
where the unit or premise is the subject of an ongoing city code enforcement
procedure, is the subject of any building violation(s), or has any City lien or
invoice due and owing to the City, unless the permit or approval is required to
cure life safety issues or to bring outstanding violations into compliance. If a
permit required to cure an existing violation has been applied for, additional
permits, approvals and hearings may be issued and/or scheduled for the unit or
premise that is the subject of violations or monies owed. For the purpose of this
subsection, code compliance proceedings shall not be considered pending if the
Code Compliance Department or Unsafe Structures Division has determined the
violation to have been abated and if unpaid, the violation is pending a mitigation
hearing as outlined in the City Code.
9. Temporary/Special Events. The Flagler Development Agreement is hereby
amended by adding the following as a new Section 40:
Section 40. Temporary Events/Special Events.
(a) To the extent governed by the laws and regulations of the City of Miami, the City
Commission hereby finds and agrees that the following special events constitute
ancillary uses of the Retail Street Project and therefore do not require a temporary or
special event permit: event banners, farmers' markets, grand openings, holiday sales,
outdoor sales, ground breakings, and neighborhood sales events, retail promotional
events, tenant events, fundraisers and other similar events so long as the event will
not exceed seventy five percent (75%) of the maximum permitted occupancy,
inclusive of Open and Civic Space. Although no special or temporary event permit is
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required for the foregoing events, Developer and/or its tenants may at their discretion
submit an application to the City of Miami Office of Film and Entertainment for such
permit. The Office of Film and Entertainment shall review and process such
application and issue special or temporary event permit(s), or other such permit as
appropriate.
For events which Developer or its tenant anticipates to exceed seventy five percent
(75%) of the maximum permitted occupancy, inclusive of Open and Civic Space,
Developer or its designee, shall submit an application for a (i) temporary event permit
or (ii) if such event requires a street closure, takes place on City Property, or alcohol
will be served, a special events permit. Such application shall be submitted for
review to the City of Miami Office of Film and Entertainment (or successor
department, if applicable) no less than thirty (30) working days prior to the date of
any such event. The City agrees to complete its review within thirty (30) working
days of the submittal of the required application to ensure coordination of needed
City services and avoid possible adverse impacts due to multiple events occurring
within the immediate and surrounding area. Special and temporary events can take
place any day of the week, regardless of mechanical rides. There shall be no limit to
the number of special or temporary event permits that can be obtained in a calendar
year. Each individual special or temporary event permit can be valid for up to 14
calendar days. In the event the City amends the process or mechanism to obtain
temporary event permits or special event permits, the Developer may avail itself of
such processes, while maintaining the benefits under this Development Agreement.
The City Commission further finds that the above -listed activities, which shall not
exceed the maximum permitted occupancy of the Retail Street Project, will not:
(i)
substantially interrupt the safe and orderly movement of other
traffic contiguous to the special event;
(ii) substantially diminish routine police service levels to the entire
community;
(iii) unduly interfere with the proper fire and police protection or
ambulance service to areas contiguous to the special event as a
result of the concentration of persons and vehicles;
(iv) interfere with the movement of firefighting apparatus en route to
an emergency call; and
(v) present an unreasonable danger to the health and safety of the
public.
10. Regulating Plan and Concept Book. For avoidance of doubt, all references in the
Development Agreement to the "Regulating Plan" and the "Design Concept Book" shall mean
the Regulating Plan and Design Concept Book as amended and adopted by the City Commission
on , pursuant to Ordinance No.
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11. Miscellaneous. This Amendment and the obligations of the parties hereunder
shall survive any conveyance of the Property and shall be binding upon and inure to the benefit
of the parties hereto and their respective legal representatives, successors and assigns. The
Flagler Development Agreement, as modified by this Amendment, remains in full force and
effect and is hereby ratified by the parties.
[Signatures follow]
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IN WITNESS hereof the parties have caused this Agreement to be duly entered into and
signed as of the date written above.
Witnesses:
Print Name:
Print Name:
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
)
FLAGLER HOLDING GROUP, INC.
a Florida for -profit corporation
By:
Print Name: Ricardo Dunin
Title: President
ti
The foregoing instrument was acknowledged before me by means of 0 physical
presence or 0 online notarization, this day of , 2023, by Ricardo Dunin,
as President of FLAGLER HOLDING GROUP, INC. He is personally known to me or who
produced as identification.
My commission expires:
NOTARY PUBLIC, State of Florida
Print Name:
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IN WITNESS hereof the parties have caused this Agreement to be duly entered into and
signed as of the date written above.
Witnesses:
Print Name:
Print Name:
STATE OF FLORIDA
COUNTY OF MIAMI-DADE )
DD 4200 LLC, a Florida limited liability
company
By:
Print Name: Ophir Sternberg
Title: Manager of OZ HOLDINGS OF
MIAMI, LLC, the Manager of
LIONHEART MANAGEMENT LLC, the
Manager of 4200 NE 2ND AVENUE
VENTURES LLC, the Manager of DD 4200
LLC
The foregoing instrument was acknowledged before me by means of ❑ physical
presence or ❑ online notarization, this day of , 2023, by Ophir Sternberg,
Manager of OZ HOLDINGS OF MIAMI, LLC, the Manager of LIONHEART MANAGEMENT
LLC, the Manager of 4200 NE 2ND AVENUE VENTURES LLC, the Manager of DD 4200
LLC, a Florida limited liability company. He is personally known to me or produced
as identification.
My commission expires:
NOTARY PUBLIC, State of Florida
Print Name:
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IN WITNESS hereof the parties have caused this Agreement to be duly entered into and
signed as of the date written above.
Witness:
Print Name:
Print Name:
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
THE CITY OF MIAMI,
a municipal corporation of the State of
Florida
By:
Print Name:
Title: City Manager
The foregoing instrument was acknowledged before me by means of 0 physical
presence or 0 online notarization, this day of , 2023, by
, in his/her capacity as City Manager of the City of Miami, a municipal
corporation of the State of Florida. He/she is personally known to me or produced
as identification.
My commission expires:
NOTARY PUBLIC, State of Florida
Print Name:
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Exhibit "A"
Legal Description of Existing Property
Map #48: 4218 (Flagler)
SUBJECT PROPERTY
STREET ADDRESS: 4218 NE 2nd Avenue (Folio No. 01-3124-024-0940)
SUBJECT PROPERTY
LEGAL DESCRIPTION:
Lot 2, 3 and 4, Block 6, BILTMORE, according to the Plat
thereof, as recorded in Plat Book 6, at Page 67, of the
Public Records of Miami -Dade County, Florida.
Note: Map # references relate to Pg. A1.4 and A1.5 of the Miami Design District Retail
Street Special Area Plan Concept Book.
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Map #47: 4200
SUBJECT PROPERTY
STREET ADDRESS:
SUBJECT PROPERTY
LEGAL DESCRIPTION:
Exhibit "B"
Legal Description of 4200 Property
4200 NE 2nd Avenue (Folio No. 01-3124-024-0930)
Lot 1, less the East 5 feet thereof, Block 6, of BILTMORE,
according to the Plat thereof, as recorded in Plat Book 6, at
Page 67, of the Public Records of Miami -Dade County,
Florida.
Note: Map # references relate to Pg. A1.4 and A1.5 of the Miami Design District Retail
Street Special Area Plan Concept Book.
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Map #49: 4240
SUBJECT PROPERTY
STREET ADDRESS:
SUBJECT PROPERTY
LEGAL DESCRIPTION:
Exhibit "C"
Legal Description of 4240 Property
4240 NE 2nd Avenue (Folio No. 01-3124-024-0950)
Lot 4, less the East 5 feet thereof, in Block 6, BILTMORE,
according to the Plat thereof, as recorded in Plat Book 6, at
Page 67, of the Public Records of Miami -Dade County,
Florida.
Note: Map # references relate to Pg. A1.4 and A1.5 of the Miami Design District Retail
Street Special Area Plan Concept Book.
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Exhibit "D"
Miami Design District Retail Street SAP Regulating Plan and Design Concept Book
The current versions of the Miami Design District Retail Street SAP Regulating Plan and
Design Concept Book were approved by the City Commission on , 2023
under Ordinance No. . Copies of the Regulating Plan and Design Concept Book
approved under this legislation are on file with the City of Miami and are incorporated
herein by reference.
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