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HomeMy WebLinkAboutSubstitution Memo from Planning DepartmentCITY OF MIAMI, FLORIDA INTER -OFFICE MEMORANDUM TO: Arthur Noriega V, City Manager DATE: December 11, 2023 FROM: David Snow SUBJECT: Substitution of PZ.16 — Design District SAP Assistant Director, Planning Department Development Agreement ENCLOSURE: Updated Development Agreement Purpose The purpose of this Substitution Memorandum is to update Exhibit B for Item PZ.16 scheduled on the December 14, 2023 City Commission Agenda. The item (File ID 14837) is an Ordinance to adopt a new Development Agreement for new properties added to the existing Miami Design District SAP. Staff has worked closely with the applicant to resolve changes and provide additional updates to the Development Agreement document titled b. 14837 — Exhibit B to include the following updates: Cleanup Items (Grammatical errors, update references and numbering) Pages 2-5, 7-8, 15, 21, 25, and 28 Removed Language Pages 1, 9, 18, 20 and 26 Added Language Pages 6, 10-19, 23-24 and 27 Attached is the clean version of the updated Development Agreement that is to replace Exhibit B as well as a redline version (sans Exhibits) that shows the changes. Upon approval, the complete Development Agreement between RFD North 39 LLC, RFP North 40 LLC, RFD South 40 LLC and the City of Miami will replace PZ.16 "b. 14837 — Exhibit B" and will be provided to the City Clerk's Office for distribution to the Mayor and all Commissioners. zt} Arthur Noriega V, City Manager I'-� Y9- 4A0-1 m¢nw - no , �l74/1(1 i„3 ,�p4A4.w i- This Instrument Was Prepared By, Record and Return To: Iris V. Escarra, Esq. Greenberg Traurig, P.A. 333 S.E. 2nd Avenue Suite 4400 Miami, Florida 33131 **DRAFT** (Reserved) DEVELOPMENT AGREEMENT BETWEEN THE CITY OF MIAMI, FLORIDA AND RFD NORTH 39 LLC, RFD NORTH 40 LLC, RFD SOUTH 40 LLC, REGARDING APPROVAL OF THE MIAMI DESIGN DISTRICT RETAIL STREET SPECIAL AREA PLAN This is a Development Agreement ("Agreement") made this day of , 2023 by and between RFD North 39 LLC, RFD North 40 LLC, RFD South 40 LLC, Florida limited liability companies (collectively, the "Developer"), and the City of Miami, Florida, a municipal corporation and a political subdivision of the State of Florida (the "City") (the Developer and the City are together referred to as the "Parties"). WHEREAS, the Developer is the owner of certain properties as more fully described in Exhibit A, attached and incorporated herein (collectively, the "Subject Property"); and WHEREAS, the Miami Design District (the "District") spans an area:generally bounded on the east by Biscayne Boulevard, south by NE 38th Street, on the wgpy North Miami Avenue, and on the north by NE 40th Street; and 2aR rai ""C 00 m c3 WHEREAS, the status of the District is consistent with the City's visiomto delop a world class destination for the arts, fashion, and design, and, as such, the City wishes to encourage redevelopment within the District; and WHEREAS, the development of multi -family residential housing and lodging uses Miami Design District SAP RFD Development Agreement within the District will complement existing retail and restaurants, encourage pedestrian activity, and provide additional housing and lodging options in the urban core proximate to local and regional transportation; and WHEREAS, a process exists within the City's zoning code ("Miami 21"), known as a "Special Area Plan" or "SAP," which allows parcels of more than nine (9) abutting acres to be master planned to allow greater integration of public improvements and infrastructure, and greater flexibility so as to result in higher or specialized quality building and streetscape design; and WHEREAS, on July 26, 2012, the City Commission approved the Miami Design District Retail Street Special Area Plan ("SAP") for a 19.08 acre area in the District under Ordinance 13334, and the City subsequently amended the SAP, which was subsequently amended; and WHEREAS, the City and Developer agree that development within the District will proceed substantially in accordance with the Miami Design District Retail Street SAP Regulating Plan and Design Concept Book, as modified on pursuant to Ordinance No. , both of which are attached as composite Exhibit "C" hereto and incorporated herein by reference ("Regulating Plan and Design Concept Book"); and WHEREAS, the City and Developer agree that development of the Subject Property will proceed in a manner consistent with the Miami Comprehensive Neighborhood Plan ("Comprehensive Plan") and the City's land development regulations; and WHEREAS, on _ _ the City Commission approved the fifth amendment to the SAP under Ordinance No. that added the Subject Property and the properties generally located at 27 NW 39 Street, and 3801/3819 N Miami Avenue to the SAP, as amended, increasing the total area to approximately 25.49i acres; and WHEREAS, Sec. 3.9.1 of Miami 21 requires development within the S o our 111 pursuant to a recorded development agreement between the property owner(s) aftethe C`iy; and -x-' WHEREAS, the Developer seeks to have the Subject Property included within the SAP and subject to the regulations applicable within the SAP and proffers this Development Agreement (the "RFD Development Agreement" or "Agreement") in accordance with the requirements of Section 3.9.1 of Miami 21; and WHEREAS, Chapter 163, Florida Statutes (2022), authorizes and provides for 2 Miami Design District SAP RFD Development Agreement local governments to enter into development agreements with any person or entity having a legal or equitable interest in real property located within its jurisdiction; and WHEREAS, the RFD Development Agreement will govern development of the Subject Property; and WHEREAS, the Ci SAP Regulating Plan and Design Concept Book, as modified on b .t WHEREAS, lack of certainty in the approval of development can result in a waste of economic and land resources, discourage sound capital improvement planning and financing, escalate the cost of housing and development, and discourage commitment to comprehensive planning; and WHEREAS, assurance to the Developer that they may proceed in accordance with existing laws and policies, subject to the conditions of a development agreement, strengthens the public planning process, encourages sound capital improvement planning and financing, assists in assuring there are adequate capital facilities for the development, encourages private participation in comprehensive planning, and reduces the economic costs of development; and WHEREAS, the modifications identified above will ensure the continued vitality of the District, and provide additional employment opportunities for the neighborhood and region; and WHEREAS, the City Commission, pursuant to Ordinance No. adopted , 2023 has authorized the City Manager to execute' this Agreement upon substantially similar terms and conditions as set forth herein belo`au, ai the Developer has been duly authorized to execute this Agreement upon the tertiis a conditions set forth below. `-{C-0 `7 caw NOW THEREFORE, in consideration of the mutual covenants and agiteemcrilts hereinafter contained, the Parties mutually agree and bind themselves as set fort„r rf eir3L 1. Consideration. The Parties hereby agree that the consideration and oblr ^ atico's recited and provided for under this Agreement constitute substantial benefits-o both Parties and thus adequate consideration for this Agreement. 2. Rules of Legal Construction. For all purposes of the Agreement, unless otherwise expressly provided: (a) A defined term has the meaning assigned to it; 3 s'j Miami Design District SAP RFD Development Agreement (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 terms 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 the 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 attachments and this Agreement. 3. Definitions. Capitalized terms which are not specifically defined herein shall have the meaning given in Miami 21. "Agreement" means this Development Agreement between the City and, the-, Developer. rn rT3 "City" means the City of Miami, a municipal corporation and a .pp1ticaf' subdivision of the State of Florida, and all departments, agencianqk instrumentalities subject to the jurisdiction thereof. "City Charter" means the municipal Charter of the City of Miami. "City Code" or "Code" means the City of Miami Code of Ordinances.741 3210 "Comprehensive Plan" means the comprehensive plan known as the Miami Comprehensive Neighborhood Plan, adopted by the City pursuant to Chapter 163, Florida Statutes (2022), meeting the requirements of Section 163.3177, Florida Statutes (2022), Section 163.3178, Florida Statutes (2022) and Section 163.3221(2), Florida Statutes (2022), which are in effect as of the Effective Date. "Concept Book" means the Concept Book prepared by Arquitectonica, dated , and attached as Exhibit C. "County" means Miami -Dade County, a political subdivision of the State of Florida. "Development" means the carrying out of any building activity, the making of any material change in the use or appearance of any structure or land, or the 4 ri Miami Design District SAP RFD Development Agreement dividing of land into three (3) or more parcels and such other activities described in Sections 163.3221(4) and 380.04, Florida Statutes (2022). "Development permit" 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. "Effective Date" means the date of recordation of the executed, original version of this Agreement. "Existing Zoning" is (a) Miami 21 Code, specifically including the Miami Design District Retail Street SAP Regulating Plan and Design Concept Book, and related modifications to the Transect designations of lots within the SAP Area, and (b) the provisions of the City Charter and City Code which regulate development, as amended, which together comprise the effective land development regulations governing development of the SAP. "Land" means the earth, water, and air, above, below, or on the surface and includes any improvements or structures customarily regarded as land. "Land Development Regulations" shall be as defined in Chapter 62, Section 62-11 of the City Code of Ordinances and includes the City's Comprehensive Pl l regulations and Miami 21. csr`i c� "Laws" means all ordinances, resolutions, regulations, comprehensive plads:,lan development regulations, and rules adopted by a local government affeei �; thfi) development of land. =�mr'. "Miami 21" also known as the Miami 21 Code means City Ordinance 13'1p�,w�v a lcd, as amended through the Effective Date, which is the Zoning Ordinalot..a the City of Miami. "Property Interest" any ownership interest in any SAP Property. "Public Facilities" means major capital improvements, including, but not limited to, transportation, sanitary sewer, solid waste, drainage, potable water, educational, parks and recreational, streets, parking and health systems and facilities. "SAP Area" means the lots and properties which comprise the SAP as depicted on the boundary map and legal descriptions attached as Exhibit B and as depicted on Sheets A1.4 and A1.5 of the Concept Book. "Special Area Plan" or "SAP" refers to the Miami Design District Retail Street Special Area Plan, including the Regulating Plan and Concept Book. Miami Design District SAP RFD Development Agreement 4. Purpose. The purpose of this Agreement is for the City to authorize the Developer to redevelop the Subject Property pursuant to the SAP. This Agreement will establish, as of the Effective Date, the land development regulations that will govern the development of the Subject Property, thereby providing the Developer with additional certainty during the development process. This Agreement satisfies the requirements of Section 3.9.1(f), Miami 217 and Florida Statutes s. 163.3220 - 163.3243. 5. Intent. The Developer and the City intend for this Agreement to be construed and implemented so as to effectuate the purpose of the Miami Design District Retail Street SAP, this Agreement, the Comprehensive Plan, Existing Zoning, and the Florida Local Government Development Agreement Act, s. 163.3220 - 163.3243, Florida Statutes (2022), all of which are applicable to this Agreement. 6. Legal Description of Land, Names of Legal Owners, Applicability. This Agreement only applies to the Subject Property, as identified and legally described in Exhibit A. The Subject Property's legal and equitable owners are listed along with the legal descriptions in Exhibit A. 7. Term of Agreement, Effective Date and Binding Effect. This Agreement shall have a term of thirty (30) years from the Effective Date and shall be recorded in the public records of Miami -Dade County and filed with the City Clerk. The term of this Agreement may be extended by mutual, written consent of the Parties subject to public hearing(s), pursuant to Section 163.3225, Florida Statutes (2022). The Developer shall bear the advertising and related noticing costs of such public hearing(s). This Agreement shall become effective on the Effective Date and shall constitute a covenant running with the land that shall be binding upon, and inure to the benefit of the Parties, their successors, assigns, heirs, legal representatives, and personal representatives. s .40 rn 8. Zoning Permitted Development Uses, Building Densities and Intensitiesiri (a) Miami Design District Retail Street SAP Designation. The 6 designated the Subject Property as being located within the "Mian esi n District Retail Street SAP" on the official Zoning Atlas of the City;,;pIirsuant to the applicable procedures in Miami 21. The Regulating Plan annceiQ Book provide for any deviations from the underlying regulations of Mini In approving the SAP, the City has determined that the uses, intensits and' densities of development permitted there under are consistent with the Comprehensive Plan and the Existing Zoning. Deviations to the regulations in the City Code are articulated further in this Agreement. Where the standards in the Regulating Plan, Concept Book and/or Development Agreement are silent, the underlying Miami 21 standards and requirements shall apply. Any amendments to, or recission of, the underlying Miami 21 after the [DATE OF ADOPTION] that negatively impact or downzone any portions of the Subject Property shall not apply. 6 Miami Design District SAP RFD Development Agreement (b) Density, Intensity, Uses and Building Heights. As of the Effective Date and pursuant to the SAP, the density and intensity proposed for the SAP are permitted by the Existing Zoning and are consistent with the Comprehensive Plan. Adjacent and non -adjacent parcels within the SAP Area which have unutilized density or unutilized FLR, located within the T6 Urban Core transect zone ("T6 Properties") may transfer such unutilized density or unutilized FLR ("Remaining Aggregate Density" or "Remaining Aggregate FLR") to other T6 Properties within the SAP Area, provided however that each individual project on those T6 Properties must comply with the limits imposed by the SAP Regulating Plan and the Comprehensive Plan. Notwithstanding the forgoing, density and intensity shall be counted on an aggregate basis for all T6 Properties located within the SAP; such that the total aggregated density and intensity throughout the T6 Properties shall not surpass the aggregated as -of -right maximum (i.e. base) density and intensity permitted in the underlying T6 Properties. Aggregated density and intensity, as well as the Remaining Aggregate Density and Remaining Aggregate FLR will be tracked via an aggregated rights tracking sheet ("Tracking Sheet") and reviewed annually as part of the Annual Review process as indicated in Section 1-427. ii. As of the Effective Date and pursuant to the SAP, the UscsDensities proposed for the SAP are permitted by the Existing Zoning and are consistent with the -Miami 21 and the presently adopted Miami Comprehensive Neighborhood Plan (the "Comprehensive PlanD. iii. As of the Effective Date and pursuant to the SAP, the Heigl tsUses proposed for the SAP are permitted by the Existing Zoning and are consistent with Miami 21 the Comprehensive Plan. iv. -a-n dAs of the densitiesEffective Date and pursuant to the SAP, the Heights proposed for the SAP are permitted by the Existing Zoning and are consistent with r..s ib "Miai 21 bd the Comprehensive Plan"4. z.y€` i t 1.1 v. iv: -Nothing herein shall prohibit the Developer from rei e3tina change of zoning, pursuant to Article 7 of Miami 21, txTi�rccre r� the density or intensity of development permitted y gig underlying Transect designation of that certain propert frirmillfg part of the Miami Design District Retail Street SAP by amend the SAP and this Agreement. N7 vi. v-.-SAP Properties having an underlying transect designation of T6 7 Miami Design District SAP RFD Development Agreement Urban Core are eligible to transfer unutilized density or FLR between development sites, up to the maximums set forth in the Regulating Plan. This process is separate and apart from the Public Benefits Program set forth in Section 3.14 of Miami 21 and Section 3.14 of the Regulating Plan vii. v,i,The City's Comprehensive Plan currently permits the transfer of densities within certain specified areas s-to permit densities in excess of the density limits set forth in a particular Future Land Use Map category. Nothing herein shall prohibit the Developer from requesting such density transfers within the SAP, in the event the City adopts Land Development Regulations related to the Transit Sheds or Transit Oriented Development areas. 9. Prohibition on Downzoning. (a) The Comprehensive Plan, this Agreement, and the SAP shall govern development of the Subject Property for the duration of the Agreement. The City's Laws and policies adopted after the Effective Date may be applied to the Subject Property only if the determinations required by Section 163.3233(2), Florida Statutes (2022) have been made after thirty (30) days written notice to the Developer and after a public hearing or as otherwise provided herein. (b) Pursuant to Section 163.3233(3), Florida Statutes (2022), this prohibition on downzoning supplements, rather than supplants, any rights that may vest to the Developer under Florida or Federal law. As a result, the Developer reserves the right to challenge any subsequently adopted changes to land development regulations which are in derogation of this Agreement on (a) common law principles including. but not limited to, equitable estoppel and vested rights, or (b) statutory rights which may accrue by virtue of Chapter 70, Florida Statutes (2022). c: 10. Public Facilities. In the event that the Existing Zoning or the Comprehensive Plan `-. requires the Developer to provide additional Public Facilities to address-. any cr 5 deficiencies in levels of service at the time of obtaining the required building c i permits, the Developer will provide such Public Facilities consistent with the-teringN t requirements of Section 163.3180, Florida Statutes (2022).-The Developer-a-1--be �- ,a •€ reco rdation of this Agrecinc..t co r— r) 11. Reservation of Land Dedicated for Public Purposes. As proposed in the Contlpt Book, as amended, a minimum of five percent (5%) of the Subject Property is reserved as land dedicated for a public purpose as a Civic Space Type as detailed in Section 3.9.1(e) of Miami 21. 8 Miami Design District SAP RFD Development Agreement 12. Future Development Review. Future development within the SAP Area shall proceed pursuant to the process established in the Regulating Plan and Concept Book. The criteria to be used in determining whether future development shall be approved are consistency with the Comprehensive Plan, Miami 21, this Agreement, and consistency with the SAP, as applicable. 13. Environmental. The City finds that the redevelopment of the Subject Property will confer a significant net improvement upon the publicly accessible tree canopy in the area by providing trees at the Subject Property. The City and the Developer agree that the Developer will comply with the intent and requirements of Chapters 17 and 62 of the City Code, and Article 9 of Miami 21, by performing tree replacement as follows. (a) Off -site replacement trees. Notwithstanding the requirements of Section 17-6(e) of the City Code, where tree replacement within the Subject Property is not possible, the Developer may enter into an agreement with the City to perform tree replacement on public property in the following order of priority: (i) within the SAP Area's Open Space and Civic Spaces; (ii) within a one (1) mile radius of the SAP Area;;—er within the same City Commission District as the Subject Property, currently City Commission District 5 as defined by the City Clerk; (iii) within any City park within same City Commission District as the Subject Property, currently City Commission District 5 as defined by the City Clerk and subject to approval by the City, or (iv) within any City park outside of the same City Commission District as the Subject Property, currently City Commission District 5 as defined by the City Clerk subject to approval by the City. The City further agrees to facilitate the permitting and planting of replacement trees on all publicly owned property within the SAP Area, within a one (1) mile radius of the SAP Area and within City parks. The Developer undertaking tree replacement off -site for any parcel of land within the SAP Area shall agree to water, trim, root, prune, brace, or undertake any other necessary maintenance as may be required by the Public Works Department for a period of not greater tht thi tyone (3O1) d-aysyear after installation. The Developer undertakbig az , off -site tree replacement further agrees to warrant each such,..: f-sib, replacement tree for a period of one (1) year after the date of installafi6p: -- (b) Subject Property tree installation. maintenance and guarantee. For_all tree placed within the SAP Area, Developer placing such trees shall install arm needed irrigation and corresponding water meters to support the groiMh q4 trees located within the right-of-way. The Developer undertaking '' tret� replacement for any parcel of land shall agree to water, trim, root, prune, brace, or undertake any other necessary maintenance as may be required for trees located within the SAP Area. The Developer undertaking any such tree placement within the SAP Area further agrees to warrant each SAP Area tree for a period of one (1) year after installation. 9 Miami Design District SAP RFD Development Agreement (c) Tree installation. The tree replacement chart below shall be used to determine whether Developer has satisfied the tree replacement requirements for any particular parcel of land as set forth in Sec. 17-6.(a) of the City Code. The chart below shall replace and supersede Chart 17.6.1.1. in the City Code. Tree Replacement Chart Total diameter of tree(s) to be removed (sum of inches at DBH) Total inches of replacement DBH required (12' minimum tree height) 2"- 3" -rt 4"- 6" 4" 7"- 12" 8" 13"- 18" 12" 19"- 24" 16" 25"- 30" 20" 3 I "- 36" 24" 37"- 42" 28" 43"- 48" 32" 49"- 60" 40" Replacement shall be of minimum replacement size at two (2) inches DBH and twelve (12) feet overall height. To determine whether the replacement requirements have been satisfied, calculate the total sum in inches of the diameter of the trees removed. The size of the replacement trees diameter at breast height (DBH) must equal the total inches of replacement DBH set forth in the above chart. Diameter measurement shall be rounded up to the nearest inch. if the sum of the diameter of trees to be removed exceeds a total of 60 inches, the additional inches shall be added cumulatively from the top of the chart, down to the bottom of the chart, to calculate the number of DBH for replacement trees. (d) Tree species. The chart set forth below shall replace and supersede Chart 17.6.2.1. in the City Code. All other requirements set forth in Sec. 17-6.(Iof the City Code shall apply within the SAP Area. Required total DBH for replacement trees Required minimum number of 4-) species r.y 22"- 40" 2 n . ca 41"- 100" 4 i 101" or greater 6 rn _.,,t (5) Tree installation. Developer shall install trees opportunistically within the public right-of-way, subject, at all times. to approval by the Department of Public Works. 10 Ti • s�1 0 Miami Design District SAP RFD Development Agreement 14. Connectivity and Activity within Public Right -of -Way. (a) Connectivity. A critical element to the success of the Subject Property within the SAP is the connectivity and pedestrian overpass across NE 40th Street as generally depicted on Sheet A-2.2 of the Concept Book (i.e. above grade pedestrian bridges) within the public right-of-way. The redevelopment of the Subject Property which may include below-g-rtie a pedestrian overpass across NE 401h Street as generally depicted on Sheet A-2.2 of the Concept Book will facilitate ease of access, minimize pedestrian and vehicular conflicts, and reduce traffic impacts by enhancing internalized traffic circulation, reducing off -site impacts, and expanding parking capacity within the District. The Developer recognizes that such connectivity and commercial usage may require approval of other governmental agencies such as Miami -Dade County. The City finds and determines that establishing such connectivity serves a public purpose, and further agrees to support the Developer's efforts to obtain any authorization to establish such below -grade and/or elevated connection where the approval of another governmental agency may be necessary. The City further finds that the authorization of such a connection helew aii4 -above the public right-of-way shall in no way diminish access for firefighting apparatus or rescue and salvage operations; diminish traffic, transportation and circulation; or adversely impact the advancement of the safety, health, and general welfare within the City. Given the public benefits conferred upon the City by such pedestrian overpass across NE 40th Street as generally depicted on Sheet A-2.2 of the Concept Book and through this Agreement, the provisions of Sec. 54-186 prohibiting such encroachments beyond the City's established Base Building Line shall not apply to the Miami Design District Ret„aii Street SAP. fb)i �rrt Ei-f �` � t'1�'isv�.uir�Y�#-- 1iniitati'on s set forth -in Stec-54 1-86 o1-the Code—as-amcn�carcr he ^, a.. bare buli Ling line ,.l „to the ubl:. rgho f „•.,.. er i tt I ,,.b t - �t a co (eb) Construction of encroachments within the Public Right -of -'Way. tThee---1 Developer proposes a pedestrian overpass across NE 40th Strut as generally depicted on Sheet A-2.2 of the Concept Book. The City finds that the encroachments proposed by the Developer do not unduly restrict the use of the public right-of-way and are an essential element in the construction of the vehicular underpass and/or overpass within the same rights -of -way. The adoption of this Agreement shall serve to satisfy the 11 Miami Design District SAP RFD Development Agreement requirements set forth in Sec. 55-14(b) of the City Code. All proposed encroachments will comply with the regulations and restrictions of the Florida Building Code. -- b e—publ-ice ts� of way--a-rttl—the—use—of t Further, this Agreement shall satisfy the requirements of Sec. 55-14(d) of the City Code. In consideration for authorizing the construction of the aforementioned encroachments, the Developer further covenant to: (1) Maintain the h passespedestrian overpasses in accordance with the Florida Building Code and the City Charter and Code. (2) Provide an insurance policy, in an amount determined by the city's risk manager, naming the City as an additional insured for public liability and property damage. The insurance shall remain in effect for as long as the encroachment(s) exist within the right-of-way. Should the Developer fail to continuously provide the insurance coverage, the City shall have the right to secure similar insurance policy in its name and place a special assessment lien against the owner's abutting private property for the total cost of the premium. (3) The Developer shall hold harmless and indemnify the City, its officials and employees from any claims for damage or loss to property and injury to persons of any nature whatsoever arising out of the use, construction, maintenance or removal of the pedestrian overpass, and from and against any elaiws which may arise out of the granting of permissiion'.forhe encroachment or any activity performed under the teafs othis rj Agreement.rn (3) ry (4) No Cit.. Place,, nt of Commun .,tio„s Ki sk.s i., order t,,-41. itah-e, + ot orsimiJa-r-interaet-iv e-dev=iees-as deseribed in -Sect} -of Te :, the SAP. 15. Alcoholic Beverage Sales. Upon approval of this Agreement, the distance separation requirements pursuant to Chapter 4 of the City Code, shall not apply to the Subject Property from an Alcohol Service Establishment located either within 12 '4 t rn Miami Design District SAP RFD Development Agreement the District or outside the District. Developer agrees that an Alcohol Service Establishment at the Subject Property will not be considered for distance separation requirements for any Alcohol Service Establishments outside the District. Each Alcohol Service Establishment permitted at the Subject Property, exclusive of bona fide, licensed cafes, restaurants, and other establishments where the sale of alcoholic beverages is incidental to the principal use of the sale of food, shall be permitted pursuant to the requirements of the Miami Design District Street Regulating Plan, attached hereto as part of Exhibit "BC", and any applicable provision of Chapter 4 of the City Code not in conflict with the provisions of this Agreement. 16. Valet Parking. The Developer may utilize the uniform valet system located within the District to service the Subject Property generally, or may seek its own valet permits. Notwithstanding the limitations set forth in Sec. 35-305 of the City Code, a maximum of two (2) valet permits may be issued for the operation of a valet parking ramp on the same side of the block at the Subject Property. 17. Temporary/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 within the SAP and therefore do not require a temporary or special event permit: event banners. farmers' markets, grand openings, holiday sales, outdoor sales, ground breakings, 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 ands ivie Space or (2,100) two thousand one hundred guests, whichever is.ess4 Although no special or temporary event permit is required for the :f�bin events, Developer and/or its tenants may, at their discretion, su1 t atf-' application to the City of Miami Office of Film and Entertainment fruc permit. The Office of Film and Entertainment shall review and proom$uch,, application and issue special or temporary event permit(s), or otluc permit as appropriate. —r-, co N Notwithstanding the above, for events which Developer and/or its f nantt anticipates to exceed seventy five percent (75%) of the maximum permitted occupancy, inclusive of Open and Civic Space or (2,100) two thousand one hundred guests. whichever is less, the Developer, or its designee, must 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, with Fire Department review. 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 13 'i Miami Design District SAP RFD Development Agreement 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 fourteen (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. (b) Notwithstanding the requirements of Section 62-535, a TemporargUs; Permit ("TUP") can be issued for a maximum of three (31 years.VU can be extended annually by the zoning administrator for up to __ 1 years, thereafter further requests for extensions must be approved? thg3 City Commission. Areas under a TUP shall not require parking. Rites for TUPs shall be accompanied by a hurricane preparedness p1 „i io b� reviewed and approved by the City's Building Department. rko (c) Food trucks shall be permitted to operate on private land within tl SAT and the distance separation requirements set forth in Section 31-51(c)(4) of the City's Code of Ordinances shall not apply within the SAP. Food trucks and Food truck gatherings shall be permitted to park overnight and present at the same location up to seven days a week upon submittal of (i) a notarized letter of approval from a Developer Party and (ii) site plan approval via SAP permit, with Fire Department review; such Food truck 14 Miami Design District SAP RFD Development Agreement or Food truck gatherings do not require a temporary event permit, special event permit or a temporary use permit. There is no limit to the number of Food truck gatherings that can occur monthly. Existing public restrooms within the SAP will generally satisfy the requirement to provide bathroom facilities for Food trucks and Food truck gatherings, unless additional bathrooms are found to be required in the site plan approval via SAP permit. Food truck operators will provide waste disposal for patrons and keep the area surrounding the Food truck(s) clear of waste and debris resulting from their services. 18. Public Benefits. (a) Civic Space. A minimum of 5% of the Subject Property will be reserved as Civic Space. (b) Civic and Open Space Improvements. The Developer will provide improvements to the Civic Space and Open Space at the Subject Property, conferring a benefit on the general public and patrons of the SAP Area. The Developer shall strive to provide a minimum of ten percent (10%) of Open Space, but in no event less than six and a half percent (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 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 within the Subject Property within five (5) years of the Effective Date equal less than the aforementioned 10% goal, then the Developer shall make a cash contribution to the City's Public Parks and Open Space Trust Fund at the rate of $10.81 per sq. ft., as contemplated under Sec. 3.14.4(b)(3) o Miami 21, for the square footage comprising the difference between the 10% Open Space goal and 'the r minimum requirement of 6.5% S (c) North Miami Avenue. The Developer will activate the North Miami Avenue frontage at the Subject Property with an enhanced pedestrian experience = including, but not limited to, direct pedestrian access, open spacesr.,e.i engaging facade treatments, and/or art installation, as North Miami Av ilue� serves as the main North/South connector within the City. (d) Expansion of the District. The Developer is extending the highly successful District to the West, expanding the high-guulityhigh-quality development for which the District is renowned. (e) Job Creation and Employment Opportunities. Generally, the Developer shall 15 Miami Design District SAP RFD Development Agreement consult with local and state economic development entities regarding job training and job placement services for area City residents seeking employment opportunities with potential employers within the Subject Property. (f) Street Right of Way Improvements. Developer agrees to implement the non-standard right-of-way improvements adjacent to and abutting the Subject Property by replicating or complementing the street right-of-way improvements implemented elsewhere within the boundaries of the SAP (the "Street Improvements"). Developer agrees to construct and maintain, at its sole cost and expense, such non-standard improvements in order to foster a uniform aesthetic throughout the SAP. Redevelopment of the Subject Property will also require infrastructure improvements as required under the City Code. 19. Compliance With Fired and Life Safety Laws. The Developer shall at all times in the development and operation of the Subject Property comply with all applicable laws, ordinances and regulations including life safety codes to insure the safety of all Subject Property and City residents and guests. Specifically and without limitation, the Developer will install and construct all required fire safety equipment and water lines with flow sufficient to contain all possible fire occurrences. 20. Local Development Permits. The redevelopment of the Subject Property may require additional permits or approvals from the City and any division thereof. Subject to required legal process and approvals, the City shall make a good faith effort to take all reasonable steps to cooperate with and facilitate all such approvals. Such approvals include, without limitation, the following approvals and permits and any successor or analogous approvals and permits: (a) Waiver(s), Warrant(s), Exception(s), Variances, or SAP Permits; (b) Subdivision plat and/or waiver of plat approvals; (c) Public Works approvals; (d) Street Vacations and Closures; ...„1 e) Covenant or Unityof Title acceptance and the release of anyexisting1?jttesG1 ( p., Covenants or Declarations of Restrictions; t „ '" : r �- N „ 1d (f) Water and Sanitary Sewage Agreement(s); c-a :re. ra co 0 (g) Paving and Drainage Plans and Permits; cp-,., 11 CO (h) Tree Removal Permits; 16 Miami Design District SAP RFD Development Agreement (i) Demolition Permits; (j) Environmental Resource Permits; (k) Miami -Dade (and if applicable, City) Transit approvals; (1) Federal Aviation Administration and Miami -Dade Aviation Department determination(s) and approval(s); (m) Right of Way Encroachment permits or licenses; (n) Miami Parking Authority approvals; (o) Building permits; (p) Certificates of use and/or occupancy; (q) Temporary Use permits (r) Stormwater permits (s) Temporary Fence permits (t) Maintenance of Traffic approvals; and (u) Any other official action of the City, County, or any other government agency having the effect of permitting /regulating development of the SAP Area. In the event that the City substantially modifies its land development regulations regarding site plan approval procedures, authority to approve any site plan for a project in the Subject Property shall be vested solely in the City Manager. with the prior, written recommendation of the Planning Director. Any such site plan shall be approved if it meets the requirements and criteria of the Existing Zoning, the Comprehensive Plan and the terms of this Agreement. 21. Necessity of Complying with Regulations Relative to Development Permits. The Developer and the City agree that the failure of this Agreement to address a 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 permitting requirements, conditions, fees, terms, licenses, or restrictions. Pursuant to Section 163.324I, Florida Statutes (2022), if state or federal laws are enacted after the execution of this development agreement which are applicable to and preclude the parties' compliance with the terms of this development agreement, this Agreement shall be modified or revoked as is necessary to comply with the relevant state or federal laws. 22. Consistency with Comprehensive Plan. The City finds that development of the 17 Miami Design District SAP RFD Development Agreement SAP Area is in conformity with the Existing Zoning and is consistent with the Comprehensive Plan. In the event that the Existing Zoning or the Comprehensive Plan requires the Developer to provide additional Public Facilities to accommodate the redevelopment of the Subject Property, the Development will provide such Public Facilities consistent with the timing requirements of Section 163.3180, Florida Statutes (2022). 23. Phased Development. The Developer and the City agree that the redevelopment of the Subject Property may be developed by multiple parties in multiple phases over the life of the Agreement. Cooperation, Expedited Permitting and Time is of the Essence. (a) The Parties agree to cooperate with each other to the full 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 City shall use its best efforts to expedite the permitting and approval process in an effort toxassa Developer in achieving its development and construction milestones T1 City will accommodate requests from Developer's general contra arj subcontractors for review of phased or multiple permitting packages,asuc#- as those for excavation, site work and foundations, building shell, iOf , aria) interiors. In addition, the City will designate an individual within1 Cif Manager's office who will have a primary (though not exclusively ter) serve as the City's point of contact and liaison with Developer iin ogr t facilitate expediting the processing and issuance of all permit and li nsX applications and approvals across all of the various departments and offices of the City which have the authority or right to review and approve all applications for such permits and licenses. (a) Notwithstanding the foregoing, the City shall not be obligated to issue development permits to the extent a Developer does not comply with the applicable requirements of the Existing Zoning, the Comprehensive Plan, this Agreement and applicable building codes. 18 Miami Design District SAP RFD Development Agreement hall be :,,.I m . ster building p mits 25. Reservation of Development Rights. (a) For the term of this Agreement, the City hereby agrees that it shall permit the development of the Subject Property in accordance with the Existing Zoning, the Comprehensive Plan. Regulating Plan, Concept Book, and this Agreement. (b) Nothing herein shall prohibit an increase in the density or intensity of development permitted on the Subject Property in a manner consistent with (I) the Existing Zoning and/or the Comprehensive Plan, (2) any zoning change subsequently requested or initiated by the Developer in accordance with applicable provisions of law or (3) any zoning change subsequently enacted by the City. (c) The expiration or termination of this Agreement shall not be considered a waiver of, or limitation upon. the rights, including, but not limited to, any claims of vested rights or equitable estoppel, obtained or held by the Developer or its successors or, assigns to continued development of the Subject Property in conformity with Existing Zoning and all prior and subsequent approved development permits or development orders granted by the City.Jhe City reserves its immunities, defenses and any claims it has as to vested..; igl or equitable estoppel. cl rn 26. Annual Review. (a) The Developer shall provide the City on an annual basis a stattm f the. redevelopment of the Subject Property in order for the City to conducnntnal review of the Development. This requirement shall commence tw ira (1 months after the Effective Date and shall continue throughout the term. rn co rr; (b) During its annual review, the City may ask for additional information not provided by the Developer. Any additional information required of the Developer during an annual review shall be limited to that necessary to determine the extent to which the Developer is proceeding in good faith to comply with the terms of this Agreement. (c) Subject to the applicable terms and provisions of this Agreement, if the City finds on the basis of competent substantial evidence that the Developer intentionally, willfully or negligently failed to substantially comply with the terms, obligations, or conditions of this Agreement, the City may terminate or amend this Agreement after providing thirty (30) days written notice to the Developer unless cured by the Developer prior to the expiration of such 19 Miami Design District SAP RFD Development Agreement thirty(30) day period; provided, however. that if such failure cannot reasonably be cured within thirty (30) days, the Developer shall not be in default if it measurably commences to cure such breach within such thirty (30) day period and diligently pursues the cure to completion. Any termination or modification of this Agreement shall not become effective until the City Commission approves same after holding two (2) duly noticed public hearings. 27. 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 service 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 legal 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 copies to: City Attorney Miami Riverside Center 444 S.W. 2nd Ave., 9th Floor Miami, FL 33130 Department of Planning Miami Riverside Center 444 S.W. 2nd Ave., 3rd Floor Miami, FL 33130 Department of Transportation Miami Riverside Center 444 S.W. 2nd Ave., 9th Floor Miami, FL 33130 To the Developer: RFD North 39, LLC c/o Guillaume Rousson 645 Madison Avenue New York, New York 10065 20 Miami Design District SAP RFD Development Agreement RFD North 40, LLC c/o Guillaume Rousson 645 Madison Avenue New York, New York 10065 RFD South 40, LLC c/o Guillaume Rousson 645 Madison Avenue New York, New York 10065 With copies to: Greenberg Traurig, P.A. Attn: Iris V. Escarra, Esq. 333 SE 2nd Avenue, Suite 4400 Miami, FL 33131 Any Party to this Agreement may change its notification address(es) by providing written notification to the remaining parties pursuant to the terms and conditions of this section. 28. Enforcement. The City, its successor or assigns, and the Developer shall have the right to enforce the provisions of this 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. Th-e ' .Each party shall bear its own respective attorney's fees. 29. Modification. In accordance with the Concept Book and development plans, the redevelopment of the Subject Property may be developed in multiple phases. This Agreement may be modified. amended or released as to any phase, or any portion thereof, by a written instrument executed by the, then, owner(s) of such phase provided that the same is also approved by the City Commission at two (2) publicly noticed hearings. Any application related to a particular phase, or any portion thereof, shall only require the consent, acknowledgment and/or joinder of the then owner(s) of such phase. In the event that there is a recorded homeowners, master, condominium and/or other association covering the property, any phase or any portion thereof, said association may (in lieu of the signature or consent of the individual members or owners), on behalf of its members and in accordance with its articles of incorporation and bylaws, consent to any proposed modification, amendment, or release by a written instrument executed by the association. Any consent made pursuant to a vote of an association shall be evidenced by a written resolution of the association and a 21 Miami Design District SAP RFD Development Agreement certification executed by the secretary of the association's board of directors affirming that the vote complied with the articles of incorporation and the bylaws of the association. For purposes of this Agreement, references to "condominium association" or "association" shall mean any condominium or other association or entity, including master association, as applicable, which governs any portion of the Subject Property. . b fole+lestkrou, b b b koutke sittwffuet+si b b b b ttu4I b b. 30. Authorization to Withhold Permits and Inspections. In the event the Developer is obligated to make payments or improvements under the terms of this Agreement or to take or refrain from taking any other action under this Agreement, and such obligations are not performed as required, in addition to any other remedies available, the City is hereby authorized to withhoj4 any further permits, and refuse any inspections or grant any approvals ucfli time this Agreement is complied with, subject to the written notice anlcu period as established in Section 40 of this Agreement . 44 31. Exclusive Venue, Choice of Law, Specific Performance. It is iallr understood and agreed by the parties hereto, that this Agreement shall be g"e,,+nec by the laws of the State of Florida, and any applicable federal law. boos toco interpretation and performance, and that any action at law, suit in equity orjuial proceedings for the enforcement of this Agreement or any provision hereof shi beco instituted only in the courts of the State of Florida or federal courts and venu`eqor any such actions shall lie exclusively in a court of competent jurisdiction in Miami -Dade County. In addition to any other legal rights, the City and the Developer shall each have the right to specific performance of this Agreement in court. Each party shall bear its own attorney's fees. 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 Parties irrevocably waive any rights to a jury trial. 22 iy i"i<7 Miami Design District SAP RFD Development Agreement 32. Severability. Invalidation of any terms or provisions of this Agreement, by judgment of court. in no way shall affect any of the other terms or provisions of this Agreement, which shall remain in full force and effect, provided the fundamental terms and provisions of this Agreement remain legal and enforceable. 33. No Oral Change or Termination. This Agreement and the exhibits and attachments constitute the entire agreement between the Parties with respect to the components of the Miami Design District Retail Street SAP discussed herein. This Agreement supersedes any prior agreements or understandings between the Parties with respect to the subject matter hereof. 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 and after two (2) public hearings before the City Commission. This Agreement cannot be changed or terminated orally. 34. Compliance with Applicable Law. Subject to the terms and conditions of this Agreement, throughout the term of this Agreement, the Developer shall comply with all applicable federal, state, and local laws, rules, regulations, codes, ordinances, resolutions, administrative orders, permits, policies and procedures, and orders that govern or relate to the respective Party's obligations and performance under this Agreement, all as they may be amended from time to time. 35. Voluntary Compliance. The Parties agree that in the event all or any part of this Agreement is struck down by judicial proceedings or preempted by legislative action, the Parties shall continue to honor the terms and conditions of this Agreement to the extent allowed by law. 36. Representations; Representatives. Each Party represents to the other that this Agreement has been duly authorized, delivered, and executed by such Party*ithi.,, the legal authority to do so and therefore this Agreement constitutes the rijgah valid. and binding obligation of such party, enforceable in accordance itsz terms. 37. No Exclusive Remedies. No remedy or election given by any provision..4% this Agreement shall be deemed exclusive unless expressly so indicated. W„ ieverE. possible, the remedies granted hereunder upon a default of the other Party beco cumulative and in addition to all other remedies at law or equity arising from chry event of default (other than any remedy which may be available at law or in euitya which permits the termination of this Agreement), except where otherwise expressly provided. 38. Failure to Exercise Rights not a Waiver: Waiver Provisions. The failure by any party to promptly exercise any right arising hereunder shall not constitute a waiver of such right unless otherwise expressly provided herein. No waiver or breach of any provision of this Agreement shall constitute a waiver of any subsequent breach of the same or any other provision hereof, and no waiver shall be effective unless 23 Miami Design District SAP RFD Development Agreement made in writing. 39. Events of Default. (a) The Developer shall be in default under this Agreement if any of the following events occur and continue beyond the applicable grace period: the Developer fails to perform or breaches any term(s), covenant(s), or condition(s) of this Agreement, which breach 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 the 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(s), covenant(s), or condition(s) of this Agreement and such failure is not cured within thirty (30) days after receipt of written notice from the Developer specifying the nature of such breach; provided, however, that if such breach cannot reasonably be cured within thirty (30) days, the City 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. (c) It shall not be a default under this Agreement if either party is declared bkruxt by a court of competent jurisdiction. All rights and obligations in this Agriiemgit shall survive such bankruptcy of any party. The Parties hereby forfeit anygghtg rn terminate this Agreement upon the bankruptcy of the other party.} (d) Notwithstanding the foregoing or anything contained in this Agreerne[t? the contrary, providing the Miami City Commission has approved an Assigai2nt cx this Agreement following a public hearing noticed at the cost of a Devel (i)g? default by any successor(s) or assignee(s) of the Developer of any portion gthi Agreement shall not be deemed to be a breach by (A) the Developer, or (B an) other successor or assignee of the Developer; and (ii) a default by the Developer under this Agreement shall not be deemed to be a breach by any successor(s) or assignee(s) of the Developer of their respective rights. duties, or obligations under this Agreement. For purposes of clarity, the redevelopment of the Subject Property may be developed by multiple parties in multiple phases over the next several years. Any actual or alleged default by a developer of a portion(s) or phase(s) of the redevelopment of the Subject Property, including, but not limited to, the Developer, shall not cause, nor be treated, deemed, or construed as a default by another developer or Party with respect to any other portion(s), phase(s), or component(s) of the redevelopment of the Subject Property. 40. Remedies Upon Default. (a) Neither party may terminate this Agreement upon the default of the other party, but shall have all of the remedies enumerated herein. Nevertheless. the parties 24 Miami Design District SAP RFD Development Agreement reserve their right to request that a court declare this Agreement rescinded or terminated due to a material breach which has not been cured. (b) Upon the occurrence of a default by a party to this Agreement not cured within the applicable grace period, the Developer and the City agree that any party may seek specific performance of this Agreement, and that seeking specific performance shall not waive any right of such party to also seek monetary damages, injunctive relief, or any other relief other than termination of this Agreement. g. 41. Assignment or Transfer. This Agreement shall be binding on the Developer and its heirs, successors, and assigns, including the successor to or assignee of any Subject Property Interest. The Developer, at its sole discretion, may assign, in whole or in part, this Agreement including any of its rights and obligations hereunder, or may extend the benefits of this Agreement, to any holde of Property Interest without the prior written consent or any other approval of th ity,� The City shall be notified in writing within thirty (30) days after any assigns t or' transfer. Nothing contained herein shall be deemed to be a dedication, convf,ce or grant to the public in general nor to any persons or entities except as exply set forth herein. 42. Obligations Surviving Termination Hereof. Notwithstanding and prevailingtvcr N any contrary term or provision contained herein, in the event of any lawt'j ao termination of this Agreement, the following obligations shall survive sucbgz termination and continue in full force and effect until the expiration of a one (1) 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 law provisions contained herein; (ii) rights of any party arising 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 effective beyond the expiration or permitted early termination hereof. 43. Lack of Agency Relationship. Nothing contained herein shall be construed as establishing an agency relationship between the City and the Developer and neither the 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 contractors, agents, and employees shall not be deemed contractors, agents, or employees of the Developer or its subsidiaries, divisions or affiliates. 44. Indemnification. Developer agrees to indemnify, defend, and hold harmless the City from and against any and all claims suits, appeals, demand, liabilities, and causes of action of any nature by or on behalf of any person, firm or corporation, against the City relating to or arising from this Agreement, the 25 Miami Design District SAP RFD Development Agreement SAP approval, and/or any Development on the Property pursuant to this Agreement and from and against all costs, fees, expenses, liabilities, anv orders, judgments, or decrees which may be entered and from and against all costs for attorneys' fees, expenses, and liabilities incurred in the defense of such claim or in the investigation thereof. In the event that any action or proceeding is brought against the City by reason of a claim, Developer, upon notice from the City, shall, at its expense, defend the action or proceeding by counsel chosen by the City, including the City Attorney's office or outside counsel. The Citv retains the right to make all decisions with respect to its representations in any legal proceeding, including its inherent right to abandon or settle litigation. b Statutes ('022), (ii) a petition for writ of certiorari, (iii) an action for deekirutory-fur-lossi-dituta-geT-14a-kieuse prouipti Lam. r a"re pcndin'g or thrcatencd, and -r es'ponses, filings, nd tilcadip gith resp C"C-[her tto_ .i - " r-.dq. `l.�rl 45. Amendment or Termination by Mutual Consent. This Agreement may riot b amended or terminated during its term except by mutual agreement2g thR Developer and its successors and assigns, and the City in writing. NZ:). tcr 1,7,k amending or terminating this Agreement, the City Commission shall hold (20.) °fi'3 duly noticed public hearings rn 46. No Third -Party Beneficiary. No persons or entities other than the Devela-ptcp, an 1D r the City, permitted successors and assigns, shall have any rights whatsoeverdeJ this Agreement. 47. Recording. This Agreement shall be recorded in the Public Records of Miami -Dade County, Florida at the Developer's expense and shall inure to the benefit of the City. A copy of the recorded Development Agreement shall be provided to the City Clerk and City Attorney within two (2) weeks of recording. 48. No Conflict of Interest. The Developer agrees to comply with Section 2-612 of the City Code as of the Effective Date, with respect to conflicts of interest and with the State of Florida Ethics Code, and the Miami -Dade County Conflict of Interest and Code of Ethics Ordinance. 49. 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 agreement. 26 Miami Design District SAP RFD Development Agreement 50. Estoppel Certificate. Upon request by any Party to this Agreement. the other Party or its duly authorized representative will deliver to the requesting Party, within thirty (30) days after such request is made, a certificate in writing certifying (a) that this Agreement is unmodified and in full force and effect (or if there have been any modifications. a description of such modifications and confirmation that this Agreement as modified is in full force and effect); (b) that to the best knowledge, information and belief of such Party, the requesting Party is not, at that time, in default under any provision of this Agreement, or, if in default, the nature thereof in detail; (c) to the best knowledge of such Party, whether such Party has a claim against any other Party under this Agreement, and, if so, the nature thereof and the dollar amount of such claim; and (d) such other matters as such requesting Party or its lender may reasonably request. Each Party further agrees that such certificate shall be in a form reasonably acceptable to the City Attorney and may be relied upon by (1) any prospective purchaser of the fee or mortgage or assignee of any mortgage on the fee of the Subject Property or any portion thereof. Should the City fail to execute the requested estoppel certificate within the aforementioned time period, the City's non -response shall be presumed to indicate the Developer Party's compliance with the terms of the Agreement. NOW, WHEREOF, the City and the Developer have caused this Agreement to be duly executed. [Execution Pages for the City and the Developer Follow] Witnesses: RFD North 39, LLC., a Florida 27 Print Name: Print Name: STATE OF FLORIDA ) )SS COUNTY OF MJAM1-DADE) Miami Design District SAP RFD Development Agreement limited liability company By: Name: Title: The foregoing instrument was acknowledged before me this day of 2023, by , as of RFD North 39, LLC, a Florida limited liability company. Personally Known or Produced Identification Type of Identification Produced NOTARY SIGNATURE Print or Stamp Name: Notary Public, State of Florida Commission No.: N/A My Commission Expires: c9 tV 0 Witnesses: RFD North 40, LLC., a Florida 28 Print Name: Print Name: STATE OF FLORIDA )SS COUNTY OF MIAMI-DADE) Miami Design District SAP RFD Development Agreement limited liability company By: Name: Title: The foregoing instrument was acknowledged before me this day of 2023, by , as of RFD North 40, LLC, a Florida limited liability company. Personally Known or Produced Identification Type of Identification Produced NOTARY SIGNATURE Print or Stamp Name: Notary Public, State of Florida Commission No.: N/A My Commission Expires: () — `s' ft.) ill t0 Witnesses: RFD South 40, LLC., a Florida 29 Print Name: Print Name: STATE OF FLORIDA ) )SS COUNTY OF MIAMI-DADE) Miami Design District SAP RFD Development Agreement limited liability company By: Name: Title: The foregoing instrument was acknowledged before me this day of 2023, by , as of RFD South 40, LLC, a Florida limited liability company. Personally Known or Produced Identification Type of Identification Produced CITY OF MIAMI, FLORIDA NOTARY SIGNATURE Print or Stamp Name: Notary Public, State of Florida Commission No.: N/A My Commission Expires: 30 By: Arthur Noriega, City Manager ATTEST: Miami Design District SAP RFD Development Agreement By: Todd B. Hannon, City Clerk APPROVED AS TO FORM AND CORRECTNESS: By: Victoria Mendez, City Attorney Exhibit "A" Legal Descriptions of Subject Property Owner: RFD North 40, LLC 31 �f1 -71 C') c7rn CD.,. -1Z -7A- 1— �r; tit 0 Miami Design District SAP RFD Development Agreement NI AP #65: SUBJECT PROPERTY STREET ADDRESS(ES): SUBJECT PROPERTY LEGAL DESCRIPTION: NIA!'#66: SUBJECT PROPERTY STREET ADDRESS(ES): SUBJECT PROPERTY LEGAL DESCRIPTION: 1 NE 40th ST (Folio No.: 01-3124-027-0210) Las 19. 20, 21. 22, 23 and 24, lets the West 10 feet of lots 23, 22, 23 and 24, all in Block 2, of amended Plat of COMMERCIAL BILTMORE, according to the Plat thereof. as recorded in Plat Book 6, Page 132. of die Public Records of Miami -Dade County. Florida 35 NE 40th Street (Folio No.: 01-3124-027-0180) Lots 14, 15. 16, 17 and 18. In Blodc 2. of amended Plat of COMMERCIAL B1LTMORE, according to thc map or plat thereof. as recorded in Plat Book 6, Page 132, of the Public Records of Miami Dade County, Florida. Together with the terms, provisions and conditions contained in that certain declaration of restrictive covenants in favor the city of Miami. Florida, a municipality of the state of florida. recordal in official records book 23151, page 4667 65 and 66 above have been consolidated into one address 35 \F 40 Street- Folio No.01-3124-1127-0180 Owner: RFD South 40, LLC Exhibit "A" Cont. 32 Miami Design District SAP RFD Development Agreement NIAP#67: SUBJECT PROPERTY STREET ADDRESS(ES►: SUBJECT PROPERTY LEGAL DESCRIPTION: 3995 N Miami Avenue (Folio No.: 01-3124-027-0430) The West 102 feet of lots 21, 22, 23 and 24, less the west 10 feet thereof Block j. of amended Plat of COML\IERCIAL BILTMORE. according to the plat NIAI' #68: SUBJECT PROPERTY STREET ADDRESS(ES): SUBJECT PROPERTY LEGAL DESCRIPTION: \IAP #69: SUBJECT PROPERTY STREET ADDRESS(ES): SUBJECT PROPERTY LEGAL DESCRIPTION: NW' #70: SUBJECT PROPERTY STREET ADDRESS(ES): SUBJECT PROPERTY LEGAL DESCRIPTION: MAP #71: SUI3JECT PROPERTY STREET A DDRESS(ES): SUBJECT PROPERTY LEGAL DESCRIPTION: �1AP #72: SUBJECT PROPERTY STREET ADDRESS(ES): SUBJECT PROPERTY LEGAL DESCRIPTION: thereof, as recorded in Plat Book 6. Page 132, of the Public Records of Miami -Dade County. Florida 10 NE 40th Street (Folio No.: 01-3124-027-0420) Lots 19 and 20 and the East 5 feet of Lots 21, 22. 23 and 24, Block 3. of amended plat of COMMERCIAL BILTMORE, according to the Plat thereof. as recorded in Plat Book 6. Page 1.32, of the Public Records of Miami - Dade County, Florida; and the North 2 inches of Lot 10, and the North 2 inches of the East 2 feet of Lon 11. Block 1. Of B1LTh1ORE COURT. According to the Plat thereof as recorded in Plat Book 7, Page 37. Public Records of Miami -Dade. County, Horida 28 NE 4(f" Street (Folio No.: 01-3124-027-0400) Lots 17 and 18. Block j, of amended Plat of COMLti1ERCIAL BILTMORF, according to the Plat thereof, as recorded in Plat Book 6, Page 132, of The Public Records of Miami -Dade County. Florida 40 N E 40'" Street (Folio No.: 01-3124-027-0390) Lots 15 and 16, Block 3. of amended Plat of COMMERCIAL BILTMORE, according to the Plat thereof. as recorded in Plat Book 6, Page 132, of the Public Records of Miami -Dade County. Florida 50 NE 40th Street (Folio No.: 01-3124-027-0360) Lots 12, 13 and 14, Block 3, of amended Plat of COMMERCIAL BILTMORE, according to the Plat thereof, as recorded in Plat Book 6. Page 132, of the Public Records of Miami -Dade County, Florida 56 NE 40th Street (Folio No.: 01-3124-027-0350) Lots 10 and 11. Block 3, of amended Plat of COMMERCIAL BILTMORE. according to the plat thereof recorded in Plat Book 6, Page 1.32, Public Records of Miami -Dade County, Florida # 67 through #72 above have been consolidated into one address 3995 N Nliami Ave- Folio No. 01-3124-027- 0430 Exhibit "A" Cont. 33 Miami Design District SAP RFD Development Agreement Owner: RFD North 39, LLC \IAP #73: SUBJECT PROPERTY STREET ADDRESS(ES): SUBJECT PROPERTY LEGAL DESCRIPTION: 11:UP #774: SUBJECT PROPERTY STREET ADDRESS(ES): SUBJECT PROPERTY LEGAL DESCRIPTION: \IAP #75: SUBJECT PROPERTY STREET ADDRESS(ES): SUBJECT PROPERTY LEGAL DESCRIPTION: 3925 N Miami Avenue (Folio No.: 01-3124-029-0100) La 1 I. Less the North 2 inches of the East 2 feet and less the West 10 feet. And Lot 12 less the West 10 feet. Block 1. Of BILTMORE COURT, as recorded in Plat Book 7 Page 37, of the Public Records of Miami Da& County, Florida 15 NE 39th Street (Folio No.: OI-3124-029-0I 10) Loa 13, Block 1, of BILTMORE COURT, according to the Plat thereof as recorded in Plat Book 7 Page 37, of the Public Records of Miami -Dade County, Florida; less the West 10 feet of said Lot 13, and Tess the following described property: From the Southeast corner of lot 13, Block 1, of BILTMORE COURT. according to the Plat thereof as recorded in Plat Book 7 Page 37, of The Public Record~ of Miami -Dade County, Florida: thence run West along the South line of said lot 13 for a distance of 82.00 feet to the point of beginning of the following described parcel of land; thence run northwesterly along the arc ofa tangential curve to the right having a radius of 15 feet through a central angle of 90'00'00" with an arc distance of 2356 feet to a point of tangency on a lime 10 feet East of and parallel with the West line of said Lot 13; thence run south along a line 10 feet East of and parallel with the West line of said lot 13 for a distance of 10 feet to a point; thence run southeasterly along the arc ofa tangential curve to the left having a radius of 25 feet through a central angle of 36'52' 12" with an arc distance of 16.09 feet to the point of beginning 21 NE 39th Street (Folio No.: 01-3124-029-0(»10) Lots 9 and 10, less the North 0.28 feet of Lot 10, Block 1. Of BILTMORE COURT. According to the map or Plat thereof, as recorded in Plat Book 7, Page 37, of the public Records of Miami - Dade County, Florida RFD North 39, LLC Exhibit "A" Cont. 34 CO d�u rn Miami Design District SAP RFD Development Agreement 'RP #76: 45 NE 391h Street (Folio No.: 01-3124-029-0060) SUBJECT PROPERTY STREET ADDRESS(ES): SUBJECT PROPERTY LEGAL DESCRIPTION: \1AP #77: SUBJECT PROPERTY STREET ADDRESS(ES): SUBJECT PROPERTY LEGAL DESCRIPTION: NI.1P #78.79.80: SUBJECT PROPERTY STREET ADDRESS(ES): SUBJECT PROPERTY LEGAL DESCRIPTION: Lots 7 and 8, Block 1. of Biltmore Court, according to the Plat thereof, as recorded in Plat Book 7, Page 37. of the Public Records of Miami -Dade County, Florida. ALSO described as: Begin at the Southwest comer of said Lot 8, Block 1. said point being on the North right of way line of NE 39th street; thence N00'001/0"e, along the West line of said Lot 8 a distance of 93.45 feet; thence N90"00'00"e, along the North lint of said Lots 7 and 8 Block 1 a distance of 100.00 feet thence N00'00'00"e, along the East line of said Lot 7, Block 1 a distance of 93.45 feet to the North right of way line of NE 39th street; thence N90'00'00"w. along said North right of way line of NE 39th street a distance of 100.00 feet to the point of beginning 53 NE 39th Street (Folio No.: 01-3124-029-0050) Lot 6, Block 1. of BILTMORE COURT. according to the Plat thereof, as recorded in Plat Book 7. Page 37, of the Public Records of Miami -Dade County. Florida 55 NE 39th Street (Folio No.: 01-3124-029-0040) 75 NE 39th Street (Folio No.: 01-3124-029.0030) 81 NE 39th Street (Folio No.: 01-3124-029-0020) Lots 3 4 and 5, Block 1, BELTMORE COURT. according to the Plat thereof recorded in Plat Book 7, Page 37, Public Records of Miami -Dade County. Florida #73 through 80 abo.e have been consolidated into one address 21 NE 39 Street- Folio No. 0I-3124-029-0080 Exhibit "B" Legal Descriptions of SAP Area 35 co I'V vo Miami Design District SAP RFD Development Agreement Exhibit "C" Miami Design District Retail Street SAP Regulating Plan 3 6 Miami Design District SAP RFD Development Agreement 37 Miami Design District SAP RFD Development Agreement EXHIBIT "C" Cont. Concept Book 38 Fri Miami Design District SAP RFD Development Agreement 39 Summary report: Litera Compare for Word 11.3.1.3 Document comparison done on 12/8/2023 2:26:22 PM Style name: GT-1 (Default) Intelligent Table Comparison: Active Original filename: PZD-4.pdf.docx Modified filename: RFD DA 12-7-23 CLEAN.docx Changes: Add 68 Delete 47 Meve4foift 0 Move To 0 Table Insert 0 Table Delete 0 Table moves to 0 Table m es from 0 Embedded Graphics (Visio, ChemDraw, Images etc.) 6 Embedded Excel 0 Format changes 0 Total Changes: 121 m rn rn This Instrument Was Prepared By, Record and Return To: Iris V. Escarra, Esq. Greenberg Traurig, P.A. 333 S.E. 2"6 Avenue Suite 4400 Miami, Florida 33131 **DRAFT** (Reserved) DEVELOPMENT AGREEMENT BETWEEN THE CITY OF MIAMI, FLORIDA AND RFD NORTH 39 LLC, RFD NORTH 40 LLC, RFD SOUTH 40 LLC, REGARDING APPROVAL OF THE MIAMI DESIGN DISTRICT RETAIL STREET SPECIAL AREA PLAN This is a Development Agreement ("Agreement") made this day of 2023 by and between RFD North 39 LLC, RFD North 40 LLC, RFD South 40 LLC, Florida limited liability companies (collectively, the "Developer"), and the City of Miami, Florida, a municipal corporation and a political subdivision of the State of Florida (the "City") (the Developer and the City are together referred to as the "Parties"). WHEREAS, the Developer is the owner of certain properties as more fully described in Exhibit A, attached and incorporated herein (collectively, the "Subject Property'); and WHEREAS, the Miami Design District (the "District") spans an area.er bounded on the east by Biscayne Boulevard, south by NE 38th Street, on the wesi`bST-North Miami Avenue, and on the north by NE 40th Street; and WHEREAS, the status of the District is consistent with the City's vision to lop9 a world class destination for the arts, fashion, and design, and, as such, the City writhes to encourage redevelopment within the District; and t" s) WHEREAS, the development of multi -family residential housing and lodging uses within the District will complement existing retail and restaurants, encourage pedestrian activity, and provide additional housing and lodging options in the urban core proximate to local and regional transportation; and WHEREAS, a process exists within the City's zoning code ("Miami 21"), known as a "Special Area Plan" or "SAP," which allows parcels of more than nine (9) abutting acres Miami Design District SAP RFD Development Agreement to be master planned to allow greater integration of public improvements and infrastructure. and greater flexibility so as to result in higher or specialized quality building and streetscape design; and WHEREAS, on July 26, 2012, the City Commission approved the Miami Design District Retail Street Special Area Plan ("SAP") for a 19.08 acre area in the District under Ordinance 13334, and the City subsequently amended the SAP, which was subsequently amended; and WHEREAS, the City and Developer agree that development within the District will proceed substantially in accordance with the Miami Design District Retail Street SAP Regulating Plan and Design Concept Book, as modified on pursuant to Ordinance No. , both of which are attached as composite Exhibit "C" hereto and incorporated herein by reference ("Regulating Plan and Design Concept Book"); and WHEREAS, the City and Developer agree that development of the Subject Property will proceed in a manner consistent with the Miami Comprehensive Neighborhood Plan ("Comprehensive Plan") and the City's land development regulations; and WHEREAS, on the City Commission approved the fifth amendment to the SAP under Ordinance No. that added the Subject Property and the properties generally located at 27 NW 39 Street, and 3801/3819 N Miami Avenue to the SAP, as amended, increasing the total area to approximately 25.491 acres; and WHEREAS, Sec. 3.9.1 of Miami 21 requires development within the SAP to occur pursuant to a recorded development agreement between the property owner(s) and the City; and WHEREAS, the Developer seeks to have the Subject Property included within the SAP and subject to the regulations applicable within the SAP and proffers this Devtitloptnt Agreement (the "RFD Development Agreement" or "Agreement") in accordancIvitlte requirements of Section 3.9.1 of Miami 21; and rri WHEREAS, Chapter 163, Florida Statutes (2022), authorizes and provider Ib�al governments to enter into development agreements with any person or entity haQva 1 1 or equitable interest in real property located within its jurisdiction; and =-c co WHEREAS, the RFD Development Agreement will govern developmetfof the Subject Property; and WHEREAS, lack of certainty in the approval of development can result in a waste of economic and land resources, discourage sound capital improvement planning and financing, escalate the cost of housing and development, and discourage commitment to comprehensive planning; and WHEREAS, assurance to the Developer that they may proceed in accordance with existing laws and policies, subject to the conditions of a development agreement, strengthens the public planning process, encourages sound capital improvement planning and financing, 2 rn Miami Design District SAP RFD Development Agreement assists in assuring there are adequate capital facilities for the development, encourages private participation in comprehensive planning, and reduces the economic costs of development; and WHEREAS, the modifications identified above will ensure the continued vitality of the District, and provide additional employment opportunities for the neighborhood and region; and WHEREAS, the City Commission, pursuant to Ordinance No. adopted , 2023 has authorized the City Manager to execute this Agreement upon substantially similar terms and conditions as set forth herein below, and the Developer has been duly authorized to execute this Agreement upon the terms and conditions set forth below. NOW THEREFORE, in consideration of the mutual covenants and agreements hereinafter contained, the Parties mutually agree and bind themselves as set forth herein: 1. Consideration. 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. 2. Rules of Legal Construction. For all purposes of the 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 to ielsh4 refer to the instant Agreement in its entirety and not to individual salWs $ articles; -- (e) The Parties hereto agree that this Agreement shall not be more strictly tqtru4 against either the City or the Developer, as all parties are drafter the Agreement; and _ (= r` (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 attachments and this Agreement. 3. Definitions. Capitalized terms which are not specifically defined herein shall have the meaning given in Miami 21. "Agreement" means this Development Agreement between the City and the 3 rn rn Miami Design District SAP RFD Development Agreement Developer. "City" means the City of Miami, a municipal corporation and a political subdivision of the State of Florida, and all departments, agencies and instrumentalities subject to the jurisdiction thereof. "City Charter" means the municipal Charter of the City of Miami. "City Code" or "Code" means the City of Miami Code of Ordinances. "Comprehensive Plan" means the comprehensive plan known as the Miami Comprehensive Neighborhood Plan, adopted by the City pursuant to Chapter 163, Florida Statutes (2022), meeting the requirements of Section 163.3177, Florida Statutes (2022), Section 163.3178, Florida Statutes (2022) and Section 163.3221(2), Florida Statutes (2022), which are in effect as of the Effective Date. "Concept Book" means the Concept Book prepared by Arquitectonica, dated , and attached as Exhibit C. "County" means Miami -Dade County, a political subdivision of the State of Florida. "Development" means the carrying out of any building activity, the making of any material change in the use or appearance of any structure or land, or the dividing of land into three (3) or more parcels and such other activities described in Sections 163.3221(4) and 380.04, Florida Statutes (2022). "Development permit" includes any building permit, zoning permit, subrwisitg rn approval, rezoning, certification, special exception, variance, or any othefic action of local government having the effect of permitting the development land.- "Effective Date" means the date of recordation of the executed, originatliosioS of this Agreement. "Existing Zoning" is (a) Miami 21 Code, specifically including the Miami Dgni.0 District Retail Street SAP Regulating Plan and Design Concept Book, and reed modifications to the Transect designations of lots within the SAP Area, and (b) the provisions of the City Charter and City Code which regulate development, as amended, which together comprise the effective land development regulations governing development of the SAP. "Land" means the earth, water, and air, above, below, or on the surface and includes any improvements or structures customarily regarded as land. "Land Development Regulations" shall be as defined in Chapter 62, Section 62-11 of the City Code of Ordinances and includes the City's Comprehensive Plan regulations and Miami 21. 4 Miami Design District SAP RFD Development Agreement "Laws" means all ordinances, resolutions, regulations, comprehensive plans, land development regulations, and rules adopted by a local government affecting the development of land. "Miami 21" also known as the Miami 21 Code means City Ordinance 13114, as amended through the Effective Date, which is the Zoning Ordinance of the City of Miami. "Property Interest" any ownership interest in any SAP Property. "Public Facilities" means major capital improvements, including, but not limited to, transportation, sanitary sewer, solid waste, drainage, potable water, educational, parks and recreational, streets, parking and health systems and facilities. "SAP Area" means the lots and properties which comprise the SAP as depicted on the boundary map and legal descriptions attached as Exhibit B and as depicted on Sheets A 1.4 and A 1.5 of the Concept Book. "Special Area Plan" or "SAP" refers to the Miami Design District Retail Street Special Area Plan, including the Regulating Plan and Concept Book. 4. Purpose. The purpose of this Agreement is for the City to authorize the Developer to redevelop the Subject Property pursuant to the SAP. This Agreement will establish, as of the Effective Date, the land development regulations that will- ovetzg the development of the Subject Property, thereby providing the Developer w additional certainty during the development process. This Agreement satisii. s the, requirements of Section 3.9.1(0, Miami 21 and Florida Statutes s. 16 3 0 163.3243. N 5. Intent. The Developer and the City intend for this Agreement to be constr �u_ nd 7' implemented so as to effectuate the purpose of the Miami Design District '.etail ?? Street SAP, this Agreement, the Comprehensive Plan, Existing Zoning, and `,the r Florida Local Government Development Agreement Act, s. 163.3220 - 163.323, Florida Statutes (2022), all of which are applicable to this Agreement. 6. Legal Description of Land, Names of Legal Owners, Applicability. This Agreement only applies to the Subject Property, as identified and legally described in Exhibit A. The Subject Property's legal and equitable owners are listed along with the legal descriptions in Exhibit A. 7. Term of Agreement, Effective Date and Binding Effect. This Agreement shall have a term of thirty (30) years from the Effective Date and shall be recorded in the public records of Miami -Dade County and filed with the City Clerk. The term of this Agreement may be extended by mutual, written consent of the Parties subject to public hearing(s), pursuant to Section 163.3225, Florida Statutes (2022). The Developer shall bear the advertising and related noticing costs of such public 5 Miami Design District SAP RFD Development Agreement hearing(s). This Agreement shall become effective on the Effective Date and shall constitute a covenant running with the land that shall be binding upon, and inure to the benefit of the Parties, their successors, assigns, heirs, legal representatives, and personal representatives. 8. Zoning Permitted Development Uses, Building Densities and Intensities. (a) Miami Design District Retail Street SAP Designation. The City has designated the Subject Property as being located within the "Miami Design District Retail Street SAP" on the official Zoning Atlas of the City, pursuant to the applicable procedures in Miami 21. The Regulating Plan and Concept Book provide for any deviations from the underlying regulations of Miami 21. In approving the SAP, the City has determined that the uses, intensities and densities of development permitted there under are consistent with the Comprehensive Plan and the Existing Zoning. Deviations to the regulations in the City Code are articulated further in this Agreement. Where the standards in the Regulating Plan, Concept Book and/or Development Agreement are silent, the underlying Miami 21 standards and requirements shall apply. Any amendments to, or recission of, the underlying Miami 21 after [DATE OF ADOPTIONI that negatively impact or downzone any portions of the Subject Property shall not apply. (b) Density. Intensity, Uses and Building Heights. As of the Effective Date and pursuant to the SAP, the density and intensity proposed for the SAP are permitted by the Existin Zoni g and are consistent with the Comprehensive Plan. Adjacent 'd no adjacent parcels within the SAP Area which have unutiliat�. en or unutilized FLR, located within the T6 Urban Core tratlt zone ("T6 Properties") may transfer such unutilized density or tilizee FLR ("Remaining Aggregate Density" or -Remaining AJgao. FLR") to other T6 Properties within the SAP Area, irFzide however that each individual project on those T6 Properak-inus - comply with the limits imposed by the SAP Regulating Plan 44 th, Comprehensive Plan. Notwithstanding the forgoing, density ;and intensity shall be counted on an aggregate basis for all T6 Properties located within the SAP; such that the total aggregated density and intensity throughout the T6 Properties shall not surpass the aggregated as -of -right maximum (i.e. base) density and intensity permitted in the underlying T6 Properties. Aggregated density and intensity, as well as the Remaining Aggregate Density and Remaining Aggregate FLR will be tracked via an aggregated rights tracking sheet ("Tracking Sheet") and reviewed annually as part of the Annual Review process as indicated in Section 27. ii. As of the Effective Date and pursuant to the SAP, the Densities proposed for the SAP are permitted by the Existing Zoning and are 6 Miami Design District SAP RFD Development Agreement consistent with Miami 21 and the presently adopted Miami Comprehensive Neighborhood Plan (the "Comprehensive Plan"). iii. As of the Effective Date and pursuant to the SAP, the Uses proposed for the SAP are permitted by the Existing Zoning and are consistent with the Comprehensive Plan. iv. As of the Effective Date and pursuant to the SAP, the Heights proposed for the SAP are permitted by the Existing Zoning and are consistent with Miami 21 and the Comprehensive Plan. v. Nothing herein shall prohibit the Developer from requesting a change of zoning, pursuant to Article 7 of Miami 21, to increase the density or intensity of development permitted by the underlying Transect designation of that certain property forming part of the Miami Design District Retail Street SAP by amending the SAP and this Agreement. vi. SAP Properties having an underlying transect designation of T6 Urban Core are eligible to transfer unutilized density or FLR between development sites, up to the maximums set forth in the Regulating Plan. This process is separate and apart from the Public Benefits Program set forth in Section 3.14 of Miami 21 and Section 3.14 of the Regulating Plan vii. The City's Comprehensive Plan currently permits the transfer of densities within certain specified areas to permit densities in excess of the density limits set forth in a particular Future Land Use Map category. Nothing herein shall prohibit the Develope"t frQgn requesting such density transfers within the SAP, in the Bent City adopts Land Development Regulations related to t qrar t Sheds or Transit Oriented Development areas. '„1 c—s 9. Prohibition on Downzoning. =". (a) The Comprehensive Plan, this Agreement, and the SAP shallver development of the Subject Property for the duration of the AgreemenlThP City's Laws and policies adopted after the Effective Date may be applied the Subject Property only if the determinations required by Section 163.3233(2), Florida Statutes (2022) have been made after thirty (30) days written notice to the Developer and after a public hearing or as otherwise provided herein. (b) Pursuant to Section 163.3233(3), Florida Statutes (2022), this prohibition on downzoning supplements, rather than supplants, any rights that may vest to the Developer under Florida or Federal law. As a result, the Developer reserves the right to challenge any subsequently adopted changes to land development regulations which are in derogation of this Agreement on (a) common law principles including, but not limited to, equitable estoppel and vested rights, or (b) statutory rights which may accrue by virtue of Chapter 70, Florida Statutes 7 Miami Design District SAP RFD Development Agreement (2022). 10. Public Facilities. In the event that the Existing Zoning or the Comprehensive Plan requires the Developer to provide additional Public Facilities to address any deficiencies in levels of service at the time of obtaining the required building permits, the Developer will provide such Public Facilities consistent with the timing requirements of Section 163.3180, Florida Statutes (2022). 11. Reservation of Land Dedicated for Public Purposes. As proposed in the Concept Book, as amended, a minimum of five percent (5%) of the Subject Property is reserved as land dedicated for a public purpose as a Civic Space Type as detailed in Section 3.9.1(e) of Miami 21. 12. Future Development Review. Future development within the SAP Area shall proceed pursuant to the process established in the Regulating Plan and Concept Book. The criteria to be used in determining whether future development shall be approved are consistency with the Comprehensive Plan, Miami 21, this Agreement, and consistency with the SAP, as applicable. 13. Environmental. The City finds that the redevelopment of the Subject Property will confer a significant net improvement upon the publicly accessible tree canopy in the area by providing trees at the Subject Property. The City and the Developer agree that the Developer will comply with the intent and requirements of Chapters 17 and 62 of the City Code, and Article 9 of Miami 21, by performing tree replacement as follows. (a) Off -site replacement trees. Notwithstanding the requirements of Sect 1313 6(e) of the City Code, where tree replacement within the Subject Props ni i possible, the Developer may enter into an agreement with the City toorrb tree replacement on public property in the following order of priority: (, thiiN the SAP Area's Open Space and Civic Spaces; (ii) within a one (1) mile iusp, of the SAP Area within the same City Commission District as the ja�ect Property, currently City Commission District 5 as defined by the City k; (iii) within any City park within same City Commission District as the Sul,ct Property, currently City Commission District 5 as defined by the City Clerk od subject to approval by the City, or (iv) within any City park outside of the same City Commission District as the Subject Property, currently City Commission District 5 as defined by the City Clerk subject to approval by the City. The City further agrees to facilitate the permitting and planting of replacement trees on all publicly owned property within the SAP Area, within a one (1) mile radius of the SAP Area and within City parks. The Developer undertaking tree replacement off -site for any parcel of land within the SAP Area shall agree to water, trim, root, prune, brace, or undertake any other necessary maintenance as may be required by the Public Works Department for a period of not greater than one (1) year after installation. The Developer undertaking any off -site tree replacement further agrees to warrant each such off -site replacement tree for a 8 Miami Design District SAP RFD Development Agreement period of one (1) year after the date of installation. (b) Subject Property tree installation, maintenance and guarantee. For all trees placed within the SAP Area, Developer placing such trees shall install any needed irrigation and corresponding water meters to support the growth of trees located within the right-of-way. The Developer undertaking tree replacement for any parcel of land shall agree to water, trim, root, prune, brace, or undertake any other necessary maintenance as may be required for trees located within the SAP Area. The Developer undertaking any such tree placement within the SAP Area further agrees to warrant each SAP Area tree for a period of one (1) year after installation. (c) Tree installation. The tree replacement chart below shall be used to determine whether Developer has satisfied the tree replacement requirements for any particular parcel of land as set forth in Sec. 17-6.(a) of the City Code. The chart below shall replace and supersede Chart 17.6.1.1. in the City Code. Tree Replacement Chart Total diameter of tree(s) to be removed (sum of inches at DBH) Total inches of replacement LIBH required (12' minimum tree-4igl 2„_ 3�� 2" 6 cd.' <101 Pi 4"- 6" 4" 7"- 12„ 8" rs.) r� 13"- 18" 12" a.r_k < 25"- 30" 20" r cv r 31"- 36" 24" (...) rn o 37"- 42" 28" ' 43"- 48" 32" 49"- 60" 40" Replacement shall be of minimum replacement size at two (2) inches DBH and twelve (12) feet overall height. To determine whether the replacement requirements have been satisfied, calculate the total sum in inches of the diameter of the trees removed. The size of the replacement trees diameter at breast height (DBH) must equal the total inches of replacement DBH set forth in the above chart. Diameter measurement shall be rounded up to the nearest inch. If the sum of the diameter of trees to be removed exceeds a total of 60 inches, the additional inches shall be added cumulatively from the top of the chart, down to the bottom of the chart, to calculate the number of DBH for replacement trees. (d) Tree species. The chart set forth below shall replace and supersede Chart 17.6.2.1. in the City Code. All other requirements set forth in Sec. 17-6.(b) of 9 Miami Design District SAP RFD Development Agreement the City Code shall apply within the SAP Area. Required total DBH for replacement trees Required minimum number of species 22"- 40" 2 41"- 100" 4 101" or greater 6 (5) Tree installation. Developer shall install trees opportunistically within the public right-of-way, subject, at all times, to approval by the Department of Public Works. 14. Connectivity and Activity within Public Right -of -Way. (a) Connectivity. A critical element to the success of the Subject Property within the SAP is the connectivity and pedestrian overpass across NE 40th Street as generally depicted on Sheet A-2.2 of the Concept Book (i.e. above grade pedestrian bridges) within the public right-of-way. The redevelopment of the Subject Property which may include a pedestrian overpass across NE 40th Street as generally depicted on Sheet A-2.2 of the Concept Book will facilitate ease of access, minimize pedestrian and vehicular conflicts, and reduce traffic impacts by enhancing internalized traffic circulation, reducing off -site impacts, and expanding parking capacity within the District. The Developer recognizes that such connectivity and commercial tx ge may require approval of other governmental agencies such as Midi -lie County. The City finds and determines that establishing such 4HiecttSgty serves a public purpose, and further agrees to support the DeveloiSif etas to obtain any authorization to establish such below -grade andA-elevated connection where the approval of another governmental agenW maPte necessary. co The City further finds that the authorization of such a connection 4&ovef ie public right-of-way shall in no way diminish access for firefighting OparigRis or rescue and salvage operations; diminish traffic, transportat'bn and circulation; or adversely impact the advancement of the safety, health, and general welfare within the City. Given the public benefits conferred upon the City by such pedestrian overpass across NE 40th Street as generally depicted on Sheet A-2.2 of the Concept Book and through this Agreement. the provisions of Sec. 54-186 prohibiting such encroachments beyond the City's established Base Building Line shall not apply to the Miami Design District Retail Street SAP. (b) Construction of encroachments within the Public Right -of -Way. The Developer proposes a pedestrian overpass across NE 40th Street as generally depicted on Sheet A-2.2 of the Concept Book. The City finds that the 10 Miami Design District SAP RFD Development Agreement encroachments proposed by the Developer do not unduly restrict the use of the public right-of-way and are an essential element in the construction of the vehicular underpass and/or overpass within the same rights -of -way. The adoption of this Agreement shall serve to satisfy the requirements set forth in Sec. 55-14(b) of the City Code. All proposed encroachments will comply with the regulations and restrictions of the Florida Building Code. Further, this Agreement shall satisfy the requirements of Sec. 55-14(d) of the City Code. In consideration for authorizing the construction of the aforementioned encroachments, the Developer further covenant to: (1) Maintain the pedestrian overpasses in accordance with the Florida Building Code and the City Charter and Code. (2) Provide an insurance policy, in an amount determined by the city's risk manager, naming the City as an additional insured for public liability and property damage. The insurance shall remain in effect for as long as the encroachment(s) exist within the right-of-way. Should the Developer fail to continuously provide the insurance coverage, the City shall have the right to secure similar insurance policy in its name and place a special assessment lien against the owner's abutting private property for the total cost of the premium. (3) The Developer shall hold harmless and indemnify the City, its officials and employees from any claims for damage obioss to property and injury to persons of any nature whatsoever arisibt outAf the use, construction, maintenance or removal of the pastrlj 11 overpass, and from and against any claims which may arisef t , , granting of permission for the encroachment or any—_e.44ivi cll. 1 performed under the terms of this Agreement. m,•,a ; `;,.o Til 15. Alcoholic Beverage Sales. Upon approval of this Agreement, the distance sepatin requirements pursuant to Chapter 4 of the City Code, shall not apply to the Si j t CO Property from an Alcohol Service Establishment located either within the District r c' outside the District. Developer agrees that an Alcohol Service Establishment at die Subject Property will not be considered for distance separation requirements for any Alcohol Service Establishments outside the District. Each Alcohol Service Establishment permitted at the Subject Property, exclusive of bona fide, licensed cafes, restaurants, and other establishments where the sale of alcoholic beverages is incidental to the principal use of the sale of food, shall be permitted pursuant to the requirements of the Miami Design District Street Regulating Plan, attached hereto as part of Exhibit "C", and any applicable provision of Chapter 4 of the City Code not in conflict with the provisions of this Agreement. 16. Valet Parking. The Developer may utilize the uniform valet system located within the District to service the Subject Property generally, or may seek its own valet 11 Miami Design District SAP RFD Development Agreement permits. Notwithstanding the limitations set forth in Sec. 35-305 of the City Code, a maximum of two (2) valet permits may be issued for the operation of a valet parking ramp on the same side of the block at the Subject Property. 17. Temporary/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 within the SAP and therefore do not require a temporary or special event permit: event banners, farmers' markets, grand openings, holiday sales, outdoor sales, ground breakings, 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 or (2,100) two thousand one hundred guests, whichever is less. Although no special or temporary event permit is 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. Notwithstanding the above, for events which Developer and/orcipitent ` anticipates to exceed seventy five percent (75%) of the maximum-permitte occupancy, inclusive of Open and Civic Space or (2,100) two thousand o1ia`„ hundred guests, whichever is less, the Developer, or its designee, must subm an application for a (i) temporary event permit or (ii) if such event#itire a street closure, takes place on City Property, or alcohol will be scd, special events permit, with Fire Department review. Such application talt; be submitted for review to the City of Miami Office of Filmnd 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 fourteen (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: I2 Miami Design District SAP RFD Development Agreement (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. (b) Notwithstanding the requirements of Section 62-535, a Temporary Use Permit ("TUP") can be issued for a maximum of three (3) years. A TUP can be extended annually by the zoning administrator for up to ten (10) years, thereafter further requests for extensions must be approved by the City Commission. Areas under a TUP shall not require parking. Requests for TUPs shall be accompanied by a hurricane preparedness plan to be reviewed and approved by the City's Building Department. (c) Food trucks shall be permitted to operate on private land within the SAJ an` the distance separation requirements set forth in Section 31-51(c)(4) ©T the City's Code of Ordinances shall not apply within the SAP. Food tr nckr,I) Food truck gatherings shall be permitted to park overnight and preseiii ,the... - same location up to seven days a week upon submittal of (i) a notarize tert of approval from a Developer Party and (ii) site plan approval vi bS*P 1 permit, with Fire Department review; such Food truck or Foodk gatherings do not require a temporary event permit, special event permrt'gra 3 temporary use permit. There is no limit to the number of Food trulc c' gatherings that can occur monthly. Existing public restrooms within the SAP will generally satisfy the requirement to provide bathroom facilities for Food trucks and Food truck gatherings, unless additional bathrooms are found to be required in the site plan approval via SAP permit. Food truck operators will provide waste disposal for patrons and keep the area surrounding the Food truck(s) clear of waste and debris resulting from their services. 18. Public Benefits. (a) Civic Space. A minimum of 5% of the Subject Property will be reserved as Civic Space. (b) Civic and Open Space Improvements. The Developer will provide 13 Tri Miami Design District SAP RFD Development Agreement improvements to the Civic Space and Open Space at the Subject Property, conferring a benefit on the general public and patrons of the SAP Area. The Developer shall strive to provide a minimum of ten percent (10%) of Open Space, but in no event less than six and a half percent (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 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 within the Subject Property within five (5) years of the Effective Date equal less than the aforementioned 10% goal, then the Developer shall make a cash contribution to the City's Public Parks and Open Space Trust Fund at the rate of $10.81 per sq. ft., as contemplated under Sec. 3.14.4(b)(3) o Miami 21, for the square footage comprising the difference between the 10% Open Space goal and the minimum requirement of 6.5% (c) North Miami Avenue. The Developer will activate the North Miami Avenue frontage at the Subject Property with an enhanced pedestrian experience including, but not limited to, direct pedestrian access, open spaces, engaging facade treatments, and/or art installation, as North Miami Avenue serv0 as tife main North/South connector within the City. ci ern 77.1 (d) Expansion of the District. The Developer is extending the highly su aessful District to the West, expanding the high -quality development for w3ich trh� District is renowned. rsc :. (e) Job Creation and Employment Opportunities. Generally, the Developen shall consult with local and state economic development entities regardi n j training and job placement services for area City residents seeking emplayiment opportunities with potential employers within the Subject Property. Pvt., (f) Street Right of Way Improvements. Developer agrees to implement the non- standard right-of-way improvements adjacent to and abutting the Subject Property by replicating or complementing the street right-of-way improvements implemented elsewhere within the boundaries of the SAP (the "Street Improvements"). Developer agrees to construct and maintain, at its sole cost and expense, such non-standard improvements in order to foster a uniform aesthetic throughout the SAP. Redevelopment of the Subject Property will also require infrastructure improvements as required under the City Code. 19. Compliance With Fire and Life Safety Laws. The Developer shall at all times in the development and operation of the Subject Property comply with all applicable laws, ordinances and regulations including life safety codes to insure the safety of all Subject Property and City residents and guests. Specifically and without limitation, the Developer will install and construct all required fire safety equipment and water 14 f' f Miami Design District SAP RFD Development Agreement lines with flow sufficient to contain all possible fire occurrences. 20. Local Development Permits. The redevelopment of the Subject Property may require additional permits or approvals from the City and any division thereof. Subject to required legal process and approvals, the City shall make a good faith effort to take all reasonable steps to cooperate with and facilitate all such approvals. Such approvals include, without limitation, the following approvals and permits and any successor or analogous approvals and permits: (a) Waiver(s), Warrant(s), Exception(s), Variances, or SAP Permits; (b) Subdivision plat and/or waiver of plat approvals; (c) Public Works approvals; (d) Street Vacations and Closures; (e) Covenant or Unity of Title acceptance and the release of any existing Unities, Covenants or Declarations of Restrictions; (f) Water and Sanitary Sewage Agreement(s); Paving and Drainage Plans and Permits; Tree Removal Permits; Demolition Permits; Environmental Resource Permits; (k) Miami -Dade (and if applicable, City) Transit approvals; (l) Federal Aviation Administration and Miami -Dade Aviation Defiktine determination(s) and approval(s); <^� (m) Right of Way Encroachment permits or licenses; sc^ oa (n) Miami Parking Authority approvals; (o) Building permits; (p) Certificates of use and/or occupancy; (q) Temporary Use permits (r) Stormwater permits 15 rn i) `1j Miami Design District SAP RFD Development Agreement (s) Temporary Fence permits (t) Maintenance of Traffic approvals; and (u) Any other official action of the City, County, or any other government agency having the effect of permitting /regulating development of the SAP Area. In the event that the City substantially modifies its land development regulations regarding site plan approval procedures, authority to approve any site plan for a project in the Subject Property shall be vested solely in the City Manager, with the prior, written recommendation of the Planning Director. Any such site plan shall be approved if it meets the requirements and criteria of the Existing Zoning, the Comprehensive Plan and the terms of this Agreement. 21. Necessity of Complying with Regulations Relative to Development Permits. The Developer and the City agree that the failure of this Agreement to address a 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 permitting requirements, conditions, fees, terms, licenses, or restrictions. Pursuant to Section 163.3241, Florida Statutes (2022), if state or federal laws are enacted after the execution of this development agreement which are applicable to and preclude the parties' compliance with the terms of this development agreement, this Agreement shall be modified or revoked as is necessary to comply with the relevant state or federal laws. 22. Consistency with Comprehensive Plan. The City finds that developmerir f tj SAP Area is in conformity with the Existing Zoning and is consistent wh the Comprehensive Plan. In the event that the Existing Zoning or the ComprefiglsivcciA Plan requires the Developer to provide additional Public Facilities to acco*odatt the redevelopment of the Subject Property, the Development will provide sucli t blia Facilities consistent with the timing requirements of Section 163.3180, .FlOidaTT. 4. Statutes (2022). ° .-f co 23. Phased Development. The Developer and the City agree that the redevelopmerlrpf r© the Subject Property may be developed by multiple parties in multiple phases ojr the life of the Agreement. 24. Cooperation, Expedited Permitting and Time is of the Essence. (a) The Parties agree to cooperate with each other to the full 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 City shall use its best efforts to expedite the permitting and approval process in an effort to assist Developer in achieving its development and construction milestones. The City will accommodate requests from Developer's general contractor and subcontractors for review of phased or multiple permitting packages, such as I6 Miami Design District SAP RFD Development Agreement those for excavation, site work and foundations, building shell, core, and interiors. In addition, the City will designate an individual within the City Manager's office who will have a primary (though not exclusive) duty to serve as the City's point of contact and liaison with Developer in order to facilitate expediting the processing and issuance of all permit and license applications and approvals across all of the various departments and offices of the City which have the authority or right to review and approve all applications for such permits and licenses. (b) Notwithstanding the foregoing, the City shall not be obligated to issue development permits to the extent a Developer does not comply with the applicable requirements of the Existing Zoning, the Comprehensive Plan, this Agreement and applicable building codes. 25. Reservation of Development Rights. (a) For the term of this Agreement, the City hereby agrees that it shall permit the development of the Subject Property in accordance with the Existing Zoning, the Comprehensive Plan, Regulating Plan, Concept Book, and this Agreement. (b) Nothing herein shall prohibit an increase in the density or intensity of development permitted on the Subject Property in a manner consistent with (1) the Existing Zoning and/or the Comprehensive Plan, (2) any zoning change subsequently requested or initiated by the Developer in accordance with applicable pro siorr pf law or (3) any zoning change subsequently enacted by the City. (c) The expiration or termination of this Agreement shall not be considere,waiNG of, or limitation upon, the rights, including, but not limited to, any (gains 01 vested rights or equitable estoppel, obtained or held by the Develorta 9r its. successors or, assigns to continued development of the Subject Prosy itr conformity with Existing Zoning and all prior and subsequent aive development permits or development orders granted by the City. The City resVives© its immunities, defenses and any claims it has as to vested rights or equile estoppel. 26. Annual Review. (a) The Developer shall provide the City on an annual basis a status of the redevelopment of the Subject Property in order for the City to conduct an annual review of the Development. This requirement shall commence twelve (12) months after the Effective Date and shall continue throughout the term. (b) During its annual review, the City may ask for additional information not provided by the Developer. Any additional information required of the Developer during an annual review shall be limited to that necessary to determine the extent to which the Developer is proceeding in good faith to comply with the terms of this Agreement. 17 Miami Design District SAP RFD Development Agreement (c) Subject to the applicable terms and provisions of this Agreement, if the City finds on the basis of competent substantial evidence that the Developer intentionally, willfully or negligently failed to substantially comply with the terms, obligations, or conditions of this Agreement, the City may terminate or amend this Agreement after providing thirty (30) days written notice to the Developer unless cured by the Developer prior to the expiration of such thirty(30) day period; provided, however, that if such failure cannot reasonably be cured within thirty (30) days, the Developer shall not be in default if it measurably commences to cure such breach within such thirty (30) day period and diligently pursues the cure to completion. Any termination or modification of this Agreement shall not become effective until the City Commission approves same after holding two (2) duly noticed public hearings. 27. 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 service 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 legal 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 -1 ='P Miami, FL 33133 rs ;Al With copies to: -�� ` e 4 City Attorney c 1 x_* AO Miami Riverside Center ? �< �' I 444 S.W. 2nd Ave., 9th Floor -` ram— cCI.,», 0 Miami, FL 33130 r � CD Department of Planning Miami Riverside Center 444 S.W. 2nd Ave., 3rd Floor Miami, FL 33130 Department of Transportation Miami Riverside Center 444 S.W. 2nd Ave., 9th Floor Miami, FL 33130 18 Miami Design District SAP RFD Development Agreement To the Developer: RFD North 39, LLC c/o Guillaume Rousson 645 Madison Avenue New York, New York 10065 RFD North 40, LLC c/o Guillaume Rousson 645 Madison Avenue New York, New York 10065 RFD South 40, LLC c/o Guillaume Rousson 645 Madison Avenue New York, New York 10065 With copies to: Greenberg Traurig, P.A. Attn: Iris V. Escarra, Esq. 333 SE 2nd Avenue, Suite 4400 Miami, FL 33131 w L. Any Party to this Agreement may change its notification address(es) by providing written notification to the remaining parties pursuant to the terms and conditions of this section. 28. Enforcement. The City, its successor or assigns, and the Developer shall have the right to enforce the provisions of this 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 its own respective attorney's fees. 29. Modification. In accordance with the Concept Book and development plans, the redevelopment of the Subject Property may be developed in multiple phases. This Agreement may be modified, amended or released as to any phase, or any portion thereof, by a written instrument executed by the, then, owner(s) of such phase provided that the same is also approved by the City Commission at two (2) publicly noticed hearings. Any application related to a particular phase, or any portion thereof, shall only require the consent, acknowledgment and/or joinder of the then owner(s) of such phase. In the event that there is a recorded homeowners, master, condominium and/or other association covering the property, any phase or any portion thereof, said association may (in lieu of the signature or consent of the individual members or owners), on behalf of its members and in accordance with its articles of incorporation and bylaws, consent to any proposed modification, amendment, or release by a written instrument executed by the association. Any 19 Miami Design District SAP RFD Development Agreement consent made pursuant to a vote of an association shall be evidenced by a written resolution of the association and a certification executed by the secretary of the association's board of directors affirming that the vote complied with the articles of incorporation and the bylaws of the association. For purposes of this Agreement, references to "condominium association" or "association" shall mean any condominium or other association or entity, including master association, as applicable, which governs any portion of the Subject Property. 30. Authorization to Withhold Permits and Inspections. In the event the Developer is obligated to make payments or improvements under the terms of this Agreement or to take or refrain from taking any other action under this Agreement, and such obligations are not performed as required, in addition to any other remedies available, the City is hereby authorized to withhold any further permits, and refuse any inspections or grant any approvals until such time this Agreement is complied with, subject to the written notice and cure period as established in Section 40 of this Agreement . 31. Exclusive Venue, Choice of Law, Specific Performance. It is mutually understood and agreed by the parties hereto, that this Agreement shall be governed by the laws 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 provision hereof shall be instituted only in the courts of the State of Florida or federal courts and venue for any such actioi,sha lie exclusively in a court of competent jurisdiction in Miami -Dade Couix. addition to any other legal rights, the City and the Developer shall each have,igl to specific performance of this Agreement in court. Each party shall bear ?ow ►i attorney's fees. Each party waives any defense, whether asserted by mcAlui.io�v pleading, that the aforementioned courts are an improper or inconvenient:Alue..�, Moreover, the parties consent to the personal jurisdiction of the aforemeied` courts and irrevocably waive any objections to said jurisdiction. The Ifities�O irrevocably waive any rights to a jury trial. r.,� 32. Severability. Invalidation of any terms or provisions of this Agreement, by judgment of court, in no way shall affect any of the other terms or provisions of this Agreement, which shall remain in full force and effect, provided the fundamental terms and provisions of this Agreement remain legal and enforceable. 33. No Oral Change or Termination. This Agreement and the exhibits and attachments constitute the entire agreement between the Parties with respect to the components of the Miami Design District Retail Street SAP discussed herein. This Agreement supersedes any prior agreements or understandings between the Parties with respect to the subject matter hereof. 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 and after two (2) public hearings before the City Commission. This Agreement cannot be changed or terminated orally. 20 Miami Design District SAP RFD Development Agreement 34. Compliance with Applicable Law. Subject to the terms and conditions of this Agreement, throughout the term of this Agreement, the Developer shall comply with all applicable federal, state, and local laws, rules, regulations, codes, ordinances, resolutions, administrative orders, permits, policies and procedures, and orders that govern or relate to the respective Party's obligations and performance under this Agreement, all as they may be amended from time to time. 35. Voluntary Compliance. The Parties agree that in the event all or any part of this Agreement is struck down by judicial proceedings or preempted by legislative action, the Parties shall continue to honor the terms and conditions of this Agreement to the extent allowed by law. 36. Representations; Representatives. Each Party represents to the other that this Agreement has been duly authorized, delivered, and executed by such Party with the legal authority to do so and therefore this Agreement constitutes the legal, valid, and binding obligation of such party, enforceable in accordance with its terms. 37. No Exclusive Remedies. No remedy or election given by any provision in this 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 at law or equity arising from such event of default (other than any remedy which may be available at law or inequity which permits the termination of this Agreement), except where otherwise eXrrestl provided. 38. Failure to Exercise Rights not a Waiver: Waiver Provisions. The failure'! ann' party to promptly exercise any right arising hereunder shall not constitute Giver • of such right unless otherwise expressly provided herein. No waiver or breactanys,. provision of this Agreement shall constitute a waiver of any subsequent breaorA-4the same or any other provision hereof, and no waiver shall be effective unless n a ink 0) writing. r 39. Events of Default. (a) The Developer shall be in default under this Agreement if any of the following events occur and continue beyond the applicable grace period: the Developer fails to perform or breaches any term(s), covenant(s), or condition(s) of this Agreement, which breach 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 the 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(s), covenant(s), or condition(s) of this Agreement and such failure is not cured within thirty (30) days after receipt of written notice from the 21 Miami Design District SAP RFD Development Agreement Developer specifying the nature of such breach; provided, however, that if such breach cannot reasonably be cured within thirty (30) days, the City 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. (c) It shall not be a default under this Agreement if either party is declared bankrupt by a court of competent jurisdiction. All rights and obligations in this Agreement shall survive such bankruptcy of any party. The Parties hereby forfeit any right to terminate this Agreement upon the bankruptcy of the other party. of the redevelopment of the Subject Property., 40. Remedies Upon Default. ;, , C (a) Neither party may terminate this Agreement upon the default of the otherpay, b+ t' shall have all of the remedies enumerated herein. Nevertheless, the parties ef'serve their right to request that a court declare this Agreement rescinded or terminated due to a material breach which has not been cured. (d) Notwithstanding the foregoing or anything contained in this Agreement to the contrary, providing the Miami City Commission has approved an Assignment of this Agreement following a public hearing noticed at the cost of a Developer (i) a default by any successor(s) or assignee(s) of the Developer of any portion of this Agreement shall not be deemed to be a breach by (A) the Developer, or (B) any other successor or assignee of the Developer; and (ii) a default by the Developer under this Agreement shall not be deemed to be a breach by any successor(s) or assignee(s) of the Developer of their respective rights, duties, or obligations under this Agreement. For purposes of clarity, the redevelopment of the Subject Property may be developed by multiple parties in multiple phases over the next several years. Any actual or alleged default by a developer of a portion(s) or phase) ogthe redevelopment of the Subject Property, including, but not limited to, the 13 velq&r, j shall not cause, nor be treated, deemed, or construed as a default Aran developer or Party with respect to any other portion(s), phase(s), or co— neres) '2 a3 - nrn (b) Upon the occurrence of a default by a party to this Agreement not cured within the applicable grace period, the Developer and the City agree that any party may seek specific performance of this Agreement, and that seeking specific performance shall not waive any right of such party to also seek monetary damages, injunctive relief, or any other relief other than termination of this Agreement. 41. Assignment or Transfer. This Agreement shall be binding on the Developer and its heirs, successors, and assigns, including the successor to or assignee of any Subject Property Interest. The Developer, at its sole discretion, may assign, in whole or in part, this Agreement including any of its rights and obligations hereunder, or may extend the benefits of this Agreement, to any holder of a Property Interest without the prior written consent or any other approval of the City. The City shall be notified in writing within thirty (30) days after any assignment or transfer. Nothing contained herein shall be deemed to be a dedication, conveyance or grant to the public in general 22 Miami Design District SAP RFD Development Agreement nor to any persons or entities except as expressly set forth herein. 42. Obligations Surviving Termination Hereof. Notwithstanding and prevailing over any contrary term or provision contained herein, in the event of any lawful termination of this Agreement, the following obligations shall survive such termination and continue in full force and effect until the expiration of a one (1) 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 law provisions contained herein; (ii) rights of any party arising 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 effective beyond the expiration or permitted early termination hereof. 43. Lack of Agency Relationship. Nothing contained herein shall be construed as establishing an agency relationship between the City and the Developer and neither the 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 contractors, agents, and employees shall not be deemed contractors, agents, or employees of the Developer or its subsidiaries, divisions or affiliates. 44. Indemnification. Developer agrees to indemnify, defend, and hold harmless ripe CitA from and against any and all claims, suits, appeals, demand, liabilities, and csesar action of any nature by or on behalf of any person, firm or corporation, ,asa ist dig City relating to or arising from this Agreement, the SAP approval, air r at 5 Development on the Property pursuant to this Agreement and from and agla st costs, fees, expenses, liabilities, any orders, judgments, or decrees which i y be, entered and from and against all costs for attorneys' fees, expenses, and lti'ititiec incurred in the defense of such claim or in the investigation thereof. In teverfQ? that any action or proceeding is brought against the City by reason of a irrf;) Developer, upon notice from the City, shall, at its expense, defend the actin or proceeding by counsel chosen by the City, including the City Attorney's office or outside counsel. The City retains the right to make all decisions with respect to its representations in any legal proceeding, including its inherent right to abandon or settle litigation. 45. Amendment or Termination by Mutual Consent. This Agreement may not be amended or terminated during its term except by mutual agreement of the Developer and its successors and assigns, and the City in writing. Prior to amending or terminating this Agreement, the City Commission shall hold two (2) duly noticed public hearings 46. No Third -Party Beneficiary. No persons or entities other than the Developer and the City, permitted successors and assigns, shall have any rights whatsoever under this Agreement. 23 r.C„. Miami Design District SAP RFD Development Agreement 47. Recording. This Agreement shall be recorded in the Public Records of Miami -Dade County, Florida at the Developer's expense and shall inure to the benefit of the City. A copy of the recorded Development Agreement shall be provided to the City Clerk and City Attorney within two (2) weeks of recording. 48. No Conflict of Interest. The Developer agrees to comply with Section 2-612 of the City Code as of the Effective Date, with respect to conflicts of interest and with the State of Florida Ethics Code, and the Miami -Dade County Conflict of Interest and Code of Ethics Ordinance. 49. 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 agreement. 50. Estoppel Certificate. Upon request by any Party to this Agreement, the other Party or its duly authorized representative will deliver to the requesting Party, within thirty (30) days after such request is made, a certificate in writing certifying (a) that this Agreement is unmodified and in full force and effect (or if there have been any modifications, a description of such modifications and confirmation that this Agreement as modified is in full force and effect); (b) that to the best knowledge, information and belief of such Party, the requesting Party is not, at that time, in default under any provision of this Agreement, or, if in default, the nature thereof in detail; (c) to the best knowledge of such Party, whether such Party has a claim against any other Party under this Agreement, and, if so, the nature thereof and the dollar amount of such claim; and (d) such other matters as such requesting Party or its lender may reasonably request. Each Party further agrees that such certificate shall be in a form reasonably acceptable to the City Attorney and may be relied upon by (1) any prospective purchaser of the fee or mortgage or assignee of any mortgage on the fee of the Subject Property or any portion thereof. Should the City fail to execute the requested estoppel certificate within the aforementioned time period, the City's non - response shall be presumed to indicate the Developer Party's compliance with the terms of the Agreement. NOW, WHEREOF, the City and the Developer have caused this Agreement tOoe clay executed. Mr' g I [Execution Pages for the City and the Developer Follow] N : W 24 Miami Design District SAP RFD Development Agreement ". Witnesses: RFD North 39, LLC., a Florida limited liability company Print Name: Print Name: STATE OF FLORIDA ) )SS COUNTY OF MIAMI-DADE) By: Name: Title: eAt The foregoing instrument was acknowledged before me this day of 2023, by , as of RFD North 39, LLC, a Florida limited liability company. Personally Known or Produced Identification Type of Identification Produced NOTARY SIGNATURE Print or Stamp Name: Notary Public, State of Florida Commission No.: N/A My Commission Expires: 25 Miami Design District SAP RFD Development Agreement Witnesses: RFD North 40, LLC., a Florida limited liability company By: Print Name: Name: �'�: , Title: 4 rel Print Name: =c, C) t cnp-w N rid STATE OF FLORIDA`�' )SS 5 01 c? COUNTY OF MIAMI-DADE) ` i" CA, rr. — The foregoing instrument was acknowledged before me this day of 20, by , as of RFD North 40, LLC, a Florida limited liability company. Personally Known or Produced Identification Type of Identification Produced NOTARY SIGNATURE Print or Stamp Name: Notary Public, State of Florida Commission No.: N/A My Commission Expires: 26 Witnesses: Print Name: Print Name: STATE OF FLORIDA ) )SS COUNTY OF MIAMI-DADE) Miami Design District SAP RFD Development Agreement c �' 0 . ^Cri ar W rn RFD South 40, LLC., a Florida limited liability company By: Name: Title: The foregoing instrument was acknowledged before me this day of 2023, by , as of RFD South 40, LLC, a Florida limited liability company. Personally Known or Produced Identification Type of Identification Produced NOTARY SIGNATURE Print or Stamp Name: Notary Public, State of Florida Commission No.: N/A My Commission Expires: 27 Miami Design District SAP RFD Development Agreement CITY OF MIAMI, FLORIDA By: Arthur Noriega, City Manager ATTEST: By: Todd B. Hannon, City Clerk APPROVED AS TO FORM AND CORRECTNESS: By: Victoria Mendez, City Attorney 28 r s1 Miami Design District SAP RFD Development Agreement Exhibit "A" Legal Descriptions of Subject Property Owner: RFD North 40, LLC MAP #65: SUBJECT PROPERTY STREET ADDRESS(ES): SUBJECT PROPERTY LEGAL DESCRIPTION: 11AP #66: SUBJECT PROPERTY STREET ADDRESS(ES): SUBJECT PROPERTY LEGAL DESCRIPTION: I NE 40th ST (Folio No.: 01-3124-027-0210) Lots 19, 20, 21, 22, 23 and 24, less the West 10 feet of lots 23, 22, 23 awl 24, all in Block 2, of amended Plat of COMMERCIAL BILTMORE, according to the Plat thereof, as recorded in Plat Book 6, Page 132. of the Public Records of Miami -Dade County. Florida 35 NE 40th Street (Folio No.: 0I-3I24-027-0I80) Lots 14. 15, 16. 17 and 18. In Block 2, of amended Plat of COMME RCIAL B1 LTMORE, according to the map or plat thereof, as recorded in Plat Book 6, Page 132, of the Public Records of Miami Dade County, Florida. Together with the terms, provisions and conditions contained in that certain declaration of restrictive covenants in favor the city of Miami. Florida, a municipality of the state of Florida. recordal in official records book 23151, page 4667 # 65 and 66 above have been consolidated into one address 35 NE 41) Street- Folio No. (11-3124-027-0180 4� 29 Exhibit "A" Cont. Owner: RFD South 40, LLC sIAP#67: SUBJECT PROPERTY STREET ADDRESS(ES): SUBJECT PROPERTY LEGAL DESCRIPTION: Miami Design District SAP RFD Development Agreement 3995 N Miami Avenue (Folio No.: 01-3124-027-0430) The West 102 feet of lots 21, 22, 23 and 24, less the west 10 feet thereof Block j, of amended Plat of COMMERCIAL BILTMORE, according to the plat N1AP #68: SUBJECT PROPERTY STREET ADDRESS(ES): SUBJECT PROPERTY LEGAL DESCRIPTION: %IAP #69: SUBJECT PROPERTY STREET ADDRESS(ES): SUBJECT PROPERTY LEGAL DESCRIPTION: NIAP#70: SUBJECT PROPERTY STREET ADDRESS(ES): SUBJECT PROPERTY LEGAL DESCRIPTION: %IAP #71: SUBJECT PROPERTY STREET ADDRESS(ES): SUBJECT PROPERTY LEGAL DESCRIPTION: NIAP #72: SUBJECT PROPERTY STREET ADDRESS(ES): SUBJECT PROPERTY LEGAL DESCRIPTION: thereof, as recorded in Plat Book 6, Page 132, of the Public Records of Miami -Dade County, Florida 10 NE 40th Street (Folio No.: 01-3124-027-0420) Lots 19 and 20 and the East 5 feet of Lots 21, 22, 23 and 24, Block 3, of amended plat of COMMERCIAL BILTMORE, according to the Plat thereof, as recorded in Plat Book 6, Page 1.32. of the Public Records of Miami - Dade County, Florida; and the North 2 inches of Lot 10. and the North 2 inches of the East 2 feet of Lot 11. Block 1. Of f3ILTNIORE COURT. According to the Plat thereof as recorded in Plat Book 7, Page 37, Public Records of Miami -Dade County, Florida 28 NE 40th Street (Folio No.: 01-3124-027-0400) Lots 17 and 18, Block j, of amended Plat of COMMERCIAL BILTMORE, according to the Plat thereof, as recorded in Plat Book 6, Page 132, of The Public Records of Miami -Dade County, Florida 40 NE 4(Y'' Street (Folio No.: 01-3124-027-0390) Lots 15 and 16, Black 3, of amended Plat of COMMERCIAL BILTMORE, according to the Plat thereof, as recorded in Plat Book 6, Page 132, of the Public Records of Miami -Dade County, Florida 50 NE 40th Street (Folio No.: 01-3124-027-0360) Las 12, 13 and 14, Block 3, of amended Plat of COMMERCIAL BILTMORE, according to the Plat thereof, as recorded in Plat Book 6, Page 132, of the Public Records of Miami -Dade County, Florida 56 NE 4(kh Street (Folio No.: 01-3124-027-0350) Lots 10 and 11, Block 3, of amended Plat of COMMERCIAL BILTMORE, according to the plat thereof recorded in Plat Book 6, Page 1.32. Public Records of Miami -Dade County, Florida ty c # 67 through #72 above have been consolidated into one address 3995 N Miami Ave- Folio No. 01-31227-e21 04_30f+1 c 30 770 :Z. Exhibit "A" Cont. Owner: RFD North 39, LLC Miami Design District SAP RFD Development Agreement MAP #73: 3925 N Miami Avenue (Folio No.: 01-3124-029-0100) SUBJECT PROPERTY STREET ADDRESS(ES): Lot 11. Less the North 2 inches of the East 2 feet and less the West 10 feet. And Lot 12 less the West 10 feet Block SUBJECT PROPERTY LEGAL DESCRIPTION: I. Of BILTMORE COURT, as recorded in Plat E3ook 7 Page 37, of the Public Records of Miami Dade County, Florida NEAP #74: SUBJECT PROPERTY STREET A DDRESS(ES): SUBJECT PROPERTY LEGAL DESCRIPTION: 15 NE 39th Street (Folio No.: 01-3124-029-0110) Lot 13, Block 1, ofB1LTMORE COURT, according to the Plat thereof as recorded in Plat Book 7 Page 37, of the Public Records of Miami -Dade County, Florida; less the West 10 feet of said Lot 13, and less the following described property: From the Southeast corner of lot 13, Block 1, of BIL`fMORE COURT. according to the Plat thereof as recorded in Plat Book 7 Page 37, of The Public Records of Miami -Dade County, Florida; thence run West along the South line of said lot 13 for a distance of 82.00 feet to the point of beginning of the following described parcel of land; thence run northwesterly along the arc of a tangential curve to the right hating a radius of 15 feet through a central angle of 90'00'00" with an arc distance of 23.56 feet to a point of tangency on a line 10 feet East of and parallel with the West line of said Lot 13; thence run south along a line 10 feet East of and parallel with the West line of said lot 13 for a distance of 10 feet to a point; thence run southeasterly along the arc of a tangential curve to the left having a radius of 25 feet through a central angle of 36'52'12" with an arc distance of 16.09 feet to the point of beginning HEAP #75: 21 NE 39th Street (Folio No.: 01-3124-029-0080) SUBJECT PROPERTY STREET ADDRESS(ES): Lots 9 and 10, less the North 0.28 feet of Lot 10, Block 1. Of BILTMORE COURT. According to the map or Plat SUBJECT PROPERTY LEGAL DESCRIPTION: thereof, as recorded in Plat Book 7, Page 37, of the public Records of Miami - Dade County, Florida 31 1V Cla Exhibit "A" Cont. RFD North 39, LLC MAP #76: SUBJECT PROPERTY STREET ADDRESS(ES): SUBJECT PROPERTY LEGAL DESCRIPTION: MAP #77: Miami Design District SAP RFD Development Agreement 45 NE 39th Street (Folio No.: 01-3I24-029-00(10) Lots 7 and 8, Block I, of I3iltmore Court, according to the Plat thereof, as recorded in Plat Book 7, Page 37, of the Public Records of Miami -Dade County, Florida ALSO described as: Begin at the Southwest comer of said Lot 8, Block 1, said point being an the North right of way line of NE 39th street. thence N00°00'00"e, along the West line of said Lot 8 a distance of 93.45 feet; thence N90°00'00"e, along the North line of said Lots 7 and 8 Block I a distance of 100.00 feet: thence N00 00'00"e, along the East line of said Lot 7, Block 1 a distance of 93.45 feet to the North right of way line of NE 39th street: thence N90=00'00"w, along said North right of way line of NE 39th street a distance of 100.00 feet to the point of beginning SUBJECT PROPERTY STREET ADDRESS(ES): 53 NE 39th Street (Folio No.: 01-3124-029-0050) Lot 6, Block 1, of BILTMORE COURT, according to the SUBJECT PROPERTY LEGAL DESCRIPTION: Plat thereof, as recorded in Plat Book 7, Page 37, of the Public Records of Miami -Dade County. Honda MAP #78,79,80: SUBJECT PROPERTY STREET ADDRESS(ES): SUBJECT PROPERTY LEGAL DESCRIPTION: 55 NE 39th Street (Folio No.: 01-3124-029-0040) 75 NE 39th Street (Folio No.: 01-3124-029-0030) 81 NE 39th Street (Folio No.: 01-3124-029-0020) Lots 3 4 and 5, Block 1, BILTMORE COURT, according to the Plat thereof recorded in Plat Book 7, Page 37, Public Records of Miami -Dade County, Florida #73 through 80 above have been consolidated into one address 21 NE 39 Street- Folio No. 01-3124-029-0080 32 Exhibit "B" Legal Descriptions of SAP Area Miami Design District SAP RFD Development Agreement cnr rri11 fil t-- co Miami Design District SAP RFD Development Agreement Exhibit "C" Miami Design District Retail Street SAP Regulating Plan Miami Design District SAP RFD Development Agreement EXHIBIT "C" Cont. Concept Book 35 This Instrument Was Prepared By, Record and Return To: Iris V. Escarra, Esq. Greenberg Traurig, P.A. 333 S.E. 2nd Avenue Suite 4400 Miami, Florida 33131 **DRAFT** (Reserved) DEVELOPMENT AGREEMENT BETWEEN THE CITY OF MIAMI, FLORIDA AND RFD NORTH 39 LLC, RFD NORTH 40 LLC, RFD SOUTH 40 LLC, REGARDING APPROVAL OF THE MIAMI DESIGN DISTRICT RETAIL STREET SPECIAL AREA PLAN This is a Development Agreement ("Agreement") made this day of 2023 by and between RFD North 39 LLC, RFD North 40 LLC, RFD South 40 LLC, Florida limited liability companies (collectively, the "Developer"), and the City of Miami, Florida, a municipal corporation and a political subdivision of the State of Florida (the "City") (the Developer and the City are together referred to as the "Parties"). WHEREAS, the Developer is the owner of certain properties as more fully described in Exhibit A, attached and incorporated herein (collectively, the "Subject Property"); and WHEREAS, the Miami Design District (the "District") spans an area generally bounded on the east by Biscayne Boulevard, south by NE 38th Street, on the west by North Miami Avenue, and on the north by NE 40th Street; and WHEREAS, the District is an internationally recognized center for furniture design and a burgeoning home for the arts, high fashion, restaurants, and a center for creative employment; and WHEREAS, the status of the District is consistent with the City's vision to develop a world class destination for the arts, fashion, and design, and, as such, the City wishes to encourage redevelopment within the District; and WHEREAS, the development of multi -family residential housing and lodging uses within the District will complement existing retail and restaurants, encourage pedestrian Miami Design District SAP RFD Development Agreement activity, and provide additional housing and lodging options in the urban core proximate to local and regional transportation; and WHEREAS, a process exists within the City's zoning code ("Miami 21"), known as a "Special Area Plan" or "SAP," which allows parcels of more than nine (9) abutting acres to be master planned to allow greater integration of public improvements and infrastructure, and greater flexibility so as to result in higher or specialized quality building and streetscape design; and WHEREAS, on July 26, 2012, the City Commission approved the Miami Design District Retail Street Special Area Plan ("SAP") for a 19.08 acre area in the District under Ordinance 13334, and the City subsequently amended the SAP, which was subsequently amended; and WHEREAS, on the City Commissionapproved the fifth amendment to the SAP under Ordinance No. that added the Subject Property and the properties generally located at 27 NW 39 Street, and 3801/3819 N Miami Avenue to the SAP, as amended, increasing the total area to approximately 25.491 acres; and WHEREAS, Sec. 3.9.1 of Miami 21 requires development within the SAP to occur pursuant to a recorded development agreement between the property owner(s) and the City; and WHEREAS, the City and Developer wish for development of the Subject Property to proceed in a manner consistent with the Miami Comprehensive Neighborhood Plan ("Comprehensive Plan") and the City's land development regulations; and WHEREAS, the Developer seeks to have, the Subject Property included within the SAP and subject to the regulations applicable within the SAP and proffers this Development Agreement (the "RFD Development Agreement" or "Agreement") in accordance with the requirements of Section 3.9.1 of Miami 21; and WHEREAS, Chapter 163, Florida Statutes (2022), authorizes and provides for local governments to enter into development agreements with any person or entity having a legal or equitable interest in real property located within its jurisdiction; and WHEREAS, the RFD Development Agreement will govern development of the Subject Property; and WHEREAS, the City and Developer wish for development within the District to proceed substantially in accordance with the Miami Design District Retail Street SAP Regulating Plan and Design Concept Book, as modified on pursuant to Ordinance No. , both of which are attached as composite Exhibit "C" hereto and incorporated herein by reference ("Regulating Plan and Design Concept Book"); and WHEREAS, lack of certainty in the approval of development can result in a waste of economic and land resources, discourage sound capital improvement planning and financing, escalate the cost of housing and development, and discourage commitment to 2 Miami Design District SAP RFD Development Agreement comprehensive planning; and WHEREAS, assurance to the Developer that they may proceed in accordance with existing laws and policies, subject to the conditions of a development agreement, strengthens the public planning process, encourages sound capital improvement planning and financing, assists in assuring there are adequate capital facilities for the development, encourages private participation in comprehensive planning, and reduces the economic costs of development; and WHEREAS, the modifications identified above will ensure the continued vitality of the District, and provide additional employment opportunities for the neighborhood and region; and WHEREAS, the City Commission, pursuant to Ordinance No. adopted , 2023 has authorized the City Manager to execute this Agreement upon substantially similar terms and conditions as set forth herein below, and the Developer has been duly authorized to execute this Agreement upon the terms and conditions set forth below. NOW THEREFORE, in consideration of the mutual covenants and agreements hereinafter contained, the Parties mutually agree and bind themselves as set forth herein: 1. Consideration. 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. 2. Rules of Legal Construction. For all purposes of the 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 terms 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 the 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 attachments and this Agreement. 3 Miami Design District SAP RFD Development Agreement 3. Definitions. Capitalized terms which are not specifically defined herein shall have the meaning given in Miami 21. "Agreement" means this Development Agreement between the City and the Developer. "City" means the City of Miami, a municipal corporation and a political subdivision of the State of Florida, and all depaitments, agencies and instrumentalities subject to the jurisdiction thereof. "City Charter" means the municipal Charter of the City of Miami. "City Code" or "Code" means the City of Miami Code of Ordinances. "Comprehensive Plan" means the comprehensive plan known as the Miami Comprehensive Neighborhood Plan, adopted by the City pursuant to Chapter 163, Florida Statutes (2022), meeting the requirements of Section 163.3177, Florida Statutes (2022), Section 163.3178, Florida Statutes (2022) and Section 163.3221(2), Florida Statutes (2022), which are in effect as of the Effective Date. "Concept Book" means the Concept Book prepared by Arquitectonica, dated , and attached as Exhibit C. "County" means Miami -Dade County, a political subdivision of the State of Florida. "Development" means the carrying out of any building activity, the making of any material change in the use or appearance of any structure or land, or the dividing of land into three (3) or more parcels and such other activities described in Sections 163.3221(4) and 380.04, Florida Statutes (2022). "Development permit" 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. "Effective Date" means the date of recordation of the executed, original version of this Agreement. "Existing Zoning" is (a) Miami 21 Code, specifically including the Miami Design District Retail Street SAP Regulating Plan and Design Concept Book, and related modifications to the Transect designations of lots within the SAP Area, and (b) the provisions of the City Charter and City Code which regulate development, as amended, which together comprise the effective land development regulations governing development of the SAP. "Land" means the earth, water, and air, above, below, or on the surface and 4 Miami Design District SAP RFD Development Agreement includes any improvements or structures customarily regarded as land. "Land Development Regulations" shall be as defined in Chapter 62, Section 62-11 of the City Code of Ordinances and includes the City's Comprehensive Plan regulations and Miami 21. "Laws" means all ordinances, resolutions, regulations, comprehensive plans, land development regulations, and rules adopted by a local government affecting the development of land. "Miami 21" also known as the Miami 21 Code means City Ordinance 13114 as amended, as amended through the Effective Date, which is' the Zoning Ordinance of the City of Miami. "Property Interest" any ownership interest in any SAP Property. "Public Facilities" means major capital improvements, including, but not limited to, transportation, sanitary sewer, solid waste, drainage, potable water, educational, parks and recreational, streets, parking and health systems and facilities. "SAP Area" means the lots and properties which comprise the SAP as depicted on the boundary map and legal descriptions attached as Exhibit B and as depicted on Sheets A1.4 and A1.5 of the Concept Book. "Special Area Plan" or "SAP" refers to the Miami Design District Retail Street Special Area Plan, including the Regulating Plan and Concept Book. 4. Purpose. The purpose of this Agreement is for the City to authorize the Developer to redevelop the Subject Property pursuant to the SAP. This Agreement will establish, as of the Effective Date, the land development regulations that will govern the development of the Subject Property, thereby providing the Developer with additional certainty during the development process. This Agreement satisfies the requirements of Section 3.9.1(f), Miami 21. 5. Intent. The Developer and the City intend for this Agreement to be construed and implemented so as to effectuate the purpose of the Miami Design District Retail Street SAP, this Agreement, the Comprehensive Plan, Existing Zoning, and the Florida Local Government Development Agreement Act, s. 163.3220 - 163.3243, Florida Statutes (2022), all of which are applicable to this Agreement. 6. Legal Description of Land, Names of Legal Owners, Applicability. This Agreement only applies to the Subject Property, as identified and legally described in Exhibit A. The Subject Property's legal and equitable owners are listed along with the legal descriptions in Exhibit A. 7. Term of Agreement, Effective Date and Binding Effect. This Agreement shall have a term of thirty (30) years from the Effective Date and shall be recorded in the 5 Miami Design District SAP RFD Development Agreement public records of Miami -Dade County and filed with the City Clerk. The term of this Agreement may be extended by mutual, written consent of the Parties subject to public hearing(s), pursuant to Section 163.3225, Florida Statutes (2022). The Developer shall bear the advertising and related noticing costs of such public hearing(s). This Agreement shall become effective on the Effective Date and shall constitute a covenant running with the land that shall be binding upon, and inure to the benefit of the Parties, their successors, assigns, heirs, legal representatives, and personal representatives. 8. Zoning Permitted Development Uses, Building Densities and Intensities. (a) Miami Design District Retail Street SAP Designation. The City has designated the Subject Property as being located within the "Miami Design District Retail Street SAP" on the official Zoning Atlas of the City, pursuant to the applicable procedures in Miami 21. The Regulating Plan and Concept Book provide for any deviations from the underlying regulations of Miami 21. In approving the SAP, the City has determined that the uses, intensities and densities of development permitted there under are consistent with the Comprehensive Plan and the Existing Zoning. Deviations to the regulations in the City Code are articulated further in this Agreement. Where the standards in the Regulating Plan, Concept Book and/or Development Agreement are silent, the underlying Miami 21 standards and requirements shall apply. Any amendments to, or recission of, the underlying Miami 21 after the that negatively impact or downzone any portions of the Subject Property shall not apply. (b) Density, Intensity, Uses and Building Heights. As of the Effective Date and pursuant to the SAP, the density and intensity proposed for the SAP are permitted by the Existing Zoning and are consistent with the Comprehensive Plan. Adjacent and non -adjacent parcels within the SAP Area which have unutilized density or unutilized FLR, located within the T6 Urban Core transect zone ("T6 Properties") may transfer such unutilized density or unutilized FLR ("Remaining Aggregate Density or Remaining Aggregate FLR") to other T6 Properties within the SAP Area, provided however that each individual project on those T6 Properties must comply with the limits imposed by the SAP Regulating Plan and the Comprehensive Plan. Notwithstanding the forgoing, density and intensity shall be counted on an aggregate basis for all T6 Properties located within the SAP; such that the total aggregated density and intensity throughout the T6 Properties shall not surpass the aggregated as -of -right maximum (i.e. base) density and intensity permitted in the underlying T6 Properties. Aggregated density and intensity, as well as the Remaining Aggregate Density and Remaining Aggregate FLR will be tracked via an aggregated rights tracking sheet ("Tracking Sheet") and reviewed annually as 6 Miami Design District SAP RFD Development Agreement part of the Annual Review process as indicated in Section 19. ii. As of the Effective Date and pursuant to the SAP, the Uses proposed for the SAP are permitted by the Existing Zoning and are consistent with the Comprehensive Plan. iii. As of the Effective Date and pursuant to the SAP, the Heights proposed for the SAP are permitted by the Existing Zoning and are consistent with Miami 21 and the densities are consistent with the presently adopted Miami Comprehensive Neighborhood Plan (the "Comprehensive Plan"). iv. Nothing herein shall prohibit the Developer from requesting a change of zoning, pursuant to Article 7 of Miami 21, to increase the density or intensity of development permitted by the underlying Transect designation of that certain property forming part of the Miami Design District Retail Street SAP by amending the SAP and this Agreement. v. SAP Properties having an underlying transect designation of T6 Urban Core are eligible to transfer unutilized density or FLR between development sites, up to the maximums set forth in the Regulating Plan. This process is separate and apart from the Public Benefits Program set forth in Section 3.14 of Miami 21 and Section 3.14 of the Regulating Plan vi. The City's Comprehensive Plan currently permits the transfer of densities within certain specified areas s to permit densities in excess of the density limits set forth in a particular Future Land Use Map category. Nothing herein shall prohibit the Developer from requesting such density transfers within the SAP, in the event the City adopts Land Development Regulations related to the Transit Sheds or Transit Oriented Development areas. 9. Prohibition on Downzoning. (a) The Comprehensive Plan, this Agreement, and the SAP shall govern development of the Subject Property for the duration of the Agreement. The City's Laws and policies adopted after the Effective Date may be applied to the Subject Property only if the determinations required by Section 163.3233(2), Florida Statutes (2022) have been made after thirty (30) days written notice to the Developer and after a public hearing or as otherwise provided herein. (b) Pursuant to Section 163.3233(3), Florida Statutes (2022), this prohibition on downzoning supplements, rather than supplants, any rights that may vest to the Developer under Florida or Federal law. As a result, the Developer reserves the right to challenge any subsequently adopted changes to land development regulations which are in derogation of this Agreement on (a) common law principles including, but not limited to, equitable estoppel and vested rights, or 7 Miami Design District SAP RFD Development Agreement (b) statutory rights which may accrue by virtue of Chapter 70, Florida Statutes (2022). 10. Public Facilities. In the event that the Existing Zoning or the Comprehensive Plan requires the Developer to provide additional Public Facilities to address any deficiencies in levels of service at the time of obtaining the required building permits, the Developer will provide such Public Facilities consistent with the timing requirements of Section 163.3180, Florida Statutes (2022). The Developer shall be bound by the City impact fees and assessments in existence as of the date of recordation of this Agreement 11. Reservation of Land Dedicated for Public Purposes. As proposed in the Concept Book, as amended, a minimum of five percent (5%) of the Subject Property is reserved as land dedicated for a public purpose as a Civic Space pe as detailed in Section 3.9.1(e) of Miami 21. 12. Future Development Review. Future development rn the SAP Area shall proceed pursuant to the process established in the Regulating Plan and Concept Book. The criteria to be used in determining whether future development shall be approved are consistency with the Comprehensive Plan, Miami 21, this Agreement, and consistency with the SAP, as applicable. 13. Environmental. The City finds that the redevelopment of the Subject Property will confer a significant net improvement upon the publicly accessible tree canopy in the area by providing trees at the Subject Property. The City and the Developer agree that the Developer will comply with the intent and requirements of Chapters 17 and 62 of the City Code, and Article 9 of Miami 21, by performing tree replacement as follows. (a) Off -site replacement trees. Notwithstanding the requirements of Section 17-6(e) of the City Code, where tree replacement within the Subject Property is not possible, the Developer may enter into an agreement with the City to perform tree replacement on public property in the following order of priority: (i) within the SAP Area's Open Space and Civic Spaces; (ii) within a one (1) mile radius of the SAP Area; or (iii) within any City park subject to approval by the City. The City further agrees to facilitate the permitting and planting of replacement trees on all publicly owned property within the SAP Area, within a one (1) mile radius of the SAP Area and within City parks. The Developer undertaking tree replacement off -site for any parcel of land within the SAP Area shall agree to water, trim, root, prune, brace, or undertake any other necessary maintenance as may be required by the Public Works Department for a period of not greater than thirty (30) days after installation. The Developer undertaking any off -site tree replacement further agrees to warrant each such off -site replacement tree for a period of one (1) year after the date of installation. (b) Subject Property tree installation, maintenance and guarantee. For all trees placed within the SAP Area, Developer placing such trees shall install any 8 Miami Design District SAP RFD Development Agreement needed irrigation and corresponding water meters to support the growth of trees located within the right-of-way. The Developer undertaking tree replacement for any parcel of land shall agree to water, trim, root, prune, brace, or undertake any other necessary maintenance as may be required for trees located within the SAP Area. The Developer undertaking any such tree placement within the SAP Area further agrees to warrant each SAP Area tree for a period of one (1) year after installation. (c) Tree installation. The tree replacement chart below shall be used to determine whether Developer has satisfied the tree replacement requirements for any particular parcel of land as set forth in Sec. 17-6.(a) of the City Code. The chart below shall replace and supersede Chart 17.6.1.1. in the City Code. Tree Replacement Chart Total diameter of tree(s) to be removed (sum of inches at DBH) Total inches of replacement DBH required (12' minimum tree height) 2"- 3" 2" 4"- 6" 4" 7"- 12" 8" 13"- 18" 12" 19"- 24" 16" 25"- 30" 20" 31"- 36" 24" 37"- 42" 28" 43"- 48" 32" 49"- 60" 40" To determine whether the replacement requirements have been satisfied, calculate the total sum in inches of the diameter of the trees removed. The size of the replacement trees diameter at breast height (DBH) must equal the total inches of replacement DBH set forth in the above chart. Diameter measurement shall be rounded up to the <11/01nearest inch. If the sum of the diameter of trees to be removed exceeds a total of 60 inches, the additional inches shall be added cumulatively from the top of the chart, down to the bottom of the chart, to calculate the number of DBH for replacement trees. (d) e species. The chart set forth below shall replace and supersede Chart .6.2.1. in the City Code. All other requirements set forth in Sec. 17-6.(b) of the City Code shall apply within the SAP Area. Required total DBH for replacement trees Required minimum number of species 22"- 40" 2 9 41"- 100" 4 Miami Design District SAP RFD Development Agreement 101" or greater 6 (5) Tree installation. Developer shall install trees opportunistically within the public right-of-way, subject, at all times, to approval by the Department of Public Works. 14. Connectivity and Activity within Public Right -of -Way. (a) Connectivity. A critical element to the success of the Subject Property within the SAP is the connectivity within the public right-of-way. The redevelopment of the Subject Property which may include below -grade and/or elevated connections will facilitate ease of access, minimize pedestrian and vehicular conflicts, and reduce traffic impacts by enhancing internalized traffic circulation, reducing off -site impacts, and expanding parking capacity within the District. (b) The Developer recognizes that such connectivity and commercial usage may require approval of other governmental agencies such as Miami -Dade County. The City finds and determines that establishing such connectivity serves a public purpose, and further agrees to support the Developer's efforts to obtain any authorization to establish such below -grade and/or elevated connection where the approval of another governmental agency may be necessary. The City further finds that the authorization of such a connection below and/or above the public right-of-way shall in no way diminish access for firefighting apparatus or rescue and salvage operations; diminish traffic, transportation and circulation; or adversely impact the advancement of the safety, health, and general welfare within the City. Given the public benefits conferred upon the City through this Agreement, the provisions of Sec. 54-186 shall not apply to the Miami Design District Retail Street SAP. Activity within the Public Right -of -Way. Notwithstanding the limitations set forth in Sec. 54-186 of the City Code, as amended, the City shall permit above -grade pedestrian bridges to extend beyond the base building line and into the public right-of-way as permitted by Public Works, following approval by SAP Permit. (c) Construction of encroachments within the Public Right -of -Way. The City finds that the encroachments proposed by the Developer do not unduly restrict the use of the public right-of-way and are an essential element in the construction of the vehicular underpass and/or overpass within the same rights -of -way. The adoption of this Agreement shall serve to satisfy the requirements set forth in Sec. 55-14(b) of the City Code. 10 Miami Design District SAP RFD Development Agreement Notwithstanding the requirements of Sec. 55-14(c) of the City Code, the City agrees to waive any and all claims to payment of a user fee in connection with the construction of the aforementioned encroachments within the public rights -of -way and the use of the same for both vehicular travel and public parking. Further, this Agreement shall satisfy the requirements of Sec. 55-14(d) of the City Code. In consideration for authorizing the construction of the aforementioned encroachments, the Developer further covenant to: (1) Maintain the below -grade and/or elevated vehicular under/over passes in accordance with the Florida Building Code and the City Charter and Code. (2) Provide an insurance policy, in an amount determined by the city's risk manager, naming the City as an additional insured for public liability and property damage. The insurance shall remain in effect for as long as the encroachment(s) exist within the right-of-way. Should the Developer fail to continuously provide the insurance coverage, the City shall have the right to secure similar insurance policy in its name and place a special assessment lien against the owner's abutting private property for the total cost of the premium. (3) (d) No City Placement of Communications Kiosks. 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. 15. Alcoholic Beverage Sales. Upon approval of this Agreement, the distance separation requirements pursuant to Chapter 4 of the City Code, shall not apply to the Subject Property from an Alcohol Service Establishment located either within the District or outside the District. Each Alcohol Service Establishment permitted at the Subject Property, exclusive of bona fide, licensed cafes, restaurants, and other establishments where the sale of alcoholic beverages is incidental to the principal use of the sale of food, shall be permitted pursuant to the requirements of the Miami Design District Street Regulating Plan, attached hereto as part of Exhibit "B", and any applicable provision of Chapter 4 of the City Code not in conflict with the provisions of this Agreement. 16. Valet Parking. The Developer may utilize the uniform valet system located within the District to service the Subject Property generally, or may seek its own valet permits. Notwithstanding the limitations set forth in Sec. 35-305 of the City Code, a maximum of two (2) valet permits may be issued for the operation of a valet parking 11 Miami Design District SAP RFD Development Agreement ramp on the same side of the block at the Subject Property. 17. Temporary/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 within the SAP and therefore do not require a temporary or special event permit: event banners, farmers' markets, grand openings, holiday sales, outdoor sales, ground breakings, 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 or (2,100) two thousand one hundred guests, whichever is less. Although no special or temporary event permit is 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. Notwithstanding the above, for events which Developer and/or its tenant anticipates to exceed seventy five percent (75%) of the maximum permitted occupancy, inclusive of Open and Civic Space or (2,100) two thousand one hundred guests, whichever is less, the Developer, or its designee, must 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 fourteen (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 12 Miami Design District SAP RFD Development Agreement 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. (b) Notwithstanding the requirements of Section 62-535, a Temporary Use Permit ("TUP") can be issued for a maximum of 3 years. A TUP can be extended annually by the zoning administrator for up to 10 years, thereafter further requests for extensions must be approved by the City Commission. Areas under a TUP shall not require parking. Requests for TUPs shall be accompanied by a hurricane preparedness plan to be reviewed and approved by the City's Building Department. (c) Food trucks shall be permitted to operate on _, ate land within the SAP and the distance separation requirements set forth in Section 31-51(c)(4) of the City's Code of Ordinances shall not apply within the SAP. Food trucks and Food truck gatherings shall be permitted to park overnight and present at the same location up to seven days a week upon submittal of (i) a notarized letter of approval from a Developer Party and (ii) site plan approval via SAP permit; such Food truck or Food truck gatherings do not require a temporary event permit, special event permit or a temporary use permit. There is no limit to the number of Food truck gatherings that can occur monthly. Existing public restrooms within the SAP will generally satisfy the requirement to provide bathroom facilities for Food trucks and Food truck gatherings, unless additional bathrooms are found to be required in the site plan approval via SAP permit. Food truck operators will provide waste disposal for patrons and keep the area surrounding the Food truck(s) clear of waste and debris resulting from their services. 18. Public Benefits. (a) Civic Space. A minimum of 5% of the Subject Property will be reserved as Civic Space. (b) Civic and Open Space Improvements. The Developer will provide improvements to the Civic Space and Open Space at the Subject Property, conferring a benefit on the general public and patrons of the SAP Area. The 13 Miami Design District SAP RFD Development Agreement Developer shall strive to provide a minimum of ten percent (10%) of Open Space, but in no event less than six and a half percent (6.5%) of Open Space consistent with the requirements set forth in the Regulating Plan and Concept Book. Should the Open Space within the Subject Property within five (5) years of the Effective Date equal less than the aforementioned 10% goal, then the Developer shall make a cash contribution to the City's Public Parks and Open Space Trust Fund at the rate of $10.81 per sq. ft., as contemplated under Sec. 3.14.4(b)(3) o Miami 21, for the square footage comprising the difference between the 10% Open Space goal and the minimum requirement of 6.5% (c) North Miami Avenue. The Developer will activate the North Miami Avenue frontage at the Subject Property with an enhanced pedestrian experience including, but not limited to, direct pedestrian access, open spaces, or engaging facade treatments, as North Miami Avenue serves as the main North/South connector within the City. (d) Expansion of the District. The Developer is extending the highly successful District the West, expanding the high quality development for which the District is renowned. (e) Job Creation and Employment Opportunities. Generally, the Developer shall consult with local and state economic development entities regarding job training and job placement services for area City residents seeking employment opportunities with potential employers within the Subject Property. (f) Street Right of Way Improvements. Developer agrees to implement the non-standard right-of-way improvements adjacent to and abutting the Subject Property by replicating or complementing 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, such non-standard improvements in order to foster a uniform aesthetic throughout the SAP. Redevelopment of the Subject Property will also require infrastructure improvements as required under the City Code. 19. Compliance With Fire/Life Safety Laws. The Developer shall at all times in the development and operation of the Subject Property comply with all applicable laws, ordinances and regulations including life safety codes to insure the safety of all Subject Property and City residents and guests. Specifically and without limitation, the Developer will install and construct all required fire safety equipment and water lines with flow sufficient to contain all possible fire occurrences. 20. Local Development Permits. The redevelopment of the Subject Property may require additional permits or approvals from the City and any division thereof. Subject to required legal process and approvals, the City shall make a good faith effort to take all reasonable steps to cooperate with and facilitate all such approvals. Such approvals include, without limitation, the following approvals and permits and any successor or analogous approvals and permits: 14 Miami Design District SAP RFD Development Agreement (a) Waiver(s), Warrant(s), Exception(s), Variances, or SAP Permits; (b) Subdivision plat and/or waiver of plat approvals; (c) Public Works approvals; (d) Street Vacations and Closures; (e) Covenant or Unity of Title acceptance and the release of any existing Unities, Covenants or Declarations of Restrictions; (f) Water and Sanitary Sewage Agreement(s); (g) Paving and Drainage Plans and Permits; (h) Tree Removal Permits; (i) Demolition Permits; (j) Environmental Resource Permits; (k) Miami -Dade (and if applicable, City) Transit approvals; (1) Federal Aviation Administration and Miami -Dade Aviation Department determination(s) and approval(s); (in) Right of Way Encroachment permitf licenses; (n) Miami Parking Authority approvals; (o) Building permits; (p) Certificates of use and/or occupancy; (q) Temporary Use permits (r) Stormwater permits (s) Temporary Fence permits (t) Maintenance of Traffic approvals; and (u) Any other official action of the City, County, or any other government agency having the effect of permitting /regulating development of the SAP Area. In the event that the City substantially modifies its land development regulations regarding 15 Miami Design District SAP RFD Development Agreement site plan approval procedures, authority to approve any site plan for a project in the Subject Property shall be vested solely in the City Manager, with the prior, written recommendation of the Planning Director. Any such site plan shall be approved if it meets the requirements and criteria of the Existing Zoning, the Comprehensive Plan and the terms of this Agreement. 21. Necessity of Complying with Regulations Relative to Development Permits. The Developer and the City agree that the failure of this Agreement to address a 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 permitting requirements, conditions, fees, terms, licenses, or restrictions. Pursuant to Section 163.3241, Florida Statutes (2022), if state or federal laws are enacted after the execution of this development agreement which are applicable to and preclude the parties' compliance with the terms of this development agreement, this Agreement shall be modified or revoked as is necessary to comply with the relevant state or federal laws. 22. Consistency with Comprehensive Plan. The City finds that development of the SAP Area is in conformity with the Existing Zoning and is with the Comprehensive Plan. In the event that the Existing Zoning or the Comprehensive Plan requires the Developer to provide additional Public Facilities to accommodate the redevelopment of the Subject Property, the Development will provide such Public Facilities consistent with the timing requirements of Section 163.3180, Florida Statutes (2022). The Developer shall be bound by the City impact fees and assessments in existence as of the date of obtaining a building permit, per Chapter 13 of the City Code, as amended. 23. Phased Development. The Developer and the City agree that the redevelopment of the Subject Property may be developed by multiple parties in multiple phases over the life of the Agreement. 24. Cooperation, Expedited Permitting and Time is of the Essence. The Parties agree to cooperate with each other to the full 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 City shall use its best efforts to expedite the permitting and approval process in an effort to assist Developer in achieving its development and construction milestones. The City will accommodate requests from Developer's general contractor and subcontractors for review of phased or multiple permitting packages, such as those for excavation, site work and foundations, building shell, core, and interiors. In addition, the City will designate an individual within the City Manager's office who will have a primary (though not exclusive) duty to serve as the City's point of contact and liaison with Developer in order to facilitate expediting the processing and issuance of all permit and license applications and approvals across all of the various departments and offices of the City which have the authority or right to review and approve all applications for such permits and licenses. 16 Miami Design District SAP RFD Development Agreement (a) Partial Temporary Certificate of Completion ("TCC") or Temporary Certificate of Occupancy ("TCO"). The City shall issue a Temporary Certificate of Completion or Temporary Certificate of Occupancy to any a unit(s) or premises within a Building which are complete as determined by passing the inspections necessary for a TCC or TCO, so long as the remainder of the Building meets all life safety conditions; or alternatively shall a Partial Temporary Certificate of Completion/Occupancy to that portion of the Building, so long as it meets all life safety conditions. (b) Notwithstanding the foregoing, the City shall not be obligated to issue development permits to the extent a Developer does not comply with the applicable requirements of the Existing Zoning, the Comprehensive Plan, this Agreement and applicable building codes. (c) To the extent allowed per the Florida Building Code, leased tenant spaces may receive individual interior permits separate from any master building permits. The permitting, construction, inspection and TCO or TCC of separately permitted tenant spaces may proceed in parallel and shall be independent from any master building permits. 25. Reservation of Development Rights. (a) For the term of this Agreement, the City hereby agrees that it shall permit the development of the Subject Property in accordance with the Existing Zoning, the Comprehensive Plan, Regulating Plan, Concept Book, and this Agreement. (b) Nothing herein shall prohibit an increase in the density or intensity of development permitted on the Subject Property in a manner consistent with (1) the Existing Zoning and/or the Comprehensive Plan, (2) any zoning change subsequently requested or initiated by the Developer in accordance with applicable provisions of law or (3) any zoning change subsequently enacted by the City. (c) The expiration or termination of this Agreement shall not be considered a waiver of, or limitation upon, the rights, including, but not limited to, any claims of vested rights or equitable estoppel, obtained or held by the Developer or its successors or, assigns to continued development of the Subject Property in conformity with Existing Zoning and all prior and subsequent approved development permits or development orders granted by the City. The City reserves its immunities, defenses and any claims it has as to vested rights or equitable estoppel. 26. Annual Review. (a) The Developer shall provide the City on an annual basis a status of the redevelopment of the Subject Property in order for the City to conduct an annual review of the Development. This requirement shall commence twelve (12) months 17 Miami Design District SAP RFD Development Agreement after the Effective Date and shall continue throughout the term. (b) During its annual review, the City may ask for additional information not provided by the Developer. Any additional information required of the Developer during an annual review shall be limited to that necessary to determine the a xt to which the Developer is proceeding in good faith to comply with the terms of this Agreement. (c) Subject to the applicable terms and provisions of this Agreement, if the City finds on the basis of competent substantial evidence that the Developer intentionally, willfully or negligently failed to substantially comply with the terms, obligations, or conditions of this Agreement, the City may terminate or amend this Agreement after providing thirty (30) days written notice to the Developer unless cured by the Developer prior to the expiration of such thirty(30) day period; provided, however, that if such failure cannot reasonably be cured within thirty (30) days, the Developer shall not be in default if it measurably commences to cure such breach within such thirty (30) day period and diligently pursues the cure to completion. Any termination or modification of this Agreement shall not become effective until the City Commission approves same after holding two (2) duly noticed public hearings. 27. 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 service 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 legal 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 copies to: City Attorney Miami Riverside Center 444 S.W. 2nd Ave., 9th Floor Miami, FL 33130 Department of Planning Miami Riverside Center 18 Miami Design District SAP RFD Development Agreement 444 S.W. 2nd Ave., 3rd Floor Miami, FL 33130 Department of Transportation Miami Riverside Center 444 S.W. 2nd Ave., 9th Floor Miami, FL 33130 To the Developer: RFD North 39, LLC c/o Guillaume Rousson 645 Madison Avenue New York, New York 10065 RFD North 40, LLC c/o Guillaume Rousson 645 Madison Avenue New York, New York 10065 RFD South 40, LLC c/o Guillaume Rousson 645 Madison Avenue New York, New York 10065 With copies to: 1 Greenberg Traurig, P.A. Attn: Iris V. Escarra, Esq. 333 SE 2nd Avenue, Suite 4400 Miami, FL 33131 Any Party to this Agreement may change its notification address(es) by providing written notification to the remaining parties pursuant to the terms and conditions of this section. 28. Enforcement. The City, its successor or assigns, and the Developer shall have the right to enforce the provisions of this 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. The Prevailing Party in any action or suit pertaining to enforcement of this Agreement shall be entitled to recover, in addition to costs and disbursements allowed by law or in equity, reasonable attorneys' fees and costs, as well as attorneys' fees and costs incurred in enforcing this prevailing parties attorneys' fees provision. 29. Modification. In accordance with the Concept Book and development plans, the redevelopment of the Subject Property may be developed in multiple phases. This Agreement may be modified, amended or released as to any phase, or any portion 19 Miami Design District SAP RFD Development Agreement thereof, by a written instrument executed by the, then, owner(s) of such phase provided that the same is also approved by the City Commission at two (2) publicly noticed hearings. Any application related to a particular phase, or any portion thereof, shall only require the consent, acknowledgment and/or joinder of the then owner(s) of such phase. In the event that there is a recorded homeowners, master, condominium and/or other association covering the property, any phase or any portion thereof, said association may (in lieu of the signature or consent of the individual members or owners), on behalf of its members and in accordance with its articles of incorporation and bylaws, consent to any proposed modification, amendment, or release by a written instrument executed by the association. Any consent made pursuant to a vote of an association shall be evidenced by a written resolution of the association and a certification executed by the secretary of the association's board of directors affirming that the vote complied with the articles of incorporation and the bylaws of the association. For purposes of this Agreement, references to "condominium association" or "association" shall mean any condominium or other association or entity, including master association, as applicable, which governs any portion of the Subject Property. 30. Signage. The redevelopment of the Subject Property will need to comply with all applicable Federal, State, County and City signage codes, rules, laws, orders, regulations, statutes, or ordinances. Permitted signage will accomplish the following goals: (i) moving pedestrians and vehicle traffic throughout the Subject Property safely and efficiently; (ii) promoting safe and efficient pedestrian traffic within the property; and (iii) properly identifying the Subject Property. The Signage Program will include, but is not limited to, the following sign types: (i) directional signage; (ii) hanging signage; (iii) wall signage; (iv) monument signage; and (v) projecting signage, some or all of which may incorporate LCD, LED, or similar electronic technology, only if approved, provided for in the land development regulations, and legally authorized. The Signage Program shall apply to signage visible from public rights -of -way. The Signage Program shall not apply to signage internal to the redevelopment of the Subject Property or not otherwise visible from the public right-of-way. 31. Exclusive Venue, Choice of Law, Specific Performance. It is mutually understood and agreed by the parties hereto, that this Agreement shall be governed by the laws 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 provision hereof shall be instituted only in the courts of the State of Florida or federal courts and venue for any such actions shall lie exclusively in a court of competent jurisdiction in Miami -Dade County. In addition to any other legal rights, the City and the Developer shall each have the right to specific performance of this Agreement in court. Each party shall bear its own attorney's fees. 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 Parties irrevocably waive any rights to a jury trial. 20 Miami Design District SAP RFD Development Agreement 32. Severability. Invalidation of any terms or provisions of this Agreement, by judgment of court, in no way shall affect any of the other terms or provisions of this Agreement, which shall remain in full force and effect, provided the fundamental terms and provisions of this Agreement remain legal and enforceable. 33. No Oral Change or Termination. This Agreement and the exhibits and attachments constitute the entire agreement between the Parties with respect to the components of the Miami Design District Retail Street SAP discussed herein. This Agreement supersedes any prior agreements or understandings between the Parties with respect to the subject matter hereof. 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 and after two (2) public hearings before the City Commission. This Agreement cannot be changed or terminated orally. 34. Compliance with Applicable Law. Subject to the terms and conditions of this Agreement, throughout the term of this Agreement, the Developer shall comply with all applicable federal, state, and local laws, rules, regulations, codes, ordinances, resolutions, administrative orders, permits, policies and procedures, and orders that govern or relate to the respective Party's obligations and performance under this Agreement, all as they may be amended from time to time. 35. Voluntary Compliance. The Parties agree that in the event all or any part of this Agreement is struck down by judicial proceedings or preempted by legislative action, the Parties shall continue to honor the terms and conditions of this Agreement to the extent allowed by law. 36. Representations; Representatives. Each Party represents to the other that this Agreement has been duly authorized, delivered, and executed by such Party with the legal authority to do so and therefore this Agreement constitutes the legal, valid, and binding obligation of such party, enforceable in accordance with its terms. 37. No Exclusive Remedies. No remedy or election given by any provision in this 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 at law or equity arising from such event of default (other than any remedy which may be available at law or in equity which permits the termination of this Agreement), except where otherwise expressly provided. 38. Failure to Exercise Rights not a Waiver: Waiver Provisions. The failure by any party to promptly exercise any right arising hereunder shall not constitute a waiver of such right unless otherwise expressly provided herein. No waiver or breach of any provision of this Agreement shall constitute a waiver of any subsequent breach of the same or any other provision hereof, and no waiver shall be effective unless made in writing. 21 Miami Design District SAP RFD Development Agreement 39. Events of Default. (a) The Developer shall be in default under this Agreement if any of the following events occur and continue beyond the applicable grace period: the Developer fails to perform or breaches any term(s), covenant(s), or condition(s) of this Agreement, which breach 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 the 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(s), covenant(s), or condition(s) of this Agreement and such failure is not cured within thirty (30) days after receipt of written notice from the Developer specifying the nature of such breach; provided, however, that if such breach cannot reasonably be cured within thirty (30) days, the City 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. (c) It shall not be a default under this Agreement if either party is declared bankrupt by a court of competent jurisdiction. All rights and obligations in this Agreement shall survive such bankruptcy of any party. The Parties hereby forfeit any right to terminate this Agreement upon the bankruptcy of the other party. (d) Notwithstanding the foregoing or anything contained in this Agreement to the contrary, providing the Miami City Commission has approved an Assignment of this Agreement following a public hearing noticed at the cost of a Developer (i) a default by any successor(s) or assignee(s) of the Developer of any portion of this Agreement shall not be deemed to be a breach by (A) the Developer, or (B) any other successor or assignee of the Developer; and (ii) a default by the Developer under this Agreement shall not be deemed to be a breach by any successor(s) or assignee(s) of the Developer of their respective rights, duties, or obligations under this Agreement. For purposes of clarity, the redevelopment of the Subject Property may be developed by multiple parties in multiple phases over the next several years. Any actual or alleged default by a developer of a portion(s) or phase(s) of the redevelopment of the Subject Property, including, but not limited to, the Developer, shall not cause, nor be treated, deemed, or construed as a default by another developer or Party with respect to any other portion(s), phase(s), or component(s) of the redevelopment of the Subject Property. 40. Remedies Upon Default. (a) Neither party may terminate this Agreement upon the default of the other party, but shall have all of the remedies enumerated herein. Nevertheless, the parties reserve their right to request that a court declare this Agreement rescinded or terminated due to a material breach which has not been cured. 22 Miami Design District SAP RFD Development Agreement (b) Upon the occurrence of a default by a party to this Agreement not cured within the applicable grace period, the Developer and the City agree that any party may seek specific performance of this Agreement, and that seeking specific performance shall not waive any right of such party to also seek monetary damages, injunctive relief, or any other relief other than termination of this Agreement. The City hereby acknowledges that any claim for damages under this Agreement is not limited by sovereign immunity or similar limitation of liability. 41. Assignment or Transfer. This Agreement shall be binding on the Developer and its heirs, successors, and assigns, including the successor to or assignee of any Subject Property Interest. The Developer, at its sole discretion, may assign, in whole or in part, this Agreement including any of its rights and obligations hereunder, or may extend the benefits of this Agreement, to any holder of a Property Interest without the prior written consent or any other approval of the City. The City shall be notified in writing within thirty (30) days after any assignment or transfer. 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. 42. Obligations Surviving Termination Hereof. Notwithstanding and prevailing over any contrary term or provision contained herein, in the event of any lawful termination of this Agreement, the following obligations shall survive such termination and continue in full force and effect until the expiration of a one (1) 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 law provisions contained herein; (ii) rights of any party arising 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 effective beyond the expiration or permitted early termination hereof. 43. Lack of Agency Relationship. Nothing contained herein shall be construed as establishing an agency relationship between the City and the Developer and neither the 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 contractors, agents, and employees shall not be deemed contractors, agents, or employees of the Developer or its subsidiaries, divisions or affiliates. 44. Third -Party Defense. The City and the Developer shall each, at their own cost and expense, vigorously defend any claims, suits or demands brought against them by third parties challenging the Agreement or the redevelopment of the Subject Property, or objecting to any aspect thereof, including, without limitation, (i) a consistency challenge pursuant to Section 163.3215, Florida Statutes (2022), (ii) a petition for writ of certiorari, (iii) an action for declaratory judgment, or (iv) any claims for loss, damage, liability, or expense (including reasonable attorneys' fees). The City and the Developer shall promptly give the other written notice of any such 23 Miami Design District SAP RFD Development Agreement action, including those that are pending or threatened, and all responses, filings, and pleadings with respect thereto. 45. Amendment or Termination by Mutual Consent. This Agreement may not be amended or terminated during its term except by mutual agreement of the Developer and its successors and assigns, and the City in writing. Prior to amending or terminating this Agreement, the City Commission shall hold two (2) duly noticed public hearings 46. No Third -Party Beneficiary. No persons or entities other than the Developer and the City, permitted successors and assigns, shall have any rights whatsoever under this Agreement. 47. Recording. This Agreement shall be recorded in the Public Records of Miami -Dade County, Florida at the Developer's expense and shall inure to the benefit of the City. A copy of the recorded Development Agreement shall be provided to the City Clerk and City Attorney within two (2) weeks of recording. 48. No Conflict of Interest. The Developer agrees to comply with Section 2-612 of the City Code as of the Effective Date, with respect to conflicts of interest and with the State of Florida Ethics Code, and the Miami -Dade County Conflict of Interest and Code of Ethics Ordinance. 49. 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 agreement. 50. Estoppel Certificate. Upon request by any Party to this Agreement, the other Party or its duly authorized representative will deliver to the requesting Party, within thirty (30) days after such request is made, a certificate in writing certifying (a) that this Agreement is unmodified and in full force and effect (or if there have been any modifications, a description of such modifications and confirmation that this Agreement as modified is in full force and effect); (b) that to the best knowledge, information and belief of such Party, the requesting Party is not, at that time, in default under any provision of this Agreement, or, if in default, the nature thereof in detail; (c) to the best knowledge of such Party, whether such Party has a claim against any other Party under this Agreement, and, if so, the nature thereof and the dollar amount of such claim; and (d) such other matters as such requesting Party or its lender may reasonably request. Each Party further agrees that such certificate shall be in a form reasonably acceptable to the City Attorney and may be relied upon by (1) any prospective purchaser of the fee or mortgage or assignee of any mortgage on the fee of the Subject Property or any portion thereof. Should the City fail to execute the requested estoppel certificate within the aforementioned time period, the City's non -response shall be presumed to indicate the Developer Party's compliance with the terms of the Agreement. 24 Miami Design District SAP RFD Development Agreement NOW, WHEREOF, the City and the Developer have caused this Agreement to be duly executed. [Execution Pages for the City and the Developer Follow] 25 Miami Design District SAP RFD Development Agreement Witnesses: RFD North 39, LLC., a Florida limited liability company Print Name: By: Name: Title: Print Name: STATE OF FLORIDA ) )SS COUNTY OF MIAMI-DADE) The foregoing instrument was acknowledged before me , as of RFD North 3 •', company. Personally Known or Produced Identifi Type of Identification Produced 2023, by lorida limited liability NOTARY SIGNATURE Print or Stamp Name: Notary Public, State of Florida Commission No.: N/A My Commission Expires: 26 Miami Design District SAP RFD Development Agreement Witnesses: RFD North 40, LLC., a Florida limited liability company Print Name: Print Name: STATE OF FLORIDA )SS COUNTY OF MIAMI-DADE) By: Name: Title: The foregoing instrument was acknowledged before me this da , as of RFD North 40, LLC company. Personally Known or Produced Identification Type of Identification Produced 2023, by lorida limited liability NOTARY SIGNATURE Print or Stamp Name: Notary Public, State of Florida Commission No.: N/A My Commission Expires: 27 Miami Design District SAP RFD Development Agreement Witnesses: RFD South 40, LLC., a Florida limited liability company Print Name: By: Name: Title: Print Name: STATE OF FLORIDA )SS COUNTY OF MIAMI-DADE) The foregoing instrument was acknowledged before me , as of RFD South 4I, company. Personally Known or Produced Identifi` Type of Identification Produced 2023, by lorida limited liability NOTARY SIGNATURE Print or Stamp Name: Notary Public, State of Florida Commission No.: N/A My Commission Expires: 28 Miami Design District SAP RFD Development Agreement CITY OF MIAMI, FLORIDA By: Arthur Noriega, City Manager ATTEST: By: Todd B. Hannon, City Clerk APPROVED AS TO FORM AND CORRECTNESS: By: Victoria Mendez, City Attorney 29 Miami Design District SAP RFD Development Agreement Exhibit "A" Legal Descriptions of Subject Property 30 Miami Design District SAP RFD Development Agreement Exhibit "B" Legal Descriptions of SAP Area 31 Miami Design District SAP RFD Development Agreement Exhibit "C" Miami Design District Retail Street SAP Regulating Plan 32 Miami Design District SAP RFD Development Agreement EXHIBIT "C" Cont. Concept Book 33