HomeMy WebLinkAboutDevelopment Agreement-SUBDEVELOPMENT AGREEMENT BETWEEN
CITY OF MIAMI, FLORIDA AND MIAMI
WORLDCENTER GROUP, LLC REGARDING
DEVELOPMENT OF THE MIAMI WORLD
CENTER PROJECT
THIS AGREEMENT is entered this day of November, 2008, by and between
MIAMI WORLDCENTER GROUP, LLC., a Florida limited liability company ("MWC") and
its undersigned affiliates (collectively the "Developer Parties"), and the CITY OF MIAMI,
FLORIDA, a municipal corporation and a political subdivision of the State of Florida ("City").
WITNESSETH:
WHEREAS, the City wishes to encourage redevelopment of the property bounded by
NE 2"d Avenue on the east, North Miami Avenue on the west, NE 11t1i Street on the north, and
NE 6t1i Street on the south ("Miami WorldCenter District");
WHEREAS, on November 13, 2008 the City Commission approved the rezoning of the
Miami WorldCenter District from SD-16.1 to SD-16.3;
WHEREAS, Developer Parties hold the fee simple title to certain real property situated
in the Miami WorldCenter District (the "Property" and collectively, as the "Properties"; legal
descriptions of which are attached as Exhibit "A"). The Property only includes land held in fee
simple by the Developer Parties;
WHEREAS, Developer Parties may acquire fee simple title to certain other real property
situated in the Miami WorldCenter District (the "Property Not -Included", legal descriptions of
which are attached as Exhibit "B"). The Property Not -Included is land that is not held in fee
simple by any of the Developer Parties;
WHEREAS, the Developer Parties contemplate constructing within the Miami
WorldCenter District a large, high -density, mixed -use development consisting of multiple
buildings, public open space, enhanced pedestrian areas and access to mass transit, commonly
referred to as the Miami World Center ("Project");
WHEREAS, the Developer Parties contemplate that the Project will have a site plan,
including open spaces and building layout, substantially in accordance with the Conceptual Site
Plan attached as Exhibit "C" ("Conceptual Site Plan");
WHEREAS, the Developer Parties and the City acknowledge that the Conceptual Site
Plan and each of its elements may only be achieved if the Developer Parties own sufficient
property to make each of the open spaces and buildings both physically and financially feasible;
WHEREAS, the 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;
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WHEREAS, assurance to a developer that it 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;
WHEREAS, the Property in the Miami WorldCenter District is designated Restricted
Commercial in the Comprehensive Plan, and zoned as SD-16.3 in the Existing Zoning;
WHEREAS, the Property outside the Miami WorldCenter District are zoned various
other designations according to the Existing Zoning;
WHEREAS, the Developer Parties and the City mutually desire that the Properties be
developed as permitted in the Existing Zoning, the Comprehensive Plan and this Agreement;
WHEREAS, the City Commission pursuant to Resolution No. , adopted
November 13, 2008 has authorized the City Manager to execute this Agreement upon the teiins
and conditions as set forth below, and the Managing Members or Boards of Directors of the
Developer Parties or their parent or controlling entities have authorized the Developer Parties to
execute this Agreement upon the teiliis and conditions set forth below;
WHEREAS, the Project is located in the Southeast Overtown Park West Development of
Regional Impact ("SEOPW DRI") and the Southeast Overtown Park West Community
Redevelopment Area ("CRA");
WHEREAS, as of the Effective Date the SEOPW DRI has insufficient development
capacity to accommodate the Project; and
WHEREAS, to facilitate the Project, the CRA plan and the SEOPW DRI may need to be
amended, subject to any required legal procedures and approvals;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter contained, the parties mutually agree and bind themselves as set forth herein:
Section 1. 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. This covenant shall be binding upon, and inure to,
the benefit of the parties, their successors, assigns, heirs, legal representatives, and personal
representatives.
Section 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;
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(c) A pronoun in one gender includes and applies to other genders as well;
(d) The terms "hereunder", "herein", "hereof, "hereto" and such similar teiiiis 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 any Developer Party 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.
Section 3. Definitions.
"Agreement" means this Agreement between the City and Developer Parties.
"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.
"Comprehensive Plan" means the comprehensive plan adopted by the City pursuant to
Chapter 163, Florida Statutes (2008), meeting the requirements of Section 163.3177, Florida
Statutes (2008), Section 163.3178, Florida Statutes (2008) and Section 163.3221(2), Florida
Statutes (2008), which is in effect as of the Effective Date.
"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 or more parcels and such other activities described in Section 163.3221(4), Florida Statutes
(2008).
"Effective Date" is the latter of the dates of recordation of this instrument or thirty days
after this instrument has been received by the state land planning agency pursuant to Section
163.3239, Florida Statutes (2008).
"Existing Zoning" is (a) the City of Miami Ordinance No 11000, adopted March 8,
1990, and amended through the Effective Date, specifically including the SD 16.3 zoning district
regulations and subject to an escalating Affordable Housing Trust Fund contribution to be
determined at the time of building permit, and (b) the provisions of the Charter and City Code of
Miami ("Code") which regulate development, specifically including Chapters 10, 13, 22, 23, 36,
54, 55 and 62 of the Code as amended through the Effective Date, which together comprise the
effective land development regulations governing development of the Property as of the
Effective Date.
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"Land" means the earth, water, and air, above, below, or on the surface and includes any
improvements or structures customarily regarded as land.
"Laws" means all ordinances, resolutions, regulations, comprehensive plans, land
development regulations, and rules adopted by a local government affecting the development of
land.
"Property Interest" means any interest or rights in real property or appurtenances of the
Properties, including but not limited to, fee simple, leasehold, condominium, transferable
development right or air rights, and licenses, however acquired, including any interests or rights
in real property acquired through foreclosure, deed in lieu of foreclosure or any other realization
of a security interest in real property. Without limiting the foregoing, a Community
Development District and/or a master property owners' association with appropriate authority
relating to one or more of the Properties shall be deemed to hold a Property Interest.
"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.
Section 4. Purpose. The purpose of this Development Agreement is to establish certain
conditions which will result in the Developer Parties providing Open Spaces to the City, and to
freeze, as of the Effective Date, the land development regulations which will govern
development of the Project. This Agreement will provide both parties with additional certainty
during the development process.
S^eti*-4;Section 5. Intent. The Developer Parties and the City intend for this Agreement to be
construed and implemented so as to effectuate the purpose of this Development Agreement and
the purpose and intent of the Florida Local Government Development Agreement Act, Section
163.3220 - 163.3243, Florida Statutes (2008).
Section 6. Applicability. This Agreement applies only to the Properties located in the Miami
WorldCenter District. Additional property may be subsequently incorporated into this agreement
and bound by the rights and obligations established hereunder, only if such additional property is
acquired by a Developer Party and is incorporated pursuant to the joinder provisions of Section
20.
Section 5.Section 7. Tenn and Effective Date. This Agreement shall have a teiin of twenty
(20) 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 upon
execution of a written instrument approved by the Developer Parties and the City Commission or
any other legally required authority. This Agreement shall become effective on the Effective
Date and shall constitute a covenant running with the land
See-tion-6,Section S. Peiunitted Development Uses and Building Intensities.
(a) SD-16.3 Zoning District Designation. The City has designated the area bounded
by NE 2" a Avenue on the east, North Miami Avenue on the west, NE 11t1' Street
on the north, and NE 6th Street on the south as SD-16.3 on the official zoning
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Atlas of the City, pursuant to the applicable procedures in the Existing Zoning.
The SD-16.3 zoning district regulations are attached as Exhibit "D". In approving
the SD 16.3 zoning district designation, the City has determined that the uses,
intensities and densities of development permitted thereunder are consistent with
the Comprehensive Plan and the Existing Zoning.
(b) Density, Intensity, Uses and Building Heights.
(1) As of the Effective Date and pursuant to the Existing Zoning, the density
permitted on the Property is approximately 300 units per acre, and the
intensity permitted on the Property is measured by a base floor area ratio
of approximately 4.32, plus any applicable bonuses provided in the
Existing Zoning.
(2) The non-residential development permitted on the Property includes, but is
not limited to, the following uses: office, hotel, retail, convention space,
academic space and any other uses permitted by the Existing Zoning.
(3) The height for any development on the Properties shall be regulated by the
Existing Zoning and the Comprehensive Plan.
(4) Nothing herein shall prohibit an increase in the density or intensity of
development permitted on the Properties in a manner consistent with (a)
the Existing Zoning and/or the Comprehensive Plan, (b) any zoning
change subsequently requested or initiated by any Developer Party in
accordance with applicable provisions of law or (c) any change to the
zoning district regulations, the zoning atlas or the land development
regulations subsequently enacted by the City.
Section 9. Public Facilities. As of the Effective Date, the Developer Parties are conducting
an extensive analysis of the Public Facilities available to serve the Project. In the event that the
Existing Zoning and/or the Comprehensive Plan require the Developer Parties to provide
additional Public Facilities to accommodate the Project, the Developer Parties will provide such
Public Facilities consistent with the timing requirements of Section 163.3180(2)(a), (b) and (c),
Florida Statutes (2008), or as otherwise required by a DRI development order and Chapter 13 of
the City Code, as amended from time to time, if applicable.
Section 10. Project Approval.
(a) Further Development Review. The Existing Zoning, the Comprehensive Plan and
this Agreement establish the criteria upon which the Properties shall be developed
during the term of this Agreement.
(b) Prohibition on Downzoning.
(1) The Existing Zoning, the Comprehensive Plan and this Agreement shall
govern development of the Properties for the duration of the Agreement.
City's laws and policies adopted after the Effective Date may be applied to
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(c)
the Properties only if the deteiiuinations required by Section 163.3233(2),
Florida Statutes (2008) have been made after 30 days written notice to the
Developer Parties and at a public hearing.
(2) Pursuant to Section 163.3233(3), Florida Statutes (2008), this prohibition
on downzoning supplements, rather than supplants, any rights that may
vest to the Developer Parties under Florida or Federal law. As a result, the
Developer Parties may challenge any subsequently adopted changes based
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 (2008).
Development of Regional Impact.
(1) City acknowledges that the development entitlements remaining in the
SEOPW DRI are not sufficient to accommodate the Project. City further
acknowledges that the development entitlements currently remaining in
the SEOPW DRI are not sufficient to allow build -out of properties within
the boundaries of the SEOPW DRI, as permitted under the Existing
Zoning and the Comprehensive Plan.
(2) Subject to required legalprocesses and approvals, the City and the
Developer Parties shall cooperate, and the City shall expeditiously
consider (a) the application to approve Increment III to the SEOPW DRI
and (b) amendment of the SEOPW DRI to accommodate the Project, as
well as additional development within the boundaries of the SEOPW DRI.
If applicable, the City also agrees (a) to expeditiously consider the
Developer Parties' application for a new Development of Regional Impact
for the Project or (b) to support other applications or legislation that either
(i) increases the allowable thresholds for development so that the Project
is not required to be reviewed under Section 380.06, Florida Statutes
(2008), or (ii) exempts the Project from review under Section 380.06,
Florida Statutes (2008).
(3)
(4) City agrees that any DRI development order which the City adopts after
the Effective Date and which applies to the Properties, will include a
Use/Intensity conversion table to allow for a reasonable level of flexibility
with respect to the mix and intensity of uses in order to respond to
changing market conditions.
(5)
In the event Project is not exempt from DRI review and is developed
pursuant to a DRI development order, Developer Parties agree to pay their
proportionate share of the costs of mitigating the off -site impacts to
regional infrastructure, as determined by the DRI development order or as
required by Chapter 13 of the City Code, as amended from time to time.
Section 11. Reservation or Dedication of Land.
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(a)
Except as otherwise provided in this Agreement and pursuant to applicable
subdivision regulations, the Developer Parties shall not be required to dedicate or
reserve any land within the Properties for municipal purposes.
(b) The Developer Parties agree to create within the Project (1) one public open space
of at least 20,000 square feet, (2) one public open space of at least 14,000 square
feet, (collectively the "Open Spaces") and (3) wide sidewalks designed to
accommodate increased pedestrian activity that will include shopping,
entertainment and outdoor seating, as generally labeled on the Regulating Plan
attached as Exhibit "E".
(c) The Developer Parties will retain ownership of the Open Spaces but hereby agree
to grant the City a non-exclusive easement which will allow public access to the
Open Spaces (the "Open Space Easement"). The Developer Parties and the
City also agree to execute a maintenance, operation and liability agreement (the
"Open Space Agreement") to assign certain responsibilities and obligations
regarding the Open Spaces.
(d) The City and Developer Parties agree to execute and record the Open Space
Easement and the Open Space Agreement prior to the City issuing a building
permit for more than 4 million square feet of development on the Property.
The general location and dimensions of the Open Spaces shall be substantially in
accordance with the Regulating Plan, or as otherwise mutually agreed by the
Developer Parties and the City. The specific location and dimensions of the Open
Spaces will be determined in the Open Space Easement.
Developer Parties retain the exclusive right to design, landscape and program the
Open Spaces. The conceptual design of the Open Spaces will reviewed by the
City and included as part of the Open Space Agreement.
(e)
(f)
Section 12. Job Creation. Developer Parties shall consult with local and state economic
development entities, such as Beacon Council, South Florida Workforce, Enterprise Florida,
Florida International University School of Hospitality & Tourism Management, and Miami -Dade
College in developing a plan for job training and job placement services to city residents seeking
employment opportunities with potential employers which will locate or establish business
within the Project.
tion-9.Section 13. Local Development Permits.
(a) The development of the Properties in accordance with the Existing Zoning is
contemplated by the Developer Parties. The Project may require additional
peiiiiits or approvals from the City, County, State, or Federal government 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
peuniits:
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(1) Class II Special Permit and other site plan approvals (including major use
special permit, if applicable);
(2) Subdivision plat and/or waiver of plat approvals;
(3) Covenant or Unity of Title acceptance or the release of existing unities or
covenants;
(4)
(5)
(6)
(7)
Building permits;
Certificates of use and/or occupancy;
Stormwater Permits;
Development of Regional Impact approval, modification or exemption;
and
(8) Any other official action of the City or other government agency having
the effect of peiniitting development of the Properties,
(b) 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 on one of the Properties shall be vested solely in the City Manager, with
the 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.
Seetion40Section 14. Consistency with Comprehensive Plan, The City finds that
development of the Properties in conformity with the Existing Zoning is consistent with the
Comprehensive Plan.
Section 11.Section 15. Necessity of Complying with Local Regulations Relative to
Development Peiiuits. The Developer Parties and the City agree that the failure of this
Agreement to address a particular permit, condition, fee, term, license, or restriction in effect on
the Effective Date shall not relieve the Developer Parties of the necessity of complying with the
regulation governing said permitting requirements, conditions, fees, teiuis, licenses, or
restrictions as long as compliance with said regulation and requirements does not require any
Developer Party to develop a Property in a manner that is inconsistent with Existing Zoning, the
Comprehensive Plan and/or the Agreement.
Section 12.Section 16. Reservation of Development Rights.
(a) For the teini of this Agreement, the City hereby agrees that it shall permit the
development of the Properties in accordance with the Existing Zoning, the
Comprehensive Plan and the Agreement.
(b) Nothing herein shall prohibit an increase in the density or intensity of
development permitted on the Properties in a manner consistent with (a) the
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(c)
Existing Zoning and/or the Comprehensive Plan, (b) any zoning change
subsequently requested or initiated by any Developer Party in accordance with
applicable provisions of law or (c) any zoning change subsequently enacted by the
City.
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 any Developer Party or its
successors or assigns to continue development of the Property in conformity with
Existing Zoning and all prior and subsequent development peitiiits or
development orders granted by the City.
Section 17. Streetcar. Developer Parties acknowledge that the City is currently planning to
construct a light rail transit system commonly referred to as the streetcar, which may traverse or
abut the Miami WorldCenter District. Developer Parties agree to cooperate with the City so that
any portion of the streetcar route which runs through, or adjacent to, the Miami WorldCenter
District can be accommodated within the dedicated public rights -of -way.
Section 18. Community Development District.
(a) City shall support the creation of a community development district or other
independent special district ("District") to assist in funding and constructing
onsite and offsite infrastructure and to provide services required to support the
Project, and Developer Parties may establish, or cause to be established, such
District.
(b) In the event that the City and County establish a District for the Project, the
District may assume any responsibility of any Developer Party under this
agreement.
Section 19. Annual Review.
(a) The City shall review the development that is subject to this Agreement every 12
months, commencing 12 months after the Effective Date. The City shall begin
the review process by giving notice to the Developer Parties, a minimum of 30
days prior to the anniversary date of the Agreement, of its intention to undertake
the annual review of this Agreement.
(b) Any information required of the Developer Parties 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 teiius of this Agreement. For each
annual review conducted during the years 6 through 10 of this Agreement, the
City shall prepare a written report which will be submitted to the parties to this
Agreement and the State land planning agency.
(c)
If the City finds on the basis of competent substantial evidence that there has been
a failure to comply substantially with the terms of the Agreement, the City may
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terminate or amend this Agreement after providing 30 days written notice to the
Developer Parties and at a public hearing.
Section 20. Notices.
(a) 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 telex, telecopy, telegram, 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
and telecopy numbers 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 perforrued timely when taken on the succeeding day thereafter which shall
not be a Saturday, Sunday or legal holiday.
To the City:
City Manager
City of Miami
3500 Pan American Drive
Miami, FL 33133
With a copy to:
City Attorney
Miami Riverside Center
444 S.W. 2nd Ave., 9th Floor
Miami, FL 33130
To the Developer Parties:
Managing Member
Miami WorldCenter LLC.
700 NE 2nd Avenue
Miami, FL 33132
With copies to:
Berger Singerman
Attn: Sam Poole
200 S Biscayne Blvd, Ste. 1000
Miami, FL 33131
With copies to:
Akerman Senterfitt
Attn: Neisen Kasdin
1 SE 3rd Avenue, 25th Floor
Miami, FL 33131
To the SEOPW CRA as courtesy notice:
Executive Director
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SEOPW CRA
49 NW 5th Street, Suite 100
Miami, Florida 33128
(b) 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.
Section 21. Joinder.
(a) If a Developer Party acquires fee simple title to a Property Not -Included
subsequent to the Effective Date, the Developer Party may incorporate that
property into this Agreement, subjecting it to the rights and obligations
established hereunder, provided that the Developer Party executes the Joinder
Form and Acknowledgement of Joinder attached as Exhibit "F". Once executed,
the Developer Party shall record the executed Joinder Form in the public records
of Miami -Dade County and file same with the City Clerk.
(b) The parties agree that any property which is incorporated into the Agreement
through this Joinder provision shall be subject to the Existing Zoning, the
Comprehensive Plan and the teuus of this Agreement. In the event that the City
does not afford any subsequently incorporated property with the protections of the
Existing Zoning, the Comprehensive Plan and the terms of this Agreement, the
City will be deemed to have breached this Agreement.
Nothing herein shall prohibit the Developer Parties from objecting to any policy
which would not afford a subsequently incorporated property with the protections
of the Existing Zoning, the Comprehensive Plan and the terms of this Agreement.
,n-4 Section 22. 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 the County. In addition to any other legal rights, the City and
the Developer Parties 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.
Section-' 6 Section 23. Voluntary Compliance. The Developer Parties and the City agree
that in the event all or any part of this Agreement is struck down by judicial proceeding or
preempted by legislative action, the Developer Parties and the City shall continue to honor the
terms and conditions of this Agreement to the extent allowed by law.
(c)
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Seetien47Section 24. No Oral Change or Tennination. This Agreement and the exhibits
and appendices appended hereto and incorporated herein by reference, if any, constitute the
entire Agreement between the parties with respect to the subject matter hereof. This Agreement
supersedes any prior agreements or understandings between the parties with respect to the
subject matter hereof, and no change, modification or discharge hereof in whole or in part shall
be effective unless such change, modification or discharge is in writing and signed by the party
against whom enforcement of the change, modification or discharge is sought. This Agreement
cannot be changed or terminated orally.
Seetiou-4-8:Section 25. Compliance with Applicable Law.
(a) Subject to the terms and conditions of this Agreement, throughout the Term of
this Agreement, the Developer Parties and City shall comply with all applicable
federal, state or local laws, rules, regulations, codes, ordinances, resolutions,
administrative orders, permits, policies and procedures and orders that govern or
relate to the respective Parties' obligations and performance under this
Agreement, all as they may be amended from time to time.
Sec-Lion-49:Section 26. Representations; Representatives. Each party represents to the
others that this Agreement has been duly authorized, delivered and executed by such party and
constitutes the legal, valid and binding obligation of such party, enforceable in accordance with
its terms.
Section 20.Section 27. 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, except
where otherwise expressly provided.
Section 21.Section 28. Failure to Exercise Rights not a Waiver: Waiver Provisions. The
failure by either 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.
Saectinn Section 29. Events of Default.
(a)(a) A Developer Party shall be in default under this Agreement if any of the
following events occur and continue beyond the applicable grace period: a
Developer Party fails to perform or breaches any term, covenant, or condition of
this Agreement which is not cured within thirty (30) days after receipt of written
notice from the City specifying the nature of such breach; provided, however, that
if such breach cannot reasonably be cured within thirty (30) days, then a
Developer Party 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)(b) The City shall be in default under this Agreement if the City fails to perform or
breaches any term, covenant, or condition of this Agreement and such failure is
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(c)
not cured within thirty (30) days after receipt of written notice from a Developer
Party 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.
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 either party. The parties hereby forfeit any right
to terminate this Agreement upon the bankruptcy of the other party.
(d) The default of any Developer Party or successor or assignee of any portion of a
Developer Party's rights hereunder shall not be deemed a breach by any other
Developer Party or any other successor or assignee of any portion of the rights of
a Developer Party hereunder or any other successor or assignee.
Mien-3-.Section 30. 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.
(b) Upon the occurrence of a default by a party to this Agreement not cured within
the applicable grace period, the Developer Parties and the City agree that any
party may seek specific perfoitilance of this Agreement, and that seeking specific
performance shall not waive any right of such party to also seek monetary
damages 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. In addition to any
other remedies available to the City hereunder, in the event of default by any
Developer Party or any successor or assignee, the City may withhold any permit
or other approval, but only for the party in breach.
Seetion-34rSection 31. Severability. If any term or provision of this Agreement or the
application thereof to any person or circumstance shall, to any extent, hereafter be determined to
be invalid or unenforceable, the remainder of this Agreement or the application of such tern or
provision to persons or circumstances other than those as to which it is held invalid or
unenforceable shall not be affected thereby and shall continue in full force and effect.
Section--25:Section 32. Assignment and Transfer. This Agreement shall be binding on the
Developer Parties and their heirs, successors and assigns, including the successor to or assignee
of any Property Interest. A Developer Party, at its sole discretion, may assign, in whole or in
part, this Agreement or 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. In addition, additional parties that are affiliates or assignees of the
Developer Parties may be added to this Agreement if the party added holds a Property Interest in
or adjacent to the Miami WorldCenter District and executes a joinder form in the fore attached
as Exhibit "F", and records such joinder faun in the public records of Miami -Dade County. Such
{M2727171;7} 13
party shall be a Developer Party, and such joinder form shall be acknowledged by the City
Manager or his or her designee. Any such assignee or additional party shall assume all
applicable rights and obligations under this Agreement.
tion-.TSecdon 33. 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 teinrination and
continue in full force and effect until the expiration of a one 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.
Seetion-2-Section 34. Lack of Agency Relationship. Nothing contained herein shall be
construed as establishing an agency relationship between the City and any Developer Party and
neither any Developer Party 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 any Developer Party or its subsidiaries, divisions or
affiliates.
Section 28-Section 35. 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 to the
extent reasonably practical the permitting and approval process in an effort to
assist any Developer Party in achieving its demolition, development and
construction milestones. The City will accommodate requests from a Developer
Party's general contractor and subcontractors for review of multiple permitting
packages, such as those for site work and foundations, and 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 the Developer Parties 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
permits and licenses.
(b) Notwithstanding the foregoing, the City shall not be obligated to issue
development permits to the extent a Developer Party does not comply with the
applicable requirements of the Existing Zoning, the Comprehensive Plan, this
Agreement and applicable building codes.
{M2727171;7} 14
Seetien Section 36. Enforcement.
(a) In the event that a Developer Party, its successors and/or assigns fails to act in
accordance with the terms of the Existing Zoning, the City shall seek enforcement
of said violation upon the subject Property.
(b) Enforcement of this Agreement shall be by action against any parties or person
violating, or attempting to violate, any covenants set forth in this Agreement. The
prevailing party in any action or suit pertaining to or arising out of this Agreement
shall be entitled to recover, in addition to costs and disbursements allowed by law,
such sum as the Court may adjudge to be reasonable for the services of this/her/its
attorney.
(c) This enforcement provision shall be in addition to any other remedies available at
law, in equity or both.
Section 37. Amendment or Termination by Mutual Consent. This Agreement may not be
amended or terminated during its term except by mutual agreement of the Developer Parties and
the City. Prior to amending or terminating this Agreement during its term, the City shall hold
two public hearings.
Section 38. Third Party Defense. City and Developer Parties shall, at their own cost and
expense, vigorously defend any claims, suits or demands brought against it by third parties
threatening the Agreement, challenging its enforceability, or objecting to any aspect thereof,
including, without limitation, any claims for loss, damage, liability, or expense (including
reasonable attorneys' fees). City and Developer Parties shall promptly give the other written
notice of any such action, including those that are pending or threatened, and all responses,
filings, and pleadings with respect thereto.
Section 39. No Conflict of Interest. The Developer Parties agree to comply with Section 2-
612 of the City Code as of the Effective Date, with respect to conflicts of interest.
Section 40. No Third -Party Beneficiary. No persons or entities other than the Developer
Parties and the City, their heirs, permitted successors and assigns, and any party that has
executed a copy of the attached Joinder Form, shall have any rights whatsoever under this
Agreement.
Section 41. Counterparts. This Agreement may be executed in three or more counterparts,
each of which shall constitute an original but all of which, when taken together, shall constitute
one and the same agreement.
NOW, WHEREOF, the City and the Developer Parties have caused this Agreement to be
duly executed.
[Signature blocks for City and all Developer Parties]
{M2727171;7 } 15
MIAMI WORLDCENTER GROUP, LLC., a Florida limited liability company
BY:
Name:
Title:
MR 44F LLC, a Florida limited liability company
BY:
Name:
Title:
PARK WEST 3 LLC, a Florida limited liability company
BY:
Name:
Title:
915 N MIAMI LLC, a Florida limited liability company
BY:
Name:
Title:
MIAMI AUCTION PROP LLC, a Florida limited liability company
BY:
Name:
Title:
PARK WEST 5 LLC, a Florida limited liability company
BY:
Name:
Title:
701 N MIAMI LLC, a Florida limited liability company
BY:
{M2727171;7} 16
Name:
Title:
{M2727171;7} 17
46 NE l OTH LLC, a Florida limited liability company
BY:
Name:
Title:
13 PARCELS LLC, a Florida limited liability company
BY:
Name:
Title:
700 NE 1ST LLC, a Florida limited liability company
BY:
Name:
Title:
44 NW 11TH LLC, a Florida limited liability company
BY:
Name:
Title:
100 NE 11TH LLC, a Florida limited liability company
BY:
Name:
Title:
MIAMI 941 PROPERTY LLC, a Florida limited liability company
BY:
Name:
Title:
{M2727171;7 } 18
701 NE 1ST LLC, a Florida limited liability company
BY:
Name:
Title:
950 NE 2ND LLC a Florida limited liability company
BY:
Name:
Title:
717 NE 1ST LLC, a Florida limited liability company
BY:
Name:
Title:
{M2727171;7} 19
Exhibit "A"
Legal Descriptions of the Property
{M2727171;7} 20
Exhibit "B"
Legal Descriptions of the Property Not -Included
{M2727171;7} 21
Exhibit "C"
Conceptual Site Plan
{M2727171;7} 22
Exhibit "D"
SD-16.3 Zoning District Regulations
{M2727171;7} 23
Exhibit "E"
Regulating Plan
{M2727171;7 }
24
Exhibit "F"
ASSIGNEE OR ADDITIONAL PARTY
TO DEVELOPMENT AGREEMENT
JOINDER FORM AND
ACKNOWLEDGEMENT OF JOINDER
This ASSIGNEE OR ADDITIONAL PARTY TO DEVELOPMENT
AGREEMENT JOINDER FORM ("Joinder Fottil") is executed of this day of
, 20 by the undersigned entity.
RECITALS
Whereas the City has entered into a Development Agreement dated
20 and recorded in the public records of Miami -Dade County, Book , Page
("Development Agreement") with certain Developer Parties as defined therein.
Whereas the Development Agreement secures certain benefits and obligations for the
mutual benefit of the City and the Developer Parties, as set forth in the Development Agreement.
Whereas the Development Agreement allows joinder of additional property when a
Developer Party acquires fee simple title to any Property Not -Included within the Miami
WorldCenter District (as those teitus are defined in the Development Agreement).
Whereas the Development Agreement requires that such additional party execute this
joinder form in order to become a party to the Development Agreement.
Whereas the undersigned desires to enjoy the benefits conferred upon the Developer
Parties under the Development Agreement, and in consideration for such benefits agrees to be
bound by the obligations imposed therein upon the Developer Parties.
Whereas the undersigned owns property or a Property Interest in the Miami WorldCenter
District, more particularly described in Exhibit " " attached hereto.
Now therefore, in consideration of the benefits conferred upon any Developer Party by
the aforementioned Development Agreement, and certifying that the above recitals are true and
correct, and incorporating such recitals herein, the undersigned does hereby execute this Joinder
Foim and become a Developer Party to the Development Agreement.
The undersigned shall assume all of the benefits, and be bound, comply with, and
perform all of the obligations, as set forth in the Development Agreement and as applicable to
the property or Property Interest which the undersigned owns. The undersigned shall be
obligated to the City for the benefit of the City, and the City shall have all rights and remedies set
forth in the Development Agreement to enforce the terms of the Development Agreement against
the undersigned, to the extent applicable to the property or Property Interest owned by the
undersigned.
{M2727171;7} 25
The undersigned also hereby represents that it has full power and authority to execute this
Joinder Foim, and certifies to City that none of its owners or officers, nor any immediate family
member of any of such owners or officers, is also a member of any board, commission, or
agency of the City.
[Signature block]
The City hereby acknowledges and consents to the joinder of the above signatory as a
Developer Party to the Development Agreement.
[Signature of City Manager]
{M2727171;7) 26
Third District Court of Appeal Case Docket
Page 1 of 2
Coarts
Opinions
New Query
Florida Third District Court of Appeal Docket
He p
Case Docket
Case Number: 3D07-465
Civil Certiorari Petition from Dade County
CESAR HERNANDEZ-CANTON, ET AL., vs. MIAMI CITY COMMISSION,
ETC., ET AL.,
Lower Tribunal Case(s): 06-291 AP, 03-415
List of Abbreviations,
Printer Friendly View
Date
Docketed
Description
Date Due
Filed By
Notes
02/26/2007
Petition Filed
Michael A. Sastre 0070335
02/26/2007 1
Appendix
Michael A. Sastre 0070335
03/01/2007 •
Appellant to Submit
Correct $$ Filing Fee
(OR141.)
03/11/2007
03/07/20(17
Case Filing Fee
03/13/2007
Notice of Appearance
•
03/15/2007
Order Resp. on all
Petitions except
Prohibi(OR12L)
04/04/2007
04/04/2007
RESPONSE
and appendix
04/06/2007
Notice
Rafael Suarez -Rivas
notice of adoption
04/11/2007
Motion for Extension
of Time
Michael A. Sastre 0070335
04/27/2007
Request for Oral
Argument
AA :Michael A. Sastre 007(1335
04/27/2007
REPLY'
Michael. A. Sastre 0070335
04/30/2007
Ext-granted to reply to
response on pet.
(0C101D)
05/10/2007
Petitioners' motionfor extension of
time :to file a reply •to the response to
the petition for writ of certiorari is
granted, and petitioners' reply to
Kubik, LLC's response filed on April
27, 2007 is accepted by this Court.
PetitionerS' motion for extension of
time to file a reply to the response to
the petition for writ of certiorari is
granted to and including May 10,
2007.
05/16/2007
ORAL ARGUMENT
AA Michael A. Sastre 0070335
http://199.242.69.70/p1s/ds/ds_docket
1/14/2009
Third District Court of Appeal Case Docket
Page 2 of 2
RECEIPT
05/21/2007
Notice of Oral
Argument
Elliot H. Scherker 202304
07/11/2007 .
Notice of
Supplemental
Authority
Michael A. Sastre 0070335 .
, ...._
07/17/2007
Notice of
Supplemental
Authority
Michael A. Sastre 0070335
08/20/2007
Oral Argument Date
Set
3rd DCA
10/1.7/2007
Granted - Authored
Opinion
and remanded.
10/30/2007
Motion For Rehearing
Elliot H. Scherker 202304
10/30/2007
Motion .For Rehearing
EN BANC
Elliot H. Seherker 202304
11/02/2007
Notice
notice of adoption of motion for
rehearing, enbanc
11/14/2007
RESPONSE
01/02/2008
West Publishing
01/02/2008
Rehearing &
Rehearing en bane
denied (0D57A)
01/18/2008
Mandate
List of Abbreviations
Printer Friendly View
http://199.242.69.70/p1s/ds/ds_docket
1/14/2009
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
THIRD DISTRICT
JULY TERM, A.D. 2008
JANUARY 2, 2008
CESAR HERNANDEZ-CANTON,
ET AL.,
Appellant(s)/Petitioner(s),
vs.
MIAMI CITY COMMISSION,
ETC.,. ET AL.,
Appellee(s)/Respondent(s).
CASE NO.: 3D07-465
LOWER
TRIBUNAL NO. 03-415
06-291 AP
Upon consideration, respondents Kubik, LLC and Biscayne
Premier Investments, Inc.'s motion for rehearing is hereby
denied. COPE, RAMIREZ and SALTER, JJ., concur. Respondents
Kubik, LLC and Biscayne Premier Investments, Inc.'s motion for
rehearing en banc is hereby denied.
cc:
Michael A. Sastre
Rafael Suarez -Rivas
Elliot H. Scherker
Hon. Ivan F. Fernandez
Hon. J. Douglas Chumbley
M. Catherine Hite
Hon. Jeffrey Rosinek
la
MANDATE
DISTRICT COURT OF APPEAL OF FLORIDA
THIRD DISTRICT
DCA # 3D07-465
CESAR HERNANDEZ-CANTON,
ET AL.,
vs.
MIAMI CITY COMMISSION,
ETC., ET AL.,
This cause having been brought to this Court by appeal, and after due
consideration the Court having issued its opinion;
YOU ARE HEREBY COMMANDED that such further proceedings be had
in said cause in accordance with the opinion of this Court attached hereto and
incorporated as part of this order, and with the rules of procedure and laws of the State of
Florida.
Case No. 06-291 AP
WITNESS, The Honorable DAVID M. GERSTEN, Chief Judge of said
District Court and seal of said Court at Miami, this day January 18, 2008.
CC W/O OPINION: Michael A. Sastre;'Blliot H. Scherker and Lucia Dougherty and Brigid F. Cech Samole; Jorge L.
Fernandez and Rafael Suarez -Rivas
la
DEVELOPMENT AGREEMENT BETWEEN
CITY OF MIAMI, FLORIDA AND MIAMI
WORLDCENTER GROUP, LLC REGARDING
DEVELOPMENT OF THE MIAMI WORLD
CENTER PROJECT
THIS AGREEMENT is entered this day of November, 2008, by and between
MIAMI WORLDCENTER GROUP, LLC., a Florida limited liability company ("MWC") and
its undersigned affiliates (collectively the "Developer Parties"), and the CITY OF MIAMI,
FLORIDA, a municipal corporation and a political subdivision of the State of Florida ("City").
WITNESSETH:
WHEREAS, the City wishes to encourage redevelopment of the property bounded by
NE 2nd Avenue on the east, North Miami Avenue on the west, NE 11th Street on the north, and
NE 6th Street on the south ("Miami WorldCenter District");
WHEREAS, on November 13, 2008 the City Commission approved the rezoning of the
Miami WorldCenter District from SD-16.1 to SD-16.3;
WHEREAS, Developer Parties hold the fee simple title to certain real property situated
in the Miami WorldCenter District (the "Property" and collectively, as the "Properties"; legal
descriptions of which are attached as Exhibit "A"). The Property only includes land held in fee
simple by the Developer Parties;
WHEREAS, Developer Parties may acquire fee simple title to certain other real property
situated in the Miami WorldCenter District (the "Property Not -Included", legal descriptions of
which are attached as Exhibit "B"). The Property Not -Included is land that is not held in fee
simple by any of the Developer Parties;
WHEREAS, the Developer Parties contemplate constructing within the Miami
WorldCenter District a large, high -density, mixed -use development consisting of multiple
buildings, public open space, enhanced pedestrian areas and access to mass transit, commonly
referred to as the Miami World Center ("Project");
WHEREAS, the Developer Parties contemplate that the Project will have a site plan,
including open spaces and building layout, substantially in accordance with the Conceptual Site
Plan attached as Exhibit "C" ("Conceptual Site Plan");
WHEREAS, the Developer Parties and the City acknowledge that the Conceptual Site
Plan and each of its elements may only be achieved if the Developer Parties own sufficient
property to make each of the open spaces and buildings both physically and financially feasible;
WHEREAS, the 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;
{M2727171;7} 1
WHEREAS, assurance to a developer that it 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;
WHEREAS, the Property in the Miami WorldCenter District is designated Restricted
Commercial in the Comprehensive Plan, and zoned as SD-16.3 in the Existing Zoning;
WHEREAS, the Property outside the Miami WorldCenter District are zoned various
other designations according to the Existing Zoning;
WHEREAS, the Developer Parties and the City mutually desire that the Properties be
developed as permitted in the Existing Zoning, the Comprehensive Plan and this Agreement;
WHEREAS, the City Commission pursuant to Resolution No. , adopted
November 13, 2008 has authorized the City Manager to execute this Agreement upon the teiius
and conditions as set forth below, and the Managing Members or Boards of Directors of the
Developer Parties or their parent or controlling entities have authorized the Developer Parties to
execute this Agreement upon the terms and conditions set forth below;
WHEREAS, the Project is located in the Southeast Overtown Park West Development of
Regional Impact ("SEOPW DRI") and the Southeast Overtown Park West Community
Redevelopment Area ("CRA");
WHEREAS, as of the Effective Date the SEOPW DRI has insufficient development
capacity to accommodate the Project; and
WHEREAS, to facilitate the Project, the CRA plan and the SEOPW DRI may need to be
amended, subject to any required legal procedures and approvals;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter contained, the parties mutually agree and bind themselves as set forth herein:
Section 1. 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. This covenant shall be binding upon, and inure to,
the benefit of the parties, their successors, assigns, heirs, legal representatives, and personal
representatives.
Section 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;
{M2727171;7} 2
(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)
(f)
The Parties hereto agree that this Agreement shall not be more strictly construed
against either the City or any Developer Party as all parties are drafters of this
Agreement; and
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.
Section 3. Definitions.
"Agreement" means this Agreement between the City and Developer Parties.
"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.
"Comprehensive Plan" means the comprehensive plan adopted by the City pursuant to
Chapter 163, Florida Statutes (2008), meeting the requirements of Section 163.3177, Florida
Statutes (2008), Section 163.3178, Florida Statutes (2008) and Section 163.3221(2), Florida
Statutes (2008), which is in effect as of the Effective Date.
"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 or more parcels and such other activities described in Section 163.3221(4), Florida Statutes
(2008).
"Effective Date" is the latter of the dates of recordation of this instrument or thirty days
after this instrument has been received by the state land planning agency pursuant to Section
163.3239, Florida Statutes (2008).
"Existing Zoning" is (a) the City of Miami Ordinance No 11000, adopted March 8,
1990, and amended through the Effective Date, specifically including the SD 16.3 zoning district
regulations and subject to an escalating Affordable Housing Trust Fund contribution to be
determined at the time of building permit, and (b) the provisions of the Charter and City Code of
Miami ("Code") which regulate development, specifically including Chapters 10, 13, 22, 23, 36,
54, 55 and 62 of the Code as amended through the Effective Date, which together comprise the
effective land development regulations governing development of the Property as of the
Effective Date.
{M2727171;7} 3
"Land" means the earth, water, and air, above, below, or on the surface and includes any
improvements or structures customarily regarded as land.
"Laws" means all ordinances, resolutions, regulations, comprehensive plans, land
development regulations, and rules adopted by a local government affecting the development of
land.
"Property Interest" means any interest or rights in real property or appurtenances of the
Properties, including but not limited to, fee simple, leasehold, condominium, transferable
development right or air rights, and licenses, however acquired, including any interests or rights
in real property acquired through foreclosure, deed in lieu of foreclosure or any other realization
of a security interest in real property. Without limiting the foregoing, a Community
Development District and/or a master property owners' association with appropriate authority
relating to one or more of the Properties shall be deemed to hold a Property Interest.
"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.
Section 4. Purpose. The purpose of this Development Agreement is to establish certain
conditions which will result in the Developer Parties providing Open Spaces to the City, and to
freeze, as of the Effective Date, the land development regulations which will govern
development of the Project. This Agreement will provide both parties with additional certainty
during the development process.
Saab .Section 5. Intent. The Developer Parties and the City intend for this Agreement to be
construed and implemented so as to effectuate the purpose of this Development Agreement and
the purpose and intent of the Florida Local Government Development Agreement Act, Section
163.3220 - 163.3243, Florida Statutes (2008).
Section 6. Applicability. This Agreement applies only to the Properties located in the Miami
WorldCenter District. Additional property may be subsequently incorporated into this agreement
and bound by the rights and obligations established hereunder, only if such additional property is
acquired by a Developer Party and is incorporated pursuant to the joinder provisions of Section
20.
Seetkn -5 Section 7. Term and Effective Date. This Agreement shall have a term of twenty
(20) 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 upon
execution of a written instrument approved by the Developer Parties and the City Commission or
any other legally required authority. This Agreement shall become effective on the Effective
Date and shall constitute a covenant running with the land
Seetion-6-Section 8. Permitted Development Uses and Building Intensities.
(a) SD-16.3 Zoning District Designation. The City has designated the area bounded
by NE 2" a Avenue on the east, North Miami Avenue on the west, NE 11th Street
on the north, and NE 6th Street on the south as SD-16.3 on the official zoning
{M2727171;7 } 4
Atlas of the City, pursuant to the applicable procedures in the Existing Zoning.
The SD-16.3 zoning district regulations are attached as Exhibit "D". In approving
the SD 16.3 zoning district designation, the City has determined that the uses,
intensities and densities of development permitted thereunder are consistent with
the Comprehensive Plan and the Existing Zoning.
(b) Density, Intensity, Uses and Building Heights.
(1) As of the Effective Date and pursuant to the Existing Zoning, the density
permitted on the Property is approximately 300 units per acre, and the
intensity permitted on the Property is measured by a base floor area ratio
of approximately 4.32, plus any applicable bonuses provided in the
Existing Zoning.
(2) The non-residential development permitted on the Property includes, but is
not limited to, the following uses: office, hotel, retail, convention space,
academic space and any other uses permitted by the Existing Zoning.
(3)
The height for any development on the Properties shall be regulated by the
Existing Zoning and the Comprehensive Plan.
(4) Nothing herein shall prohibit an increase in the density or intensity of
development permitted on the Properties in a manner consistent with (a)
the Existing Zoning and/or the Comprehensive Plan, (b) any zoning
change subsequently requested or initiated by any Developer Party in
accordance with applicable provisions of law or (c) any change to the
zoning district regulations, the zoning atlas or the land development
regulations subsequently enacted by the City.
Section 9. Public Facilities. As of the Effective Date, the Developer Parties are conducting
an extensive analysis of the Public Facilities available to serve the Project. In the event that the
Existing Zoning and/or the Comprehensive Plan require the Developer Parties to provide
additional Public Facilities to accommodate the Project, the Developer Parties will provide such
Public Facilities consistent with the timing requirements of Section 163.3180(2)(a), (b) and (c),
Florida Statutes (2008), or as otherwise required by a DRI development order and Chapter 13 of
the City Code, as amended from time to time, if applicable.
Section 10. Project Approval.
(a) Further Development Review. The Existing Zoning, the Comprehensive Plan and
this Agreement establish the criteria upon which the Properties shall be developed
during the term of this Agreement.
(b) Prohibition on Downzoning.
(1) The Existing Zoning, the Comprehensive Plan and this Agreement shall
govern development of the Properties for the duration of the Agreement.
City's laws and policies adopted after the Effective Date may be applied to
{M2727171;7} 5
the Properties only if the determinations required by Section 163.3233(2),
Florida Statutes (2008) have been made after 30 days written notice to the
Developer Parties and at a public hearing.
(2) Pursuant to Section 163.3233(3), Florida Statutes (2008), this prohibition
on downzoning supplements, rather than supplants, any rights that may
vest to the Developer Parties under Florida or Federal law. As a result, the
Developer Parties may challenge any subsequently adopted changes based
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 (2008).
(c) Development of Regional Itnpact.
(1) City acknowledges that the development entitlements remaining in the
SEOPW DRI are not sufficient to accommodate the Project. City further
acknowledges that the development entitlements currently remaining in
the SEOPW DRI are not sufficient to allow build -out of properties within
the boundaries of the SEOPW DRI, as permitted under the Existing
Zoning and the Comprehensive Plan.
(2) Subject to required legal processes and approvals, the City and the
Developer Parties shall cooperate, and the City shall expeditiously
consider (a) the application to approve Increment III to the SEOPW DRI
and (b) amendment of the SEOPW DRI to accommodate the Project, as
well as additional development within the boundaries of the SEOPW DRI.
(3)
If applicable, the City also agrees (a) to expeditiously consider the
Developer Parties' application for a new Development of Regional Impact
for the Project or (b) to support other applications or legislation that either
(i) increases the allowable thresholds for development so that the Project
is not required to be reviewed under Section 380.06, Florida Statutes
(2008), or (ii) exempts the Project from review under Section 380.06,
Florida Statutes (2008).
(4) City agrees that any DRI development order which the City adopts after
the Effective Date and which applies to the Properties, will include a
Use/Intensity conversion table to allow for a reasonable level of flexibility
with respect to the mix and intensity of uses in order to respond to
changing market conditions.
(5)
In the event Project is not exempt from DRI review and is developed
pursuant to a DRI development order, Developer Parties agree to pay their
proportionate share of the costs of mitigating the off -site impacts to
regional infrastructure, as determined by the DRI development order or as
required by Chapter 13 of the City Code, as amended from time to time.
Section 11. Reservation or Dedication of Land.
{M2727171;7} 6
(a) Except as otherwise provided in this Agreement and pursuant to applicable
subdivision regulations, the Developer Parties shall not be required to dedicate or
reserve any land within the Properties for municipal purposes,
(b) The Developer Parties agree to create within the Project (1) one public open space
of at least 20,000 square feet, (2) one public open space of at least 14,000 square
feet, (collectively the "Open Spaces") and (3) wide sidewalks designed to
accommodate increased pedestrian activity that will include shopping,
entertainment and outdoor seating, as generally labeled on the Regulating Plan
attached as Exhibit "E".
(c)
The Developer Parties will retain ownership of the Open Spaces but hereby agree
to grant the City a non-exclusive easement which will allow public access to the
Open Spaces (the "Open Space Easement"). The Developer Parties and the
City also agree to execute a maintenance, operation and liability agreement (the
"Open Space Agreement") to assign certain responsibilities and obligations
regarding the Open Spaces.
(d) The City and Developer Parties agree to execute and record the Open Space
Easement and the Open Space Agreement prior to the City issuing a building
permit for more than 4 million square feet of development on the Property.
The general location and dimensions of the Open Spaces shall be substantially in
accordance with the Regulating Plan, or as otherwise mutually agreed by the
Developer Parties and the City. The specific location and dimensions of the Open
Spaces will be determined in the Open Space Easement.
(f) Developer Parties retain the exclusive right to design, landscape and program the
Open Spaces. The conceptual design of the Open Spaces will reviewed by the
City and included as part of the Open Space Agreement.
(e)
Section 12. Job Creation. Developer Parties shall consult with local and state economic
development entities, such as Beacon Council, South Florida Workforce, Enterprise Florida,
Florida International University School of Hospitality & Tourism Management, and Miami -Dade
College in developing a plan for job training and job placement services to city residents seeking
employment opportunities with potential employers which will locate or establish business
within the Project.
Seet-ion-:Section 13. Local Development Permits.
(a) The development of the Properties in accordance with the Existing Zoning is
contemplated by the Developer Parties. The Project may require additional
permits or approvals from the City, County, State, or Federal government 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:
{M2727171;7} 7
(1) Class II Special Permit and other site plan approvals (including major use
special permit, if applicable);
(2) Subdivision plat and/or waiver of plat approvals;
(3) Covenant or Unity of Title acceptance or the release of existing unities or
covenants;
(4)
(5)
(6)
(7)
(8)
Building permits;
Certificates of use and/or occupancy;
Stoiiiiwater Permits;
Development of Regional Impact approval, modification or exemption;
and
Any other official action of the City or other government agency having
the effect of peiiiiitting development of the Properties.
(b) 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 on one of the Properties shall be vested solely in the City Manager, with
the 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.
Section-ItSection14. Consistency with Comprehensive Plan. The City finds that
development of the Properties in conformity with the Existing Zoning is consistent with the
Comprehensive Plan,
Seet-ien4bSection 15. Necessity of Complying with Local Regulations Relative to
Development Permits. The Developer Parties and the City agree that the failure of this
Agreement to address a particular permit, condition, fee, term, license, or restriction in effect on
the Effective Date shall not relieve the Developer Parties of the necessity of complying with the
regulation governing said peiriiitting requirements, conditions, fees, terms, licenses, or
restrictions as long as compliance with said regulation and requirements does not require any
Developer Party to develop a Property in a manner that is inconsistent with Existing Zoning, the
Comprehensive Plan and/or the Agreement.
Section-1- Section 16. Reservation of Development Rights.
(a) For the term of this Agreement, the City hereby agrees that it shall permit the
development of the Properties in accordance with the Existing Zoning, the
Comprehensive Plan and the Agreement.
(b) Nothing herein shall prohibit an increase in the density or intensity of
development permitted on the Properties in a manner consistent with (a) the
{M2727171;7} 8
Existing Zoning and/or the Comprehensive Plan, (b) any zoning change
subsequently requested or initiated by any Developer Party in accordance with
applicable provisions of law or (c) 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 any Developer Party or its
successors or assigns to continue development of the Property in conformity with
Existing Zoning and all prior and subsequent development peiinits or
development orders granted by the City.
Section 17. Streetcar. Developer Parties acknowledge that the City is currently planning to
construct a light rail transit system commonly referred to as the streetcar, which may traverse or
abut the Miami WorldCenter District. Developer Parties agree to cooperate with the City so that
any portion of the streetcar route which runs through, or adjacent to, the Miami WorldCenter
District can be accommodated within the dedicated public rights -of -way.
Section 18. Community Development District.
(a) City shall support the creation of a community development district or other
independent special district ("District") to assist in funding and constructing
onsite and offsite infrastructure and to provide services required to support the
Project, and Developer Parties may establish, or cause to be established, such
District.
(b) In the event that the City and County establish a District for the Project, the
District may assume any responsibility of any Developer Party under this
agreement.
Section 19. Annual Review,
(a) The City shall review the development that is subject to this Agreement every 12
months, commencing 12 months after the Effective Date. The City shall begin
the review process by giving notice to the Developer Parties, a minimum of 30
days prior to the anniversary date of the Agreement, of its intention to undertake
the annual review of this Agreement.
(b) Any infotmation required of the Developer Parties 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. For each
annual review conducted during the years 6 through 10 of this Agreement, the
City shall prepare a written report which will be submitted to the parties to this
Agreement and the State land planning agency.
(c)
If the City finds on the basis of competent substantial evidence that there has been
a failure to comply substantially with the teirns of the Agreement, the City may
{M2727171;7 } 9
terminate or amend this Agreement after providing 30 days written notice to the
Developer Parties and at a public hearing.
Section 20. Notices.
(a) 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 telex, telecopy, telegram, 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
and telecopy numbers 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 a copy to:
City Attorney
Miami Riverside Center
444 S.W. 2nd Ave., 9th Floor
Miami, FL 33130
To the Developer Parties:
Managing Member
Miami WorldCenter LLC.
700 NE 2nd Avenue
Miami, FL 33132
With copies to:
Berger Singerinan
Attn: Sam Poole
200 S Biscayne Blvd, Ste. 1000
Miami, FL 33131
With copies to:
Akerman Senterfitt
Attn: Neisen Kasdin
1 SE 3rd Avenue, 2501 Floor
Miami, FL 33131
To the SEOPW CRA as courtesy notice:
Executive Director
{M2727171;7} 10
SEOPW CRA
49 NW 5th Street, Suite 100
Miami, Florida 33128
(b) 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.
Section 21. Joinder.
(a) If a Developer Party acquires fee simple title to a Property Not -Included
subsequent to the Effective Date, the Developer Party may incorporate that
property into this Agreement, subjecting it to the rights and obligations
established hereunder, provided that the Developer Party executes the Joinder
Form and Acknowledgement of Joinder attached as Exhibit "F". Once executed,
the Developer Party shall record the executed Joinder Form in the public records
of Miami -Dade County and file same with the City Clerk.
(b) The parties agree that any property which is incorporated into the Agreement
through this Joinder provision shall be subject to the Existing Zoning, the
Comprehensive Plan and the teens of this Agreement. In the event that the City
does not afford any subsequently incorporated property with the protections of the
Existing Zoning, the Comprehensive Plan and the terms of this Agreement, the
City will be deemed to have breached this Agreement.
(c) Nothing herein shall prohibit the Developer Parties from objecting to any policy
which would not afford a subsequently incorporated property with the protections
of the Existing Zoning, the Comprehensive Plan and the terms of this Agreement.
S'eet-ienw4€hSeel ion. 22. 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 the County. In addition to any other legal rights, the City and
the Developer Parties 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.
8ee-1ien-1-€-.Section 23. Voluntary Compliance. The Developer Parties and the City agree
that in the event all or any part of this Agreement is struck down by judicial proceeding or
preempted by legislative action, the Developer Parties and the City shall continue to honor the
teitus and conditions of this Agreement to the extent allowed by law.
{M2727171;7} 11
Section 17.-Section 24. No Oral Change or Termination. This Agreement and the exhibits
and appendices appended hereto and incorporated herein by reference, if any, constitute the
entire Agreement between the parties with respect to the subject matter hereof. This Agreement
supersedes any prior agreements or understandings between the parties with respect to the
subject matter hereof, and no change, modification or discharge hereof in whole or in part shall
be effective unless such change, modification or discharge is in writing and signed by the party
against whom enforcement of the change, modification or discharge is sought. This Agreement
cannot be changed or terminated orally.
Section--1&Section 25. Compliance with Applicable Law.
(a) Subject to the teitns and conditions of this Agreement, throughout the Term of
this Agreement, the Developer Parties and City shall comply with all applicable
federal, state or local laws, rules, regulations, codes, ordinances, resolutions,
administrative orders, permits, policies and procedures and orders that govern or
relate to the respective Parties' obligations and performance under this
Agreement, all as they may be amended from time to time.
Seetion-49-.Section 26. Representations; Representatives. Each party represents to the
others that this Agreement has been duly authorized, delivered and executed by such party and
constitutes the legal, valid and binding obligation of such party, enforceable in accordance with
its terms.
S ectIon4Q Section 27. 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, except
where otherwise expressly provided.
Section 21.Section 28. Failure to Exercise Rights not a Waiver: Waiver Provisions. The
failure by either 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.
Se 4ift-2-2Section 29. Events of Default.
fa (a)
A Developer Party shall be in default under this Agreement if any of the
following events occur and continue beyond the applicable grace period: a
Developer Party fails to perfouii or breaches any teen, covenant, or condition of
this Agreement which is not cured within thirty (30) days after receipt of written
notice from the City specifying the nature of such breach; provided, however, that
if such breach cannot reasonably be cured within thirty (30) days, then a
Developer Party 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)(b) The City shall be in default under this Agreement if the City fails to perfoitii or
breaches any term, covenant, or condition of this Agreement and such failure is
{M2727171;7} 12
not cured within thirty (30) days after receipt of written notice from a Developer
Party 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 either party. The parties hereby forfeit any right
to terminate this Agreement upon the bankruptcy of the other party.
(d) The default of any Developer Party or successor or assignee of any portion of a
Developer Party's rights hereunder shall not be deemed a breach by any other
Developer Party or any other successor or assignee of any portion of the rights of
a Developer Party hereunder or any other successor or assignee.
Sreetion-:Section 30. 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.
(b) Upon the occurrence of a default by a party to this Agreement not cured within
the applicable grace period, the Developer Parties 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 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. In addition to any
other remedies available to the City hereunder, in the event of default by any
Developer Party or any successor or assignee, the City may withhold any permit
or other approval, but only for the party in breach.
S--tom. 4-Section 31. Severability. If any term or provision of this Agreement or the
application thereof to any person or circumstance shall, to any extent, hereafter be determined to
be invalid or unenforceable, the remainder of this Agreement or the application of such term or
provision to persons or circumstances other than those as to which it is held invalid or
unenforceable shall not be affected thereby and shall continue in full force and effect.
Sgtiun- :Section 32. Assignment and Transfer. This Agreement shall be binding on the
Developer Parties and their heirs, successors and assigns, including the successor to or assignee
of any Property Interest. A Developer Party, at its sole discretion, may assign, in whole or in
part, this Agreement or 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. In addition, additional parties that are affiliates or assignees of the
Developer Parties may be added to this Agreement if the party added holds a Property Interest in
or adjacent to the Miami WorldCenter District and executes a joinder fouirl in the form attached
as Exhibit "F", and records such joinder form in the public records of Miami -Dade County. Such
{M2727171;7} 13
party shall be a Developer Party, and such joinder form shall be acknowledged by the City
Manager or his or her designee. Any such assignee or additional party shall assume all
applicable rights and obligations under this Agreement.
Seeti 64Section 33. Obligations Surviving Termination Hereof. Notwithstanding and
prevailing over any contrary tenii 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 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 teiiii 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 peiniitted early
termination hereof.
8eetion--24Section 34. Lack of Agency Relationship. Nothing contained herein shall be
construed as establishing an agency relationship between the City and any Developer Party and
neither any Developer Party 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 any Developer Party or its subsidiaries, divisions or
affiliates.
Sectickn Section 35. 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 -Willis 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 to the
extent reasonably practical the permitting and approval process in an effort to
assist any Developer Party in achieving its demolition, development and
construction milestones. The City will accommodate requests from a Developer
Party's general contractor and subcontractors for review of multiple permitting
packages, such as those for site work and foundations, and 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 the Developer Parties in order to
facilitate expediting the processing and issuance of all peiiirit 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
permits and licenses.
(b) Notwithstanding the foregoing, the City shall not be obligated to issue
development permits to the extent a Developer Party does not comply with the
applicable requirements of the Existing Zoning, the Comprehensive Plan, this
Agreement and applicable building codes.
{M2727171;7} 14
Se ion 2:9:Section 36. Enforcement.
(a) In the event that a Developer Party, its successors and/or assigns fails to act in
accordance with the terms of the Existing Zoning, the City shall seek enforcement
of said violation upon the subject Property.
(b) Enforcement of this Agreement shall be by action against any parties or person
violating, or attempting to violate, any covenants set forth in this Agreement. The
prevailing party in any action or suit pertaining to or arising out of this Agreement
shall be entitled to recover, in addition to costs and disbursements allowed by law,
such sum as the Court may adjudge to be reasonable for the services of this/her/its
attorney.
(c)
This enforcement provision shall be in addition to any other remedies available at
law, in equity or both.
Section 37. Amendment or Teiiilination by Mutual Consent. This Agreement may not be
amended or terminated during its term except by mutual agreement of the Developer Parties and
the City. Prior to amending or terminating this Agreement during its term, the City shall hold
two public hearings.
Section 38. Third Party Defense. City and Developer Parties shall, at their own cost and
expense, vigorously defend any claims, suits or demands brought against it by third parties
threatening the Agreement, challenging its enforceability, or objecting to any aspect thereof,
including, without limitation, any claims for loss, damage, liability, or expense (including
reasonable attorneys' fees). City and Developer Parties shall promptly give the other written
notice of any such action, including those that are pending or threatened, and all responses,
filings, and pleadings with respect thereto.
Section 39. No Conflict of Interest. The Developer Parties agree to comply with Section 2-
612 of the City Code as of the Effective Date, with respect to conflicts of interest.
Section 40. No Third -Party Beneficiary. No persons or entities other than the Developer
Parties and the City, their heirs, permitted successors and assigns, and any party that has
executed a copy of the attached Joinder Form, shall have any rights whatsoever under this
Agreement.
Section 41. Counterparts. This Agreement may be executed in three or more counterparts,
each of which shall constitute an original but all of which, when taken together, shall constitute
one and the same agreement.
NOW, WHEREOF, the City and the Developer Parties have caused this Agreement to be
duly executed.
[Signature blocks for City and all Developer Parties]
{M2727171;7} 15
MIAMI WORLDCENTER GROUP, LLC., a Florida limited liability company
BY:
Name:
Title:
MR 44F LLC, a Florida limited liability company
BY:
Name:
Title:
PARK WEST 3 LLC, a Florida limited liability company
BY:
Name:
Title:
915 N MIAMI LLC, a Florida limited liability company
BY:
Name:
Title:
MIAMI AUCTION PROP LLC, a Florida limited liability company
BY:
Name:
Title:
PARK WEST 5 LLC, a Florida limited liability company
BY:
Name:
Title:
701 N MIAMI LLC, a Florida limited liability company
BY:
{M2727171;7 } 16
Name:
Title:
{M2727171;7 } 17
46 NE LOTH LLC, a Florida limited liability company
BY:
Name:
Title:
13 PARCELS LLC, a Florida limited liability company
BY:
Name:
Title:
700 NE 1ST LLC, a Florida limited liability company
BY:
Name:
Title:
44 NW 11TH LLC, a Florida limited liability company
BY:
Name:
Title:
100 NE 11TH LLC, a Florida limited liability company
BY:
Name:
Title:
MIAMI 941 PROPERTY LLC, a Florida limited liability company
BY:
Name:
Title:
{M2727171;7} 18
701 NE 1ST LLC, a Florida limited liability company
BY:
Name:
Title:
950 NE 2ND LLC a Florida limited liability company
BY:
Name:
Title:
717 NE 1ST LLC, a Florida limited liability company
BY:
Name:
Title:
{M2727171;7 } 19
Exhibit "A"
Legal Descriptions of the Property
{M2727171;7} 20
Exhibit "B"
Legal Descriptions of the Property Not -Included
{M2727171;7) 21
Exhibit "C"
Conceptual Site Plan
{M2727171;7} 22
Exhibit "D"
SD-16.3 Zoning District Regulations
{M2727171;7} 23
Exhibit "E"
Regulating Plan
{M2727171;7}
24
Exhibit "F"
ASSIGNEE OR ADDITIONAL PARTY
TO DEVELOPMENT AGREEMENT
JOINDER FORM AND
ACKNOWLEDGEMENT OF JOINDER
This ASSIGNEE OR ADDITIONAL PARTY TO DEVELOPMENT
AGREEMENT JOINDER FORM ("Joinder Form") is executed of this day of
, 20 by the undersigned entity.
RECITALS
Whereas the City has entered into a Development Agreement dated
20 and recorded in the public records of Miami -Dade County, Book , Page
("Development Agreement") with certain Developer Parties as defined therein.
Whereas the Development Agreement secures certain benefits and obligations for the
mutual benefit of the City and the Developer Parties, as set forth in the Development Agreement.
Whereas the Development Agreement allows joinder of additional property when a
Developer Party acquires fee simple title to any Property Not -Included within the Miami
WorldCenter District (as those terms are defined in the Development Agreement).
Whereas the Development Agreement requires that such additional party execute this
joinder form in order to become a party to the Development Agreement.
Whereas the undersigned desires to enjoy the benefits conferred upon the Developer
Parties under the Development Agreement, and in consideration for such benefits agrees to be
bound by the obligations imposed therein upon the Developer Parties.
Whereas the undersigned owns property or a Property Interest in the Miami WorldCenter
District, more particularly described in Exhibit " " attached hereto.
Now therefore, in consideration of the benefits conferred upon any Developer Party by
the aforementioned Development Agreement, and certifying that the above recitals are true and
correct, and incorporating such recitals herein, the undersigned does hereby execute this Joinder
Form and become a Developer Party to the Development Agreement.
The undersigned shall assume all of the benefits, and be bound, comply with, and
perform all of the obligations, as set forth in the Development Agreement and as applicable to
the property or Property Interest which the undersigned owns. The undersigned shall be
obligated to the City for the benefit of the City, and the City shall have all rights and remedies set
forth in the Development Agreement to enforce the terms of the Development Agreement against
the undersigned, to the extent applicable to the property or Property Interest owned by the
undersigned.
{M2727171;7} 25
The undersigned also hereby represents that it has full power and authority to execute this
Joinder Form, and certifies to City that none of its owners or officers, nor any immediate family
member of any of such owners or officers, is also a member of any board, commission, or
agency of the City.
[Signature block]
The City hereby acknowledges and consents to the joinder of the above signatory as a
Developer Party to the Development Agreement.
[Signature of City Manager]
{M2727171;7} 26
DEVELOPMENT AGREEMENT BETWEEN
CITY OF MIAMI, FLORIDA AND MIAMI
WORLDCENTER GROUP, LLC REGARDING
DEVELOPMENT OF THE MIAMI WORLD
CENTER PROJECT
HIS AGREEMENT is entered this day of November, 2008, by and between
MIAMI \. ORLDCENTER GROUP, LLC., a Florida limited liability company ("MWC") and
its undersized affiliates (collectively the "Developer Parties"), and the CITY OF MIAMI,
FLORIDA, a t unicipal corporation and a political subdivision of the State of Florida ("City").
WITNESSETH:
WHEREAS, e City wishes to encourage redevelopment of the property bounded by
NE 2nd Avenue on the st, North Miami Avenue on the west, NE 11t1i Street on the north, and
NE 6th Street on the south "Miami WorldCenter District");
WHEREAS, on Nov='+ ber 13, 2008 the City Commission approved the rezoning of the
Miami WorldCenter District fro 1 SD-16.1 to SD-16.3;
WHEREAS, Developer Par es hold the fee simple title to certain real property situated
in the Miami WorldCenter District (th "Property" and collectively, as the "Properties"; legal
descriptions of which are attached as E ibit "A"). The Property only includes land held in fee
simple by the Developer Parties;
WHEREAS, Developer Parties may acquire fee simple title to certain other real property
situated in the Miami WorldCenter District (the 'Property Not -Included", legal descriptions of
which are attached as Exhibit "B"). The Proper Not -Included is land that is not held in fee
simple by any of the Developer Parties;
WHEREAS, the Developer Parties contem ate constructing within the Miami
WorldCenter District a large, high -density, mixed -use development consisting of multiple
buildings, public open space, enhanced pedestrian areas anaccess to mass transit, commonly
referred to as the Miami World Center ("Project");
WHEREAS, the Developer Parties contemplate that the roject will have a site plan,
including open spaces and building layout, substantially in accordano with the Conceptual Site
Plan attached as Exhibit "C" ("Conceptual Site Plan");
WHEREAS, the Developer Parties and the City acknowledge that he Conceptual Site
Plan and each of its elements may only be achieved if the Developer Part' - s own sufficient
property to make each of the open spaces and buildings both physically and final ially feasible;
WHEREAS, the lack of certainty in the approval of development can resu in a waste
of economic and land resources, discourage sound capital improvement planning and nancing,
escalate the cost of housing and development, and discourage commitment to compr- . ensive
planning;
{M2727171;7} 1
HEREAS, assurance to a developer that it may proceed in accordance with existing
laws and olicies, subject to the conditions of a development agreement, strengthens the public
planning p a cess, encourages sound capital improvement planning and financing, assists in
assuring the are adequate capital facilities for the development, encourages private
participation in • • mprehensive planning, and reduces the economic costs of development;
WHEREA , the Property in the Miami WorldCenter District is designated Restricted
Commercial in the Co ' prehensive Plan, and zoned as SD-16.3 in the Existing Zoning;
WHEREAS, the roperty outside the Miami WorldCenter District are zoned various
other designations accordin to the Existing Zoning;
WHEREAS, the Deve per Parties and the City mutually desire that the Properties be
developed as permitted in the Exi ting Zoning, the Comprehensive Plan and this Agreement;
WHEREAS, the City Co ission pursuant to Resolution No. , adopted
November 13, 2008 has authorized the City Manager to execute this Agreement upon the terms
and conditions as set forth below, and he Managing Members or Boards of Directors of the
Developer Parties or their parent or contra ling entities have authorized the Developer Parties to
execute this Agreement upon the terms and • • nditions set forth below;
WHEREAS, the Project is located in the Southeast Overtown Park West Development of
Regional Impact ("SEOPW DRI") and the outheast Overtown Park West Community
Redevelopment Area ("CRA");
WHEREAS, as of the Effective Date the SEOPW DRI has insufficient development
capacity to accommodate the Project; and
WHEREAS, to facilitate the Project, the CRA plan .nd the SEOPW DRI may need to be
amended, subject to any required legal procedures and appro Is;
NOW, THEREFORE, in consideration of the mu al covenants and agreements
hereinafter contained, the parties mutually agree and bind themsel es as set forth herein:
Section 1. The parties hereby agree that the consideration a ' d obligations recited and
provided for under this Agreement constitute substantial benefits ,o both parties and thus
adequate consideration for this Agreement. This covenant shall be bining upon, and inure to,
the benefit of the parties, their successors, assigns, heirs, legal represe tatives, and personal
representatives.
Section 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 sinular•;
(c) A pronoun in one gender includes and applies to other genders as well;
{M2727171;7}
2
(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)
(f)
The Parties hereto agree that this Agreement shall not be more strictly construed
a_,ainst either the City or any Developer Party as all parties are drafters of this
Ag - ement; and
The re•'tals are true and correct and are incorporated into and made a part of this
Agreeme t. The attached exhibits shall be deemed adopted and incorporated into
the Agree -nt; provided however, that this Agreement shall be deemed to control
in the event a conflict between the attachments and this Agreement.
Section 3. Definitions.
"Agreement" means this reement between the City and Developer Parties.
"City" means the City of Mia i. i, a municipal corporation and a political subdivision of
the State of Florida, and all departments, .genies and instrumentalities subject to the jurisdiction
thereof.
"Comprehensive Plan" means the c prehensive plan adopted by the City pursuant to
Chapter 163, Florida Statutes (2008), meetin the requirements of Section 163.3177, Florida
Statutes (2008), Section 163.3178, Florida Sta tes (2008) and Section 163.3221(2), Florida
Statutes (2008), which is in effect as of the Effecti Date.
"County" means Miami -Dade County, a polite al 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 or more parcels and such other activities described in Section 163.3221(4), Florida Statutes
(2008).
"Effective Date" is the latter of the dates of recordation o this instrument or thirty days
after this instrument has been received by the state land planning agency pursuant to Section
163.3239, Florida Statutes (2008).
"Existing Zoning" is (a) the City of Miami Ordinance No 1 000, adopted March 8,
1990, and amended through the Effective Date, specifically including the D 16.3 zoning district
regulations and subject to an escalating Affordable Housing Trust Fund contribution to be
determined at the time of building permit, and (b) the provisions of the Charter and City Code of
Miami ("Code") which regulate development, specifically including Chapters 0, 13, 22, 23, 36,
54, 55 and 62 of the Code as amended through the Effective Date, which toget er comprise the
effective land development regulations governing development of the Prop y as of the
Effective Date.
"Land" means the earth, water, and air, above, below, or on the surface and inudes any
improvements or structures customarily regarded as land.
{M2727171;7}
3
"Laws" means all ordinances, resolutions, regulations, comprehensive plans, land
development regulations, and rules adopted by a local government affecting the development of
land.
"Property Interest" means any interest or rights in real property or appurtenances of the
Properties, including ut not limited to, fee simple, leasehold, condominium, transferable
development right or air fights, and licenses, however acquired, including any interests or rights
in real property acquired t ough foreclosure, deed in lieu of foreclosure or any other realization
of a security interest in al property. Without limiting the foregoing, a Community
Development District and/or \master property owners' association with appropriate authority
relating to one or more of the Properties shall be deemed to hold a Property Interest.
"Public Facilities" means i' ajor capital improvements, including, but not limited to,
transportation, sanitary sewer, solid waste, drainage, potable water, educational, parks and
recreational, streets, parking and health stems and facilities.
Section 4. Purpose. The purpose of t is Development Agreement is to establish certain
conditions which will result in the Developer ' arties providing Open Spaces to the City, and to
freeze, as of the Effective Date, the landevelopment regulations which will govern
development of the Project. This Agreement wi provide both parties with additional certainty
during the development process.
Section 5. Intent. The Developer Parties and th City intend for this Agreement to be
construed and implemented so as to effectuate the purp s e of this Development Agreement and
the purpose and intent of the Florida Local Government evelopment Agreement Act, Section
163.3220 - 163.3243, Florida Statutes (2008).
Section 6. Applicability. This Agreement applies only to th- Properties located in the Miami
WorldCenter District. Additional property may be subsequently i corporated into this agreement
and bound by the rights and obligations established hereunder, onl if such additional property is
acquired by a Developer Party and is incorporated pursuant to the j s'nder provisions of Section
20.
Section 7. Term and Effective Date. This Agreement shall have a ter i of twenty (20) years
from the Effective Date and shall be recorded in the public records of Mia i-Dade County and
filed with the City Clerk. The term of this Agreement may be extended upon execution of a
written instrument approved by the Developer Parties and the City Commis on or any other
legally required authority. This Agreement shall become effective on the Ef : ctive Date and
shall constitute a covenant running with the land
Section 8. Permitted Development Uses and Building Intensities.
(a) SD-16.3 Zoning District Designation. The City has designated the area : unded
by NE 21th Avenue on the east, North Miami Avenue on the west, NE 1 treet
on the north, and NE 6th Street on the south as SD-16.3 on the official zo ing
Atlas of the City, pursuant to the applicable procedures in the Existing Zoni g.
The SD-16.3 zoning district regulations are attached as Exhibit "D". In approvin
the SD 16.3 zoning district designation, the City has determined that the uses,
{ M2727171;7}
4
(b)
Section 9.
intensities and densities of development permitted thereunder are consistent with
the Comprehensive Plan and the Existing Zoning.
Density, Intensity, Uses and Building Heights.
1) As of the Effective Date and pursuant to the Existing Zoning, the density
permitted on the Property is approximately 300 units per acre, and the
intensity permitted on the Property is measured by a base floor area ratio
of approximately 4.32, plus any applicable bonuses provided in the
isting Zoning.
(2) The gin -residential development permitted on the Property includes, but is
not li 'ted to, the following uses: residential, office, hotel, retail,
convent]. . e space, academic space and any other uses permitted by the
Existing Zo ing.
The height for
Existing Zoning
y development on the Properties shall be regulated by the
d the Comprehensive Plan.
Nothing herein shal .rohibit an increase in the density or intensity of
development permitte . on the Properties in a manner consistent with (a)
the Existing Zoning an or the Comprehensive Plan, (b) any zoning
change subsequently requ ted or initiated by any Developer Party in
accordance with applicable o ovisions of law or (c) any change to the
zoning district regulations, th zoning atlas or the land development
regulations subsequently enacted o the City.
Facilities. As of the Effective Date,
an extensive analysis of the Public Facilities available to ser
Existing Zoning and/or the Comprehensive Plan require th
additional Public Facilities to accommodate the Project, the Dev
Public Facilities consistent with the timing requirements of Sectio
Florida Statutes (2008), or as otherwise required by a DRI developm
the City Code, as amended from time to time, if applicable.
Public
Section 10. Project Approval.
e Developer Parties are conducting
the Project. In the event that the
Developer Parties to provide
oper Parties will provide such
163.3180(2)(a), (b) and (c),
t order and Chapter 13 of
Further Development Review. The Existing Zoning, the Comp -hensive Plan and
this Agreement establish the criteria upon which the Properties s .11 be developed
during the term of this Agreement.
Prohibition on Downzoning.
(1) The Existing Zoning, the Comprehensive Plan and this Agreem- t shall
govern development of the Properties for the duration of the Agre lent.
City's laws and policies adopted after the Effective Date may be appli 4 to
the Properties only if the determinations required by Section 163.3233
{M2727171;7} 5
(c)
Florida Statutes (2008) have been made after 30 days written notice to the
Developer Parties and at a public hearing.
(2) Pursuant to Section 163.3233(3), Florida Statutes (2008), this prohibition
on downzoning supplements, rather than supplants, any rights that may
vest to the Developer Parties under Florida or Federal law. As a result, the
Developer Parties may challenge any subsequently adopted changes based
on (a) common law principles including, but not limited to, equitable
stoppel and vested rights, or (b) statutory rights which may accrue by
v tue of Chapter 70, Florida Statutes (2008).
Develo •men of Re • Tonal Im • act.
(1) City ac owledges that the development entitlements remaining in the
SEOPW D'' I are not sufficient to accommodate the Project. City further
acknowledge that the development entitlements currently remaining in
the •SEOPW D are not sufficient to allow build -out of properties within
the boundaries • the SEOPW DRI, as permitted under the Existing
Zoning and the Co •rehensive Plan.
(2) Subject to required 1- al processes and approvals, the City and the
Developer Parties shall cooperate, and the City shall expeditiously
consider (a) the application to approve Increment III to the SEOPW DRI
and (b) amendment of the S OPW DRI to accommodate the Project, as
well as additional development ithin the boundaries of the SEOPW DRI.
(3)
If applicable, the City also agrees (a) to expeditiously consider the
Developer Parties' application for a new Development of Regional Impact
for the Project or (b) to support other a•.lications or legislation that either
(i) increases the allowable thresholds for • evelopment so that the Project
is not required to be reviewed under Section 380.06, Florida Statutes
(2008), or (ii) exempts the Project from re iew under Section 380.06,
Florida Statutes (2008).
(4) City agrees that any DRI development order whi the City adopts after
the Effective Date and which applies to the Prop rties, will include a
Use/Intensity conversion table to allow for a reasonab level of flexibility
with respect to the mix and intensity of uses in orer to respond to
changing market conditions.
(5)
In the event Project is not exempt from DRI review and 's developed
pursuant to a DRI development order, Developer Parties agree o pay their
proportionate share of the costs of mitigating the off -site i pacts to
regional infrastructure, as determined by the DRI development orer or as
required by Chapter 13 of the City Code, as amended from time to ti, e.
Section 11. Reservation or Dedication of Land.
{ M2727171;7}
6
(a) xcept as otherwise provided in this Agreement and pursuant to applicable
subdivision regulations, the Developer Parties shall not be required to dedicate or
res ve any land within the Properties for municipal purposes.
(b) The D- eloper Parties agree to create within the Project (1) one public open space
of at leas . 20,000 square feet, (2) one public open space of at least 14,000 square
feet, (colle tively the "Open Spaces") and (3) wide sidewalks designed to
accommodat- increased pedestrian activity that will include shopping,
entertainment . d outdoor seating, as generally labeled on the Regulating Plan
attached as Exhib t "E".
(c) The Developer Part-'. will retain ownership of the Open Spaces but hereby agree
to grant the City a non exclusive easement which will allow public access to the
Open Spaces (the "Op Space Easement"). The Developer Parties and the
City also agree to execute a maintenance, operation and liability agreement (the
"Open Space Agreement' to assign certain responsibilities and obligations
regarding the Open Spaces.
(d) The City and Developer Parties . gree to execute and record the Open Space
Easement and the Open Space A eement prior to the City issuing a building
permit for more than 4 million square eet of development on the Property.
(e) The general location and dimensions of . e Open Spaces shall be substantially in
accordance with the Regulating Plan, o as otherwise mutually agreed by the
Developer Parties and the City. The specifiL location and dimensions of the Open
Spaces will be determined in the Open Space . asement.
(f) Developer Parties retain the exclusive right to d ign, landscape and program the
Open Spaces. The conceptual design of the Op Spaces will reviewed by the
City and included as part of the Open Space Agree nt.
Section 12. Job Creation. Developer Parties shall consult with ocal and state economic
development entities, such as Beacon Council, South Florida Work rce, Enterprise Florida,
Florida International University School of Hospitality & Tourism Manag ent, and Miami -Dade
College in developing a plan for job training and job placement services to ity residents seeking
employment opportunities with potential employers which will locate o establish business
within the Project.
Section 13. Local Development Permits.
(a) The development of the Properties in accordance with the Existin,, Zoning is
contemplated by the Developer Parties. The Project may require additional
permits or approvals from the City, County, State, or Federal governmen, and any
division thereof. Subject to required legal process and approvals, the Cr shall
make a good faith effort to take all reasonable steps to cooperate wit and
facilitate all such approvals. Such approvals include, without limitation, the
following approvals and permits and any successor or analogous approvals 1d
permits:
{M2727171;7}
7
(1) Class II Special Permit and other site plan approvals (including major use
special permit, if applicable);
(2) Subdivision plat and/or waiver of plat approvals;
(3) ovenant or Unity of Title acceptance or the release of existing unities or
c enants;
(4) Build g permits;
(5) Certificate.. of use and/or occupancy;
(6) Stormwater ''-rmits;
(7) Development o egional Impact approval, modification or exemption;
and
(8)
Any other official acti n of the City or other government agency having
the effect of permitting - velopment of the Properties.
(b) In the event that the City substanti:, ly modifies its land development regulations
regarding site plan approval procedu es, authority to approve any site plan for a
project on one of the Properties shall - vested solely in the City Manager, with
the recommendation of the Planning l irector. Any such site plan shall be
approved if it meets the requirements an criteria of the Existing Zoning, the
Comprehensive Plan and the terms of this A. cement.
Section 14. Consistency with Comprehensive Plan. The '.ty finds that development of the
Properties in conformity with the Existing Zoning is consistent 'th the Comprehensive Plan.
Section 15. Necessit of Com.1 in • with Local Re ulations Relative to Development
Permits. The Developer Parties and the City agree that the failure of t'i is Agreement to address a
particular permit, condition, fee, term, license, or restriction in effect o the Effective Date shall
not relieve the Developer Parties of the necessity of complying with th- regulation governing
said permitting requirements, conditions, fees, terms, licenses, or re ictions as long as
compliance with said regulation and requirements does not require any eveloper Party to
develop a Property in a manner that is inconsistent with Existing Zoning, t Comprehensive
Plan and/or the Agreement.
Section 16. Reservation of Development Rights.
(a) For the term of this Agreement, the City hereby agrees that it shall ermit the
development of the Properties in accordance with the Existing Zon'. g, the
Comprehensive Plan and the Agreement.
(b) Nothing herein shall prohibit an increase in the density or intensity of
development permitted on the Properties in a manner consistent with (a) t :e
Existing Zoning and/or the Comprehensive Plan, (b) any zoning change
{M2727171;7}
8
(c)
subsequently requested or initiated by any Developer Party in accordance with
applicable provisions of law or (c) any zoning change subsequently enacted by the
City.
he expiration or termination of this Agreement shall not be considered a waiver
o ', or limitation upon, the rights, including, but not limited to, any claims of
vested rights or equitable estoppel, obtained or held by any Developer Party or its
succe ors or assigns to continue development of the Property in conformity with
Existing Zoning and all prior and subsequent development permits or
developm- t orders granted by the City.
Section 17. Streetcar. De eloper Parties acknowledge that the City is currently planning to
construct a light rail transit sys -m commonly referred to as the streetcar, which may traverse or
abut the Miami WorldCenter Dis ict. Developer Parties agree to cooperate with the City so that
any portion of the streetcar route hich runs through, or adjacent to, the Miami WorldCenter
District can be accommodated within he dedicated public rights -of -way.
Section 18. Communit Develo ement 'strict.
(a) City shall support the creati o n of a community development district or other
independent special district (' istrict") to assist in funding and constructing
onsite and offsite infrastructure . d to provide services required to support the
Project, and Developer Parties ma establish, or cause to be established, such
District.
(b) In the event that the City and County `-stablish a District for the Project, the
District may assume any responsibility of any Developer Party under this
agreement.
Section 19. Annual Review.
(a) The City shall review the development that is subj act to this Agreement every 12
months, commencing 12 months after the Effective 1 ate. The City shall begin
the review process by giving notice to the Develope Parties, a minimum of 30
days prior to the anniversary date of the Agreement, o ts intention to undertake
the annual review of this Agreement.
(b) Any information required of the Developer Parties during at annual review shall
be limited to that necessary to determine the extent to whic the Developer is
proceeding in good faith to comply with the terms of this Agreement. For each
annual review conducted during the years 6 through 10 of this greement, the
City shall prepare a written report which will be submitted to the . arties to this
Agreement and the State land planning agency.
(c)
If the City finds on the basis of competent substantial evidence that there as been
a failure to comply substantially with the terms of the Agreement, the ty may
terminate or amend this Agreement after providing 30 days written notice o the
Developer Parties and at a public hearing.
{M2727171;7} 9
ction 20. Notices.
(a)
{M2727171;7}
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 telex, telecopy, telegram, United States
Registered or Certified Mail, return receipt requested, postage prepaid, or by
vernight express delivery, such as Federal Express, to the parties at the addresses
a • telecopy numbers listed below. Any notice given pursuant to this Agreement
sha . be deemed given when received. Any actions required to be taken hereunder
whic fall on Saturday, Sunday, or United States legal holidays shall be deemed
to be p. formed timely when taken on the succeeding day thereafter which shall
not be a turday, Sunday or legal holiday.
To th- City:
City Ma i ager
City of mi
3500 Pan A erican Drive
Miami, FL 33', 33
With a copy to:
City Attorney
Miami Riverside Cen`-r
444 S.W. 2nd Ave., 9th loor
Miami, FL 33130
To the Developer Parties:
Managing Member
Miami WorldCenter LLC.
700 NE 2nd Avenue
Miami, FL 33132
With copies to:
Berger Singerman
Attn: Sam Poole
200 S Biscayne Blvd, Ste. 1000
Miami, FL 33131
With copies to:
Akerman Senterfitt
Attn: Neisen Kasdin
1 SE 3rd Avenue, 25th Floor
Miami, FL 33131
To the SEOPW CRA as courtesy notice:
Executive Director
SEOPW CRA
49 NW 5th Street, Suite 100
Miami, Florida 33128
10
(b) 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.
Section 21. Joinder.
(a) If Developer Party acquires fee simple title to a Property Not -Included
subsequent to the Effective Date, the Developer Party may incorporate that
proper into this Agreement, subjecting it to the rights and obligations
establish`: d hereunder, provided that the Developer Party executes the Joinder
Form and cknowledgeinent of Joinder attached as Exhibit "F". Once executed,
the Develop Party shall record the executed Joinder Form in the public records
of Miami -Dade County and file same with the City Clerk.
(b) The parties agree hat any property which is incorporated into the Agreement
through this Joinde provision shall be subject to the Existing Zoning, the
Comprehensive Plan a ; d the terms of this Agreement. In the event that the City
does not afford any subs uently incorporated property with the protections of the
Existing Zoning, the Comrehensive Plan and the terms of this Agreement, the
City will be deemed to have e eached this Agreement.
Nothing herein shall prohibit the Developer Parties from objecting to any policy
which would not afford a subsequ tly incorporated property with the protections
of the Existing Zoning, the Compreh nsive Plan and the terms of this Agreement.
Section 22. Exclusive Venue, Choice of Law, , ecific Performance. It is mutually
understood and agreed by the parties hereto, that this A keement shall be governed by the laws
of the State of Florida, and any applicable federal law, bot as to interpretation and performance,
and that any action at law, suit in equity or judicial proce \ dings for the enforcement of this
Agreement or any provision hereof shall be instituted only in t e courts of the State of Florida or
federal courts and venue for any such actions shall lie exclu 'vely in a court of competent
jurisdiction in the County. In addition to any other legal right the City and the Developer
Parties shall each have the right to specific performance of this Agr ement in court. Each party
shall bear its own attorney's fees. Each party waives any defense, whe er asserted by motion or
pleading, that the aforementioned courts are an improper or inconvenie venue. Moreover, the
parties consent to the personal jurisdiction of the aforementioned courts d irrevocably waive
any objections to said jurisdiction. The parties irrevocably waive any rights a jury trial.
Section 23. Voluntary Compliance. The Developer Parties and the City ree that in the
event all or any part of this Agreement is struck down by judicial proceeding o .reempted by
legislative action, the Developer Parties and the City shall continue to honor t e terms and
conditions of this Agreement to the extent allowed by law.
Section 24. No Oral Change or Termination. This Agreement and the exhi •'ts and
appendices appended hereto and incorporated herein by reference, if any, constitute the -ntire
Agreement between the parties with respect to the subject matter hereof. This Agree sent
supersedes any prior agreements or understandings between the parties with respect to Ie
subject matter hereof, and no change, modification or discharge hereof in whole or in part shah,
(c)
{M2727171;7}
11
be effective\ nless such change, modification or discharge is in writing and signed by the party
against whom -nforcement of the change, modification or discharge is sought. This Agreement
cannot be changod or terminated orally.
Section 25. Com•liance with Applicable Law.
(a) Subject ,• the terms and conditions of this Agreement, throughout the Term of
this Agree ent, the Developer Parties and City shall comply with all applicable
federal, step\ or local laws, rules, regulations, codes, ordinances, resolutions,
administrative orders, permits, policies and procedures and orders that govern or
relate to the .espective Parties' obligations and performance under this
Agreement, all asp, ey may be amended from time to time.
Section 26. Representations; Re esentatives. Each party represents to the others that this
Agreement has been duly authorized, • elivered and executed by such party and constitutes the
legal, valid and binding obligation of su party, enforceable in accordance with its terms.
Section 27. No Exclusive Remedies. '• remedy or election given by any provision in this
Agreement shall be deemed exclusive unle expressly so indicated. Wherever possible, the
remedies granted hereunder upon a default of t e other party shall be cumulative and in addition
to all other remedies at law or equity arising fro such such event of default, except where otherwise
expressly provided.
Section 28. Failure to Exercise Rights not a Waive Waiver Provisions. The failure by either
party to promptly exercise any right arising hereunder shall not constitute a waiver of such right
unless otherwise expressly provided herein. No waiv or breach of any provision of this
Agreement shall constitute a waiver of any subsequent breah of the same or any other provision
hereof, and no waiver shall be effective unless made in writin
Section 29. Events of Default.
(a) A Developer Party shall be in default under thi . Agreement if any of the
following events occur and continue beyond the a •licable grace period: a
Developer Party fails to perform or breaches any term, venant, or condition of
this Agreement which is not cured within thirty (30) days fter receipt of written
notice from the City specifying the nature of such breach; pr vided, however, that
if such breach cannot reasonably be cured within thirty 30) days, then a
Developer Party shall not be in default if it commences to cure ch 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 perform or
breaches any term, covenant, or condition of this Agreement and su failure is
not cured within thirty (30) days after receipt of written notice from a eveloper
Party specifying the nature of such breach; provided, however, that if suc ` breach
cannot reasonably be cured within thirty (30) days, the City shall not be in • -fault
if it commences to cure such breach within said thirty (30) day period and
diligently prosecutes such cure to completion.
{M2727171;7)
12
(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 either party. The parties hereby forfeit any right
to terminate this Agreement upon the bankruptcy of the other party.
(d) T ` - default of any Developer Party or successor or assignee of any portion of a
Dev oper Party's rights hereunder shall not be deemed a breach by any other
Devel . . er Party or any other successor or assignee of any portion of the rights of
a Develo er Party hereunder or any other successor or assignee.
Section 30. Remedies U en Default.
(a) Neither party m:\ terminate this Agreement upon the default of the other party,
but shall have all o \the remedies enumerated herein.
(b) Upon the occurrence r a default by a party to this Agreement not cured within
the applicable grace pe'.od, the Developer Parties and the City agree that any
party may seek specific pe ormance of this Agreement, and that seeking specific
performance shall not wai - any right of such party to also seek monetary
damages or any other relief o er than termination of this Agreement. The City
hereby acknowledges that any aim for damages under this Agreement is not
limited by sovereign immunity or ''inilar limitation of liability. In addition to any
other remedies available to the Cit hereunder, in the event of default by any
Developer Party or any successor or signee, the City may withhold any permit
or other approval, but only for the party breach.
Section 31. Severability. If any term or provision of thi Agreement or the application thereof
to any person or circumstance shall, to any extent, herea er be determined to be invalid or
unenforceable, the remainder of this Agreement or the application of such term or provision to
persons or circumstances other than those as to which it is held i valid or unenforceable shall not
be affected thereby and shall continue in full force and effect.
Section 32. Assignment and Transfer. This Agreement shall beinding on the Developer
Parties and their heirs, successors and assigns, including the successor to or assignee of any
Property Interest. A Developer Party, at its sole discretion, may assign, whole or in part, this
Agreement or any of its rights and obligations hereunder, or may extenthe benefits of this
Agreement, to any holder of a Property Interest without the prior written c nsent or any other
approval of the City. In addition, additional parties that are affiliates or assignees of the
Developer Parties may be added to this Agreement if the party added holds a Pr b •erty Interest in
or adjacent to the Miami WorldCenter District and executes a joinder form in the form attached
as Exhibit "F", and records such joinder form in the public records of Miami -Dade ounty. Such
party shall be a Developer Party, and such joinder form shall be acknowledged the City
Manager or his or her designee. Any such assignee or additional party shall aume all
applicable rights and obligations under this Agreement.
Section 33. Obligations Surviving Termination Hereof. Notwithstanding and prevailing sver
any contrary term or provision contained herein, in the event of any lawful termination of t' is
Agreement, the following obligations shall survive such termination and continue in full forc
{M2727171;7}
13
and effect until the expiration of a one year term following the earlier of the effective date of
such ermination or the expiration of the Term: (i) the exclusive venue and choice of law
provisio , s contained herein; (ii) rights of any party arising during or attributable to the period
prior to ex ration or earlier termination of this Agreement, and (iii) any other term or provision
herein whit\ xpressly indicates either that it survives the termination or expiration hereof or is
or may be appli able or effective beyond the expiration or permitted early termination hereof.
Section 34. Lacks f A enc Relationshi . Nothing contained herein shall be construed as
establishing an agent relationship between the City and any Developer Party and neither any
Developer Party nor its e , ployees, agents, contractors, subsidiaries, divisions, affiliates or guests
shall be deemed agents, in umentalities, employees, or contractors of the City for any purpose
hereunder, and the City, its c tractors, agents, and employees shall not be deemed contractors,
agents, or employees of any De eloper Party or its subsidiaries, divisions or affiliates.
Section 35. Cooperation; Expedit-d Permitting and Time is of the Essence.
(a)
The parties agree to co
pursuant to the terms and
time is of the essence in all a
pursuant to this Agreement.
extent reasonably practical the
assist any Developer Party in
construction milestones. The City
Party's general contractor and subcon
packages, such as those for site work a
and interiors. In addition, the City will d
Manager's office who will have a primary (th
the City's point of contact and liaison with
facilitate expediting the processing and issua
applications and approvals across all of the various
City which have the authority or right to review an
permits and licenses.
erate with each other to the full extent practicable
onditions of this Agreement. The parties agree that
ects of their respective and mutual responsibilities
e City shall use its best efforts to expedite to the
rmitting and approval process in an effort to
achieving its demolition, development and
1 accommodate requests from a Developer
actors for review of multiple permitting
foundations, and building shell, core
ignate an individual within the City
ugh not exclusive) duty to serve as
e Developer Parties in order to
ce of all permit and license
epartments and offices of the
approve all applications for
(b) Notwithstanding the foregoing, the City shall not b obligated to issue
development permits to the extent a Developer Party does of comply with the
applicable requirements of the Existing Zoning, the Compr hensive Plan, this
Agreement and applicable building codes.
Section 36. Enforcement.
In the event that a Developer Party, its successors and/or assigns fail
accordance with the terms of the Existing Zoning, the City shall seek en
of said violation upon the subject Property.
to act in
rcement
Enforcement of this Agreement shall be by action against any parties or pe on
violating, or attempting to violate, any covenants set forth in this Agreement. e
prevailing party in any action or suit pertaining to or arising out of this Agreemen
shall be entitled to recover, in addition to costs and disbursements allowed by law,
{M2727171;7}
14
s ' h sum as the Court may adjudge to be reasonable for the services of this/her/its
atto ey.
(c) This en'®rcement provision shall be in addition to any other remedies available at
law, in eq ' ty or both.
Section 37. Amendment i , Termination b Mutual Consent. This Agreement may not be
amended or terminated during term except by mutual agreement of the Developer Parties and
the City. Prior to amending or rminating this Agreement during its term, the City shall hold
two public hearings.
Section 38. Third Party Defense. City and Developer Parties shall, at their own cost and
expense, vigorously defend any claim., suits or demands brought against it by third parties
threatening the Agreement, challenging ts enforceability, or objecting to any aspect thereof,
including, without limitation, any claim . for loss, damage, liability, or expense (including
reasonable attorneys' fees). City and Deve oper Parties shall promptly give the other written
notice of any such action, including those t at are pending or threatened, and all responses,
filings, and pleadings with respect thereto.
Section 39. No Conflict of Interest. The Deve per Parties agree to comply with Section 2-
612 of the City Code as of the Effective Date, with r pect to conflicts of interest.
Section 40. No Third -Party Beneficiary. No perso s or entities other than the Developer
Parties and the City, their heirs, permitted successors and assigns, and any party that has
executed a copy of the attached Joinder Form, shall ha e any rights whatsoever under this
Agreement.
Section 41. Counterparts. This Agreement may be execut: • in three or more counterparts,
each of which shall constitute an original but all of which, whei taken together, shall constitute
one and the same agreement.
NOW, WHEREOF, the City and the Developer Parties have •.used this Agreement to be
duly executed.
[Signature blocks for City and all Developer Partie
{M2727171;7}
15
MIAM WORLDCENTER GROUP, LLC., a Florida limited liability company
BY:
Na e:
Title:
MR 44F LLC, a Florida ited liability company
BY:
Name:
Title:
PARK WEST 3 LLC, a Florida limited 'I ability company
BY:
Name:
Title:
915 N MIAMI LLC, a Florida limited liability compa
BY:
Name:
Title:
MIAMI AUCTION PROP LLC, a Florida limited liability compa
BY:
Name:
Title:
PARK WEST 5 LLC, a Florida limited liability company
BY:
Name:
Title:
{M2727171;7}
16
701 N MIA I LLC, a Florida limited liability company
BY:
Name.
Title:
46 NE 10TH LLC, a Flori
BY:
Name:
Title:
limited liability company
13 PARCELS LLC, a Florida limited lia
BY:
Name:
Title:
ility company
700 NE 1ST LLC, a Florida limited liability compan
BY:
Name:
Title:
44 NW 11TH LLC, a Florida limited liability company
BY:
Name:
Title:
100 NE 11TH LLC, a Florida limited liability company
BY:
Name:
Title:
{M2727171;7}
17
MIAMI ' 41 PROPERTY LLC, a Florida limited liability company
BY:
Na
Title:
701 NE 1ST LLC, a Florida imited liability company
BY:
Name:
Title:
950 NE 2ND LLC a Florida limited liabilit company
BY:
Name:
Title:
717 NE 1ST LLC, a Florida limited liability company
BY:
Name:
Title:
{M2727171;7}
18
ATTE ED TO: CITY OF MIAMI, a municipal
corporation of the State of Florida
PRISCILLA A. T AMPSON
CITY CLERK
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
Sworn to and subscribed before me is
20 , by Pedro G. Hernandez, as City Man ; • er
of the State of Florida. He is personally known o
as ide
APPROVED AS TO LEGAL
FORM AND CORRECTNESS:
JULIE O. BRU
CITY ATTORNEY
{ M2727171;7 } 19
PEDRO G. HERNANDEZ
CITY MANAGER
day of
of the City of Miami, a municipal corporation
me or has produced
ification.
Nota Public, State of Florida
Print o stamp name:
Commis on No.:
My Co ssion Expires:
Legal Descripti ns of the Property
{M2727171;7}
20
Ex •bit "B"
Legal Descriptions of the 'roperty Not -Included
{M2727171;7)
21
Exhibit "C"
Conce u,tual Site Plan
{M2727171;7)
22
E ibit "D"
SD-16.3 Zoning 1" trict Regulations
{ M2727171;7 }
23
Exhi 't "E"
Regulatin:SPlan
{M2727171;7}
24