HomeMy WebLinkAbout15-00736 Backup - 1SUPPORTING
CITY Old' DOCUMENTATION
OFFICE OF THE CITY ATTORNEY
MEMORANDUM
TO: Clarence E. Woods, Director of Southeast
Overtown/Park West Co t �t R d; e +pment Agency
FROM: Victoria Mendez, City A
DATE: April 30, 2015
RE: SEOPW Executive Director is authorized to review and approve
plans/applications for a media tower
Matter No. 15-411
You have requested my Office's opinion on the e following questions:
1, Whether Section 6.5.1 of Miami 21 grants you the authority to
review and approve signage plans for the Miami Media Tower.
2. Whether you may condition that approval upon the applicant's
proffered commitments to make financial and other
contributions for the benefit of the Southeast
OvertownlParkwest Community Redevelopment Agency
("ClIA").
3. Whether the signage plans for the Miami Media Tower require
a Warrant and/or a sign permit, particularly for signage above
fifty (50) feet.
AINAINSIS
A tl�oriry of CRA. Director
ft is our opinion that you have been granted the authority to review and approve the
signage for the Miami Media Tower under Section 6.5.1. of Miami 21 and that you may attach
reasonable conditions to that approval. Your authority to review and approve signage is
expressly provided for in Section. 6.5.1, which states as follows:
All applications stall require a mandatory review and approval by the
Executive Director of the CRA.
(emphasis supplied)
1 Formerly known as Section 6.5.4, tine section was renumbered following the adoption of Ordinance No. 13464.
Clarence E. Woods, rlr, Executive Director of SEOPW-CRA
April 30, 2015
Page 2 of 3
However, you are not the only review in that your review has not supplanted that of the
Zoning Administrator per this section nor any other applicable reviewers. The section states all
applications shall require "a" mandatory review not the sole review. Moreover there is no
language delegating the role of the Zoning Administrator as to signage. This section in fact
requires that you review all applications under this section. See e.g., Whiley v. Scott, 79 So. 3d
702, 715 (Fla. 2011) (Where legislature delegated authority to a department head, the Governor
or his Executive Office could not supplant the department head's role and authority through
Executive Order.) see also Acosta v. Richter, 671 So.2d 149, 153 (Fla. 1996)
("The plain meaning of statutory language is the first consideration of statutory construction.")
In your review, you must take into consideration the following:
Criteria. It is the purpose of the Miami Media Tower to (a) define an area
in the City where signage of this type can be placed on. a tower(s) that,
together with architectural design standards for Buildings within the area
as well as 'Urban Design standards based on new urbanist principles in the
area of the City, will establish a unique local, regional and national identity
within the area; (b) strengthen the eeonomy of the City by encouraging the
development and redevelopment of a depressed, blighted and slum area
within a major redevelopment area within the downtown core of the City;
and (e) provide a source of funds to be used exclusively within said
redevelopment area for redevelopment related activities, and nothing else.
Please note that while your review and approval oldie signage is required, the applicant
must also obtain a Sign Permit as set forth in Section 7.1.2.9, which permit is subject to
applicable criteria and any applicable appeal provisions in Miami 21 via the Zoning
Administrator.
Conditions on Approval
As part of your authority to review and approve applications, you have the implied
authority to impose reasonable conditions upon that approval. See State Board of Education v,
-l\relson, 372 So, 2d 114, 116 (Fla. 1st DCA 1979) ("The power to issue a oertiflcate.. .
necessarily and by fair implication includes the authority to specify the conditions under which
such certificates shall be held and revoked"); Dep rt of Health & Rehabilitative Servs. v. Florida
Psychiatric Soc., .Inc., 382 So. 2d 1280, 1285 (Fla. 1st DCA 1980) (confirming holding in
Nelson).. Where the applicant has proffered as part of the application certain financial and other
benefits, you have the authority to condition the approval on the performance of those
commitments, This is particularly the case Where they bear a reasonable nexus to the purpose
and intent of Section 6.5.1, which is to generate a source of funds to be used exclusively within
the CRA for redevelopment activities 2
2 Any proffered commitments should be memorialized in a written instrument binding the applicant.
Clarence E, Woods, Ili, Executive Director of SEOPW-CRA
April 30, 2015
Page 3 of 3
Necessity of a Warrant for Signage
Section 6.5.1 of Miami 21 is the enabling legislation for the Miami Media Tower that,
inter alla, allows for certain signage in conjunction with the Miami Media Tower that would
not otherwise be authorized by Miami 21.3 However, Section 6.5.1 does not obviate the need
for compliance with all other applicable portions of Miami 21, the City Code, or other
applicable laws and regulations. The fact that Section 6,5.1 discusses the need for sign permits
in connection with the Miami Media Tower does not supersede other applicable regulations.
Signage fifty (50) feet above the Average Sidewalk Elevation as defined in Miami 21 requires
a Warrant.4 As the specific Miami Media Tower legislation is silent as to any modification of
this requirement, it is still applicable. Such signage could be accomplished via the "Special
Sign Package" provision of Miami 21, though such an alternative requires a Warrant as we11.5
Lack of Authority of CRA Board
The power to adopt land development regulations is vested solely in the City
Commission, and in this particular instance by Ordinance No, 13114 granted the review of
signage to you as the Executive Director, not the C1tA. Board. See generally, Whitey, 79 So. 3d
715. Moreover, the organizational documents between Miami -Dade County and the City of
Miarui do riot provide any such authority to the CRA. Therefore the CRA Board does not have
any actual or apparent authority to ratify or alter your decision.
VM/RSRIDSO/rg
fix
E.g., allowing "Outdoor advertising business signs" and "Animated and Flashing signs", Cf, Section
10,14(c)(1) of Miami 21 prohibiting "Illuminated Signs containing functions of Animated Signs."
Section 10.3.6, Miami 21.
5 Section 10.3,7, Miami 21.
Prepared by
and after recording
in the public records
please return to :
William R. Bloom, Esq.
Holland & Kn.ight LLP
701 Brickell Avenue, Suite 3300
Miami, FL 33131
RESTRICTIVE COVENANT
THIS RESTRICTIVE COVENANT (the "Covenant' is made as of this l2' day of
December, 2014 by and between NW 1ST AVENUE AND 10T STREET, LLC, a Florida limited
liability company ("First Ave"), 59 NW loth Street, LLC, a Florida limited liability company
("59 NW"), and 41 NW 10 Street, LLC, a Florida limited liability company ("41 NW"; together
with First Ave and 59 NW, collectively, the "Owner"), and MIAMI BIG BLOCK, LLC, a
Florida limited liability company ("MBB"; together with First Ave, 59 NW and 41 NW,
collectively, the "Developer"), and the SOUTHEAST OVERTOWN/PARK WEST
COMMUNITY REDEVELOPMENT AGENCY, a public agency and body corporate created
pursuant to Section 163.356, Florida Statutes (the "CRA").
RECITALS
A. The Owner is the owner of that certain real property located in the City of Miami
more particularly described on Exhibit "A" attached hereto and made a part hereof (the
"Property") and MBB is the sole member of First Ave, the sole member of 41 NW and the sole
member of 59 NW and as such exercises exclusive control over the
Owner .
B. Developer desires to develop a building and related improvements on the Property
known as the Miami Innovation Tower (the "Proposed Improvements") substantially in
accordance with the plans and specifications prepared by Shop Architects, P.C. dated March 19,
2014 prepared for zoning approvals under Drawing Number G-000.00, Z-100.00, Z-101.00, Z-
102.00, Z-103.00, Z-104.00, Z-105.00 and Z-106.00 a copy of which are attached hereto as
Exhibit "B" and incorporated herein by reference (the "Preliminary Plans"), and utilize same as
a Media Tower as defined in Section 6.5.1 of Miami 21.
C. Section 6.5.1 of Miami 21 provides that a "Media Tower is a structure that may
serve as a viewing tower and a kinetic illuminated media display system, utilizing signage, video
and all other forms of animated illuminated visual message media within the
Southeast/Overtown Park West Redevelopment Area. It is intended that such a structure shall be
used to achieve an overall effect and aesthetic consistency within the private -owned properties
within the area based upon criteria provided for and set forth in the Southeast/Overtown Park
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West Redevelopment Area Plan and applicable provisions of Chapter 163, Part III, Florida
Statutes."
Tower:
D. Section 6.5.1 of Miami 21 further provides the following criteria for a Media
"criteria. It is the purpose of the Miami Media Tower to (a) define an area in the City
where signage of this type can be placed on a tower(s) that, together with architectural
design standards for Buildings within the area as well as Urban Design standards based
on new urbanist principles in the area of the City, will establish a unique local, regional
and national identity within the area; (b) strengthen the economy of the City by
encouraging the development and redevelopment of a depressed, blighted and slum area
within a major redevelopment area within the downtown core of the City; and (c) provide
a source of funds to be used exclusively within said redevelopment area for
redevelopment related activities, and nothing else."
E. Developer obtained a letter dated March 25, 2014 from Irene S. Hegedus, AIA,
Zoning Administrator for the City of Miami (the "Zoning Letter"), indicating that the Proposed
Improvements may be developed on the Property in accordance with the Preliminary Plans and
complies with the intent of Miami 21 based upon the current Zoning Ordinance as adopted. The
Developer nevertheless hereby acknowledges that the Proposed Improvements must comply with
all applicable provisions of Miami 21.
F. The Property is located within the Southeast/Overtown Park West Community
Redevelopment Area (the "SEOPW Area") and the Southeast/Overtown Park West Community
Redevelopment Plan prepared by Dover Kohl in 2004, as updated May 2009 by the Planning
Department (the "Redevelopment Plan") designates the area where the Property is located as a
possible location for a Media Tower.
G. Section 6.5.1 of Miami 21 permits the development of a Media Tower within the
SEOPW Area and provides that the "Miami Media Tower shall exist solely in the Southeast
Overtown/Park West Redevelopment Area."
H. Section 6.5.1 of Miami 21 provides that "A sign permit shall be required for such
Signs specified herein. All applications shall require a mandatory review and approval by the
Executive Director of the CRA."
I. The Executive Director of the CRA (the "Executive Director") has reviewed the
Miami Innovation Tower Digital Sign Package prepared by A2a Media dated May 19, 2014
describing five (5) digital signs having a total display area of approximately 84,750 square feet, a
copy of which is attached hereto as Exhibit "C" and incorporated herein by reference (the "Sign
Package").
J. Developer has requested that the Executive Director approve the application for
the Signs, as defined in. Miami 21, included in the Sign Package (the "Sign Permit Application")
to be filed with the Zoning Department. Approval by the Executive Director of the CRA. is in
addition to and not in substitute for compliance with applicable provisions of Miami 21 and/or
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the City of Miami Code. Under the current regulations the Developer must submit an application
for a Sign Permit pursuant to Section 7.1.2,9 of Miami 21 and the Sign Permit is subject to
applicable criteria and appeal provisions of Miami 21.
K. The Executive Director has found that: (i) based solely on the Zoning Letter, the
Proposed Improvements which Developer intends to utilize as a Media Tower, may be
developed on the Property in accordance with the Preliminary Plans and complies with the intent
of Miami 21; (ii) the Sign Permit Application appears to be consistent with the criteria set forth
in Section 6.5.1 of Miami 21; (iii) the payments to be provided by Developer, as hereinafter
provided, will (a) provide a source of funds to be used exclusively within the SEOPW Area for
redevelopment related activities as contemplated by Section 6.5.1 of Miami 21, (b) provide
community benefits in connection with the construction and operation of the Proposed
Improvement, including, without limitation, opportunities for subcontractors whose principal
place of business is located in the Redevelopment Area or in the City of Miami to participate in
the construction of the Proposed Improvements, (c) provide opportunities for unskilled laborers
who reside in the Redevelopment Area or in the City of Miami to participate in the construction
of the Proposed Improvements, (d) provide first source hiring opportunities for residents of the
Redevelopment Area and the City of Miami for employment in connection with the operation of
the Proposed Improvements and (e) provide opportunities for small business enterprises to be
involved in the Miami Innovation Tower, all as more particularly set forth in this Covenant. The
Executive Director's approval is not a substitute for other applicable approvals required under
Miami 21. The Developer and the Owner acknowledges that the Executive Director is not a
land development authority or official, is not a land development regulations permitting authority
or official and does not exercise the jurisdiction of the Planning and Zoning Director or Zoning
Administrator of the City and that Developer must comply with all applicable provisions of
Miami 21.
L. In consideration of the Executive Director agreeing to approve the Sign Permit
Application, Developer agrees to provide the community benefits to the CRA and residents of
the SEOPW Area as hereinafter provided and comply with the terms of this Covenant.
NOW, THEREFORE, for and in consideration of $10.00 and other good and valuable
consideration, the sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Recitals. The Recitals to this Covenant are true and correct and hereby
incorporated by reference and made a part hereof.
2. Defined Terms. The following terms used in this Covenant shall have the
following meanings:
"Affiliate" means (a) as to any Person, any other Person that (i) owns directly and/or
indirectly ten percent (10%) or more of all equity interests in such Person, and/or (ii) is in
Control of, is Controlled by or is under common ownership or Control with such Person,
and/or (iii) is a principal, director or officer of such Person or of nn Affiliate of such
Person, and/or (iv) is the spouse, issue, brother, sister, or parent of such Person or an
Affiliate of such Person.
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"Auditor" means an independent third party auditor, who may not be an employee of the
Developer, Owner or the CRA, who may be retained on any given year by the Developer
or the CRA, at the sole cost and expense of Owner, in accordance with Section 7.4.
"Back-up Documentation" means copies of all purchaser orders and other agreements
with the Naming Rights Sponsor, Media Sponsors, any other entities with respect to
purchasing time, advertising rights and use rights, associated with the Media Displays
including any license or use agreements for use of the Media Displays for advertising or
any other purpose, and any and all other documents and agreements relating to the Gross
Revenues derived directly or indirectly form the Media Displays, together with account
summaries detailing the Gross Revenues derived from any such contracts or agreements.
"Building Department" means the City of Miami Building Department.
"City" means the City of Miami, a municipal corporation of the State of Florida.
"Commencement of Signage Operation" means the date that any of the signage included
in the Sign Perinit Application is first placed into operation.
"Completion" means substantial completion of the Proposed Improvements and the
Signage contemplated by the Sign Permit Application, subject only to completion, punch
list items, and the issuance of a temporary certificate of occupancy or completion, as
appropriate.
"Consumer Price Index" means the Consumer Price Index published by the Bureau of
Labor Statistics of the United States Department of Labor as the Consumer Price Index
for All Items, Miami -Ft. Lauderdale, Base Year 1982-1984 = 100, or its equivalent if
discontinued.
"Control" means with respect to any Person, the possession, directly or indirectly, of the
power to cause the direction of the management and policies of a Person, whether
through the ownership of voting securities, by contract, family relationship or otherwise.
Controlled and Controlling shall have correlative meanings.
"CRA" means the Southeast/Overtown Park West Community Redevelopment Agency, a
public agency and body corporate created pursuant to Section 163.356, Florida Statutes.
"CRA Approval" means the approval of the Sign Permit Application by the Executive
Director.
"CRA Board" has the meaning ascribed to said term in Section 5.2.3.
"Developer" means First Ave, 41 NW, 59 NY and MBB.
"Engineering Report" has the meaning ascribed to said term in Section 4.3.
"Enhanced Wages" has the meaning ascribed to said term in Section 5.7.
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"Executive Director" has the meaning ascribed to said term in the Recitals,
"Gross Revenues" means all revenues of any kind or nature derived by First Ave, 41
NW-, 59 NW and/or MBB and/or any of their Affiliates directly or indirectly from (i) any
naming rights granted in connection with the Proposed Improvements; (ii) any
advertising revenues generated from any of the signage on the Proposed Improvements;
and (iii) any use agreements or license to use all or any portion of the signage on the
Proposed Improvements.
"Innovation Tower" or "Miami Innovation Tower" means the Proposed Improvements
and Signage to be utilized as a Media Tower by Developer, its successors or assigns.
"Laborer Non -Compliance Funds" has the meaning ascribed to said term in Section 5.3.2.
"Laborer Participation Requirement" has the meaning ascribed to said term in Section
5.2.2.
"Media Sponsor" means a commercial or public entity sponsor of media content depicted
on the Innovation Tower.
"Media Tower" or "Miami Media Tower" has the meaning ascribed to said term in 6.5.1
of Miami 21.
"Media Displays" means the illuminated media display systems on the Innovation Tower
as depicted in the Sign Package consisting of the Plaza Displays and the Tower Displays.
"Miami 21" means the Miami 21 Code of the City of Miami, Florida adopted by the City
Commission pursuant to Ordinance 13114 on October 22, 2010 and as subsequently
amended and codified on May 22 2014.
"Minimum Payment" shall mean One Million and No/100 Dollars ($1,000,000.00) per
year, which payment amount shall be increased annually commencing one year after the
conunencement of Signage operations by an amount equal to the greater of (i) three
percent (3%) or (ii) the amount of any increase in the Consumer Price Index over the
Consumer Price Index the previous year.
"Naming Rights Sponsor" means the principal sponsor of the Innovation Tower which
has its name affixed to the Innovation Tower on a permanent or long-term basis and by
which name the Innovation Tower is referred to in media references to the Innovation
Tower.
"Participation Requirements" has the meaning ascribed to said term in Section 5.2.
"Percentage Revenue Payments" has the meaning ascribed to said term in Section 7.3.1.
"Person" means any individual, corporation, limited or general partnership, limited
liability company, trust, unincorporated organization or other entity or natural person.
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"Planning and Zoning Department" means the City of Miami Planning and Zoning
Department unless the term "Planning and Zoning Director" is used in which case it will
mean the administrative head of this Department.
"Plaza Displays" means the media displays at the podium level that is intended to be
viewed by users of the plaza.
"Preliminary Plans" has the meaning ascribed to said term in Recital B.
"Proposed Improvements" has the meaning ascribed to said term in Recital B and
excludes elements referred to herein as Signage.
"Property" has the meaning ascribed to said term in the Recital A.
"Public Service Display Time" has the meaning ascribed to said term in Section 6.1.
"Redevelopment Plan" has the meaning ascribed to said term in Recital F.
"SBE" means companies that have been certified as SBE-Construction Services fines by
Miami -Dade County pursuant to Section 10-33.02 of the County Code of Ordinances, as
same may be amended.
"SEOPW Area" has the meaning ascribed to said term in Recital F and is alternatively
referred to in this Covenant as the "Redevelopment Area".
"Sign Code(s)" shall mean Section 6.5.1 of Miami 21, and applicable provisions of the
City of Miami Sign Code, if any .
"Sign Package" shall have the meaning ascribed to said terra in Recital I.
"Signage" shall have the meaning ascribed to said term in Section 3.3.
"Signage Modification" has the meaning ascribed to said term in Section 4.5.
"Subcontractor Participation Reports" has the meaning ascribed to said term in Section
5.3.
"Subcontractor Non -Compliance Funds" has the meaning ascribed to said term in Section
5.3.1
"Subcontractor Participation Requirement" has the meaning ascribed to said term in
Section 5,2.1.
"Tower Displays" means the three (3) tower facade Media Display areas located on the
tower portion of the Innovation Tower.
"Zoning Letter" has the meaning ascribed to said term in Recital E.
3. Miami innovation Tower.
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3.1 Proposed Improvements. Developer shall develop the Proposed
Improvements substantially in accordance with the Preliminary Plans and this Covenant. Any
material changes to the Preliminary Plans other than those changes required to comply with
applicable City, County, State or Federal laws shall require the approval of the Executive
Director, which approval shall not be unreasonably withheld or delayed provided that same is in
accordance with the spirit and intent of Preliminary Plans. A material change to the Preliminary
Plans, except as required to comply with any City, County, State or Federal law, shall mean
changes which increase the aggregate area of the Media Displays or increase the gross square
footage of the Proposed Improvements by more than ten percent (10%).
3,2 Maximum Height and Size. The Proposed Improvements including any
tower elements, shall not exceed 675 feet from the crown of the road of NW 1st Avenue and the
habitable floor area shall not exceed 199,000 square feet.
3.3 Signage. The signage (the "Signage" or "Sign") on the Proposed
Improvements shall be substantially in accordance with the Sign Package and the terrns of this
Covenant. Any material variation of the Signage that increases the aggregate area of the Media
Displays shall require the approval of the Executive Director, and such other approvals as are
provided by the Sign Code, as applicable, which approval shall not be unreasonably withheld
provided such material variation is consistent with all applicable Sign Codes, the Sign Package
and this Covenant.
3.4 Compliance with Applicable Regulations. The Proposed Improvements
and the Signage must be designed and constructed in accordance with Section 6.5.1 of Miami 21
and the Sign Package, and the plans and specifications and the Sign Permit Application must be
approved by the Planning and Zoning Department and a building permit must be obtained from
the Building Department. The execution of this Covenant shall not be deemed or construed as a
representation, affirmation or warranty by the Executive Director or the CRA that the Proposed
hmprovements and Signage included in the Sign Permit Application comply with Miami 21, the
Sign Codes, technical codes ( i.e. electrical, fire, etc.) of the City of Miami Code and Developer
acknowledges and agrees that the Proposed Improvements and Signage are subject to the review
and approval of the Planning and Zoning and Building Departments. Developer acknowledges it
must comply with any applicable provisions of the Florida Building code, and any other
regulations having jurisdiction over the Proposed Improvements including, without limitation,
Miami 21.
3.5 Application for Building Permit. Developer agrees not to obtain any
permits or approvals with respect to the Proposed Improvements and/or a final Sign Permit until
this Covenant is executed by all parties, including required mortgagees, and recorded in the
public records of Miami -Dade County, Florida.
4. SIGNAGE RESTRICTIONS.
4.1 Signage. Any Signage associated with the Proposed Improvements must
be substantially consistent with the Sign Permit Application, must comply with all applicable
Sign Codes and regulations and comply with the following criteria (the "Sign Criteria"):
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4.1.1 The Signage on the Proposed Improvements shall consist of not
more than five (5) visual media display systems each of which shall be constructed to display
one or more paintings or artistic works, that may be electronic and composed of photographs,
animation, or arrangements of color, and that display a commercial or noncommercial message,
rely on the Proposed Improvements for rigid structural support, and are applied to the Proposed
Improvements or depicted on vinyl, fabric, metallic mesh or other similarly semi -flexible
material that is erected parallel to the building's surface.
4.1.2 A maximum of five (5) surfaces of visual Media Displays,
including the surfaces of any tower elements. A visual Media Display shall be permitted to
cover the entirety of each surface, and shall be oriented to minimize the impact to residential
areas, as depicted in the Sign Package.
4.1.3 The material depicted on the Signage shall be predominately
pictorial, with text consisting of less than 50 percent of the display at any one time.
4.1.4 The visual Media Displays utilized for the Signage shall be
illuminated by light emitting diode (LED) lights or similar technologies. Illumination shall not
result in unreasonable glare, light intrusion, and intensity that might pose safety hazards to
drivers or pedestrians.
4.1.5 The commercial material depicted on the Signage need not pertain
to the use of the Property and may advertise products or services not offered on the Property
provided, however, that firearms, tobacco products, and products or services consisting of
obscene material are not allowed.
4.1.6 The media displayed on the Tower Displays shall be oriented so as
not to face any existing residential unit(s), within 500 feet of the property line of the Property at
a height lower than the height of the highest residential unit windows (i.e., the lowest media
displayed will be higher than any residential unit windows located within 500 feet of the
Innovation Tower). For the purposes of this condition, a residential building shall be determined
to be "existing" if it is the subject of a temporary certificate of occupancy as of the date a final
building permit is issued for the Proposed Improvements. No portion of Innovation Tower shall
be located within 300 feet of any residential units in T3, T4 or T5 Transect zoning districts.
4.1.7 The media display systems utilized for the Signage shall be
designed so that illumination of the Signage shall not increase the light levels in any direction by
more than the following:
1. 1.75 foot-candles above the ambient lighting level when measured
at a distance of 400 feet from the base of the Innovation Tower.
2. 1.5 foot-candles above the ambient lighting level when measured
at a distance of 600 feet from the base of the Innovation Tower.
3. 1.25 foot-candles above the ambient lighting level when measured
at a distance of 800 feet from the base of the Innovation Tower.
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4.1.8 The total square footage of the Signage shall not exceed 85,000
square feet.
4.1.9 The Signage shall not display nudity or obscene material as those
terms are defined in Section 847.001, Florida Statutes, as interpreted by applicable case law.
4.1.10 Images on the Tower Displays shall consist of kinetic illuminated
media, utilizing signage, motion graphics and animation, illustration and all other forms of
animated illumination visual message media a minimum of every six (6) seconds.
4.2 Sign Package. Developer represents and warrants to the CRA that the
Signage complies with the Sign Criteria set forth in Section 4.1 of this Covenant in all respects
and Section 6.5.1 of Miami 2L
4.3 Compliance with Sign Criteria. Prior to Developer operating any Signage
in connection with the Proposed Improvements, Developer shall provide to the Executive
Director an engineering report (the "Engineering Report") prepared by a Florida licensed
electrical engineer certifying to the Developer and the CRA that the Signage actually installed on
the Proposed Improvements is substantially in accordance with the Signage Package and
complies in all respects with the provisions of Sections 4.1.2, 4.1.6 and 4.1.7 of this Covenant.
4.4 Annual Certification. Not later than March 1 of every year after the
Commencement of Signage Operations on the Proposed Improvements, Developer shall submit
to the Executive Director an Engineering Report prepared within the last ninety (90) days
certifying to the Developer and the CRA that the Signage actually installed on the Proposed
Improvements complies in all respects with the provisions of Sections 4.1.2, 4.1.6, 4.1.7 and
4.1.8 of this Covenant.
4.5 Alteration of Signage. In the event Developer modifies any of the Signage
installed on the Proposed Improvements (a "Signage Modification"), other than in connection
with routine maintenance and repairs, Developer must obtain the approval of the Executive
Director which shall not be unreasonably withheld or delayed, subject to compliance with
applicable Sign Codes and/ or other applicable regulations. Developer shall not commence the
operation of any Signage Modification until after Developer has provided to the Executive
Director an Engineering Report confirming that the Signage, as modified by the Signage
Modification, complies in all respect to the provisions of Sections 4.1.2, 4.1.6, 4.1.7 and 4.1.8 of
this Covenant.
4.6 Compliance with Sign Criteria. Developer covenants and agrees that all
Signage shall comply with the Sign Criteria and all other applicable laws regarding the use and
operation of any Signage associated with the Proposed Improvements. Developer acknowledges
and agrees the operation of any Signage on the Property in violation of the Sign Criteria is
strictly forbidden.
5. LOCAL PREFERENCE AND EQUAL EMPLOYMENT OPPORTUNITY.
5.1 In connection with the Proposed Improvements and Signage, the
Developer agrees that it and its general contractor will:
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1. Take definitive action in the recruitment, advertising and to attract
and retain minority and female contractors end subcontractors;
2. Provide a reasonable opportunity in the recruitment, advertising
and hiring of professionals, contractors and subcontractors residing
within the SEOPW Area and within the City;
3. Take reasonable definitive action in retaining employees regardless
of race, color, place of birth, religion, national origin, sex, age,
marital status, veterans and disability status;
4. Maintain equitable principles in the recruitment, advertising,
hiring, upgrading, transfer, layoff, termination, compensation and
all other terms, conditions and privileges of employment;
5. Monitor and review all personnel practices to guarantee that equal
opportunities are being provided to all employees regardless of
race, color, place of birth, religion, national origin, sex, age,
marital status, veterans and disability status;
6. Post in conspicuous places, availability to employees and
applicants for employment, notices, setting forth the non-
discrimination clauses of this Section 5.
7. In all solicitations and advertisements for employment placed by or
on behalf of Developer, state that all applicants will receive
consideration for employment without regard to race, creed, color
or national origin.
5.2 Participation Requirements During Construction. Developer shall comply
with the following subcontractor participation requirements an d laborer participation
requirements (the "Participation Requirements") with respect to the construction of the Proposed
Improvements and Signage:
5.2.1 Subcontractor Participation. The Developer shall require its
general contractor to hire not less than twenty percent (20%) of the subcontractors for the
construction of the Proposed Improvements to have their principal place of business located in
the City, giving first priority to SBE firms whose principal place of business is in the
Redevelopment Area which encompasses part of zip code 33136 which Redevelopment Area is
shown on Exhibit "D", second priority to subcontractors whose principal place of business is in
the Redevelopment Area which encompasses part of zip code 33136, third priority to SBE firms
whose principal place of business is located within the boundaries of the Overtown community,
as more particularly described in Exhibit "E", which Overtown community encompasses part of
zip code 33136 (the "Overtown Community"), fourth priority to subcontractors whose principal
place of business is located within the boundaries of the Overtown Community, fifth priority to
SBE firrns whose principal place of business is located within zip codes 33127, 33128, 33130,
33136, 33142, 33125, 33150, 33135, and that portion of zip codes 33133 and 33146 commonly
known as "West Coconut Grove" (collectively, the "City Targeted Zip Codes") which include
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the five (5) poverty rated zip codes located in the City, sixth priority to subcontractors whose
principal place of business is within the City Targeted Zip Codes, seventh priority to SBE firms
whose principal place of business is located in the City but outside the City Targeted Zip Codes,
eighth priority to subcontractors whose principal place of business is located in the City but
outside the City Targeted Zip Codes and last priority to subcontractors whose principal place of
business is outside the City but in Miami -Dade County. For purposes of calculating the twenty
percent (20%) subcontractor participation, the twenty percent (20%) participation shall be
calculated based upon the numerator being the dollar value of all subcontracts given to
subcontractors whose principal place of business is in the City and the denominator being the
total dollar value of all subcontracts entered into by the general contractor over the entire course
of construction of the Proposed Improvements and Signage (" Subcontractor Participation
Requirement").
5.2.2 Laborer Participation. Developer shall require its general
contractor and all subcontractors to hire forty percent (40%) of the labor for the construction of
the Proposed Improvements ("Laborer Participation Requirement") from workers residing in the
City giving first priority to workers residing in the Redevelopment Area which encompasses part
of zip code 33136, second priority to workers residing in the Overtown Community, third
priority to workers residing in the City Targeted Zip Codes, fourth priority to workers residing in
the City but outside the City Targeted Zip Codes and last priority to workers residing outside the
City but in Miami -Dade County.
5.3 Disputes. In the event of any disputes between the Executive Director mid
the Developer as to whether any subcontractor has its principal place of business in the City or
whether any laborer resides in the City and whether the Developer complied with the priority
requirements, the Developer and the Executive Director shall proceed in good faith to resolve the
dispute. In the event the dispute is not resolved within ten (10) days either party may submit the
dispute to the CRA Board of Commissioners (the "CRA Board") for resolution. The decision of
the CRA Board shall be binding on the parties.
5.4 Report Requirements. The Developer shall be required to submit to the
Executive Director (i) on a quarterly basis commencing thirty (30) days after the end of the first
quarter after the commencement of construction of the Proposed Improvements until thirty days
following Completion, detailed reports evidencing compliance with the Subcontractor
Participation Requirement during the prior quarter and (ii) on a monthly basis commencing thirty
(30) days after the commencement of construction of the Proposed Improvements and the
Signage until thirty days following Completion, detailed reports evidencing compliance with the
Laborer Participation Requirement during the prior month ("Participation Reports"). The
Participation Reports shall contain such information as the Executive Director may reasonably
require to enable the Executive Director to determine whether the Developer is in compliance
with the Subcontractor Participation Requirement and the Laborer Participation Requirement
with respect to the Proposed Improvements. The Participation Reports shall be certified as true
and correct by the Developer.
5.4.1 Penalties for Non -Compliance with Subcontractor Participation
Requirement. To the extent Developer fails to comply with the Subcontractor Participation
Requirements, with respect to the Proposed Improvements and Signage, Developer shall pay to
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the CRA as a one-time penalty for such non-compliance (a) Ten Thousand and No/100 Dollars
($10,000.00) for each percentage point below the Subcontractor Participation Requirement for
the first three (3) percentage points below the Subcontractor Participation Requirement; (b)
Twenty Five Thousand and No/100 Dollars ($25,000.00) for each additional percentage point
below the first three (3) percentage points below the Subcontractor Participation Requirement for
up to three (3) additional percentage points and thereafter (c) Fifty Thousand and No/100 Dollars
($50,000.00) for each additional percentage point below six (6) percentage points below the
Subcontractor Participation Requirement(collectively, the "Subcontractor Non -Compliance
Funds") with respect to the Proposed Improvements and Signage. The Subcontractor Non -
Compliance Funds shall be calculated by the Executive Director after Completion and shall be
due and payable within thirty (30) days from the date of Developer's receipt of written statement
from the Executive Director stating the amount of Subcontractor Non -Compliance Funds due
with respect to the Proposed Improvements and Signage. To the extent of any dispute between
the Executive Director and the Developer with respect to the compliance with the Subcontractor
Participation Requirement, such dispute shall be submitted to the CRA Board for resolution. The
decision of the CRA Board shall be binding on the parties.
5.4.2 Penalties for Non Compliance with Laborer Participation
Requirement. To the extent Developer fails to comply with the applicable Laborer Participation
Requirement, with respect to Proposed Improvements, Developer shall pay to the CRA as a one-
time penalty for such noncompliance (a) Ten Thousand and No/100 Dollars ($10,000,00) for
each percentage point below the Laborer Participation Requirement for the first four (4)
percentage points below the Laborer Participation Requirement; (b) Fifteen Thousand and
No/100 Dollars ($25,000.00) for each percentage point below the Labor Participation
Requirement for up to eight (8) percentage points thereafter and (c) Fifty Thousand and No/100
Dollars ($50,000.00) for each additional percentage point below percentage points below the
Labor Participation. Requirement (collectively, the "Laborer Non -Compliance Fund") with
respect to the Proposed Improvements and Signage. The Laborer Non -Compliance Fends with
respect to the Proposed Improvements and Signage shall be calculated by the Executive Director
after Completion of the Proposed Improvements and Signage and shall be due within ninety (90)
days from Developer's receipt of written statement from the Executive Director stating the
amount of Laborer Non -Compliance Funds due. To the extent of any dispute between the
Executive Director and the Developer with respect to the compliance with the Laborer
Participation Requirement, such dispute shall be submitted to the CRA Board for resolution. The
decision of the CRA Board shall be binding upon the parties.
5.5 Participation Requirements During Operation.
5.5.1 Small Business Participation. With respect to the commercial
leasable area of the Proposed Improvements which is not occupied or operated by the Developer,
its Affiliates, the Naming Rights Sponsor, or any Media Sponsor, Developer covenants and
agrees to utilize commercially reasonable efforts to lease such commercial leasable area to small
business enterprises whose principal place of business is located in the City giving first priority
to small business enterprises whose principal place of business is in the SEOPW Area, second
priority to small business enterprises whose principal place of business is in the Overtown
Community, third priority to small business enterprises whose place of business is within the
City Targeted Zip Codes, fourth priority to small business enterprises whose principal place of
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business is located in the City outside the City Targeted Zip Codes and last priority to small
business enterprises whose principal place of business is located outside of the City but in
Miami -Dade County.
5.5.2 First Source Hiring.
5.5.2.1. Employment by Developer. In connection with all
employment opportunities available in connection with the operation of the Proposed
Improvements and Signage at the Property, including the commercial components of the
Proposed Improvements, Developer and all of its Affiliates directly or indirectly involved in the
operations of the Property shall recruit and retain employees who are residents of the City, giving
first priority to individuals who reside in the Redevelopment Area, second priority to individuals
who reside in the Overtown Community, third priority to individuals who reside in the City
Targeted Zip Codes, fourth priority to individuals who reside in the City outside of the City
Targeted Zip Codes and last priority to individuals who reside outside of the City but in Miami -
Dade County, with a requirement of having forty percent (40%)of the work force employed by
Developer and its Affiliates at the Property to be residents of the City or County.
5.5.2.2 Employment by Tenants of Developer and Developer's
Affiliates. Developer and its Affiliates shall require each of Developer and Developer's
Affiliates tenants and subtenants conducting business at the Property to recruit and retain
employees who are residents of the City, giving first priority to individuals who reside in the
Redevelopment Area, which encompasses part of zip code 33136, second priority to individuals
who reside in the Overtown Community, third priority to individuals who reside in the City
Targeted Zip Codes, fourth priority to individuals who reside in the City outside the City
Targeted Zip Codes, and last priority to residents of Miami -Dade County who reside outside of
the City, with a requirement of having forty percent (40%) of the work force employed by such
tenants and subtenants of Developer and/or Developer's Affiliates, at the Property be residents of
the City or County.
5.6 Training Programs and Community Outreach. Developer covenants and
agrees to coordinate efforts with the CRA to develop training programs designed to train
residents of the SEOPW Area for the job opportunities contemplated to exist at the Property,
including without limitation, coordinating with Miami -Dade College's hospitality programs to
review curriculum and assisting the CRA in identifying and developing curriculum for
hospitality and entertainment career training programs it creates in the future. Developer agrees
to use commercially reasonable efforts to place graduates of any such training programs
supported by the CRA or identified by the Executive Director in permanent jobs in the
Innovation Tower following its construction.
5.7 Enhanced Wages. Developer shall require its general contractor and
subcontractors to pay their part-time and full-time employees working on the Proposed
Improvements and Signage, and Developer and its Affiliates shall pay their part-time and full-
time employees working in the Innovation Tower either (a) no less than One and No/100 Dollar
($1.00) more than the "Living Wage" as that term is described and set pursuant to Section 2-8.9
Living Wage (A) --- (C) of the Miami -Dade County Code or (b) its gross equivalent when
factoring in tips for those service jobs which generate tips provided the pre-tax earnings for such
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employees guaranteed by the employer are no less than One and No/100 Dollar ($1.00) more
than the Living Wage ((a) and (b) are referred to as the "Enhanced Wages"). For avoidance of
doubt, the 2014-2015 Living Wage is set forth in that certain memorandum dated May 7, 2014
from Gary T. Hartfield, Director of the Miami -Dade County Internal Services Department, Small
Business Development Division, as same may be increased from time to time (the "Living
Wage"). In addition, Developer and its Affiliates shall require their respective tenants and
licensees in leases and/or use agreements to pay their part -tune and full-time employees working
in the Innovation Tower no less than the Enhanced Wages, and the Developer and its Affiliates
shall enforce such provisions.
5.8 Failure to Comply with Enhanced Wages During Construction. In the
event that the general contractor and all subcontractors fail to pay the Enhanced Wages to any
part-time or full-time employees working on the Innovation Tower, which failure is reported to
the Executive Director, the Executive Director shall investigate and if the Executive Director,
based upon its investigation confirms such non-compliance with the Enhanced Wages
requirement, and that same was not a de minimis miscalculation of the Enhanced Wages, the
Developer shall pay to the underpaid employee(s) as a penalty for non-compliance the entire
amount of wages calculated at the Enhanced Wages that such employee would have earned
during his or her employment at the Innovation Tower without any credit being given for the
payments made to such employee which did not comply with the Enhanced Wages requirement
of Section 5.7 of this Covenant. By way of example, and without limitation, an unintentional
bookkeeping error or a miscalculation resulting from a change in the Living Wage set by the
County during the course of employment shall be considered a de minimis miscalculation. Such
amount shall be due to the underpaid employee(s) within thirty (30) days after written demand
from the Executive Director.
5.9 Failure to Comply with Enhanced Wages During Operations. In the event
Developer and its Affiliates fail to pay the Enhanced Wages to any part-time or full-time
employees working at Innovation Tower which failure is reported to the Executive Director, the
Executive Director shall investigate and if the Executive Director, based upon its investigation
confirms such non-compliance with the Enhanced Wages requirement and that same was not a
de minimis miscalculation of the Enhanced Wages, the Developer shall pay to the underpaid
employee(s) as a penalty for non-compliance the entire amount of wages calculated at the
Enhanced Wages that such employee would have earned during his or her employment at the
Innovation Tower without any credit being given for the payments made to such employee which
did not comply with the Enhanced Wages requirement of Section 5.7 of this Covenant. By way
of example, and without limitation, an unintentional bookkeeping error or a miscalculation
resulting from a change in the Living Wage set by the County during the course of employment
shall be considered a de minimis miscalculation. Such amount shall be due to the underpaid
employee(s) within thirty (30) days after written demand from the Executive Director.
5.10 Jobs and Job Fairs.
5.10.1 Construction Job Opportunities. Developer shall contract with an
organization experienced in implementing local preference job opportunities, to broadly
disseminate information regarding job opportunities for local area residents and businesses to
allow them to participate in construction of the Proposed Improvements and Signage, including,
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without limitation, hosting at least two (2) job fairs within the SEOPW Area prior to the
commencement of the Proposed Improvements, and to assist Developer and its contractor in
identifying qualified subcontractors within the priority hiring areas.
5.10.2 Perrnanent Job Opportunities. Developer shall contract with an
organization experienced in implementing local preference job opportunities, to broadly
disseminate information regarding job opportunities for local residents and businesses post -
construction with respect to the Property, including, without limitation, hosting at least two (2)
job fairs within the SEOPW Area prior to Completion in anticipation of the opening of the
Proposed Improvements, and to assist Developer in identifying qualified subcontractors within
the priority hiring areas. Thereafter, Developer shall host at least two (2) job fairs within the
SEOPW Area on an annual basis designed to fill employment needs.
6. COMMUNITY BENEFITS.
6.1 Signage for Public Art and Not -for -Profit Entities. Not less than three
percent (3%) of the display time of each of the tower facade signs and of the Plaza Display shall
be devoted to public art or not -for -profit entities, their events, or public service (the "Public
Service Display Time"). The Public Service Display Time shall be evenly distributed through
the hours of operation. The CRA, or a community based organization designated by the CRA
shall work with the Developer to coordinate and monitor the use of the Public Service Display
Time and the CRA or the community based organization designated by the CRA shall determine
who has the right to utilize up to sixty seven percent (67%) of the Public Service Display Time.
6.2 Use of Plaza Area. The Plaza area of the Proposed Improvements shall be
made available at least once per month for community activities sponsored by the CRA or
community based organizations designated by the Executive Director, at no cost. The CRA or a
conanaunity based organization shall coordinate such activities with the Developer.
6.3 Tickets for Events. Developer shall make available to the CRA 200
tickets per month (2,400 per year) to provide access to the ticketed viewing elements of the
Proposed Improvements at no cost to the CRA to enable the CRA or community based not for
profit, charitable, civic, educational, cultural or scientific organizations designed by the CRA to
disburse the tickets to residents of the SEOPW Area, particularly school -aged children.
6.4 SEOPW Employment Assistance. Within ten (10) days of the issuance of
a building permit for the Tower Displays described in the Sign Package, and after such permit is
final and not subject to appeal, Developer shall provide Two Hundred Thousand and No/100
Dollars ($200,000.00) to a community based organization identified by the Executive Director
that runs an employment assistance program to benefit the Redevelopment Area and through
such assistance encourage the development and redevelopment of depressed, blighted, and slurp
areas within the Redevelopment Area.
7. Payment to the CRA upon issuance of Building Permit and Certificate of
Completion.
7.1 The Developer shall pay the following fees to the CRA to provide fund
sources for redevelopment activities within the SEOPW Area:
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7.1.1 Within ten (10) days of the issuance of any building
permit(s)pursuant to the Sign Permit Application after such permit is final and not subject to
appeal, Three Million and No/100 Dollars ($3,000,000.00)
7.1.2 Within ten (10) days of the issuance of a temporary certificate of
completion, or its equivalent for any signage included in the Sign Permit Application (and the
passage of all applicable appeal periods), but in any event, prior to commencement of Signage
Operation, the Developer shall pay to the CRA Two Million and No/100 Dollars
($2,000,000.00).
7.2 Failure to Make Payments. Developer acknowledges and agrees that
under no circumstances shall Developer be allowed to operate any electronic Signage on the
Property, including any Signage included in the Sign Package, unless and until Developer has
made the payments to the CRA contemplated by Sections 7.1.1 and 7.1.2 of this Covenant.
7.3 Continuing Payments to the CRA.
7.3.1 Percentage of Revenue Payments. In addition to the payments to
the CRA required by Sections 7.1.1 and 7.1.2 of this Covenant, Developer covenants and agrees
to pay to the CRA annually, commencing on the Commencement of Signage Operations, three
percent (3%) of the Gross Revenues, but in no event less than the Minimum Payment (the
"Percentage Revenue Payments"), except that for the first year of operation the Percentage
Revenue Payment due shall be reduced by Two Hundred Thousand and No/100 Dollars
($200,000.00), even if it is below the Minimum Payment, in consideration of the SEOPW
Employment Assistance donation described in Section 6.4 of this Covenant.
7.3.2 Payment of Percentage Revenue Payments. Developer shall make
the Percentage Revenue Payments to the CRA on a quarterly basis with the first payment due
thirty (30) days after the end of the first full three (3) months from Commencement of Signage
Operation and thirty (30) days after the end of each quarter thereafter. Each payment shall be
accompanied by the Back -Up Documentation sufficient to demonstrate the Gross Revenues
utilized to calculate the Percentage Revenue Payment, certified as true and correct by Developer
and which shall be made available for review by the Executive Director or his designee.
7.3.3 Annual Adjustment. Not later than April 1 of each calendar year
after the Commencement of Signage Operation, Developer shall make available for review by
the Executive Director audited financial records reflecting calculation of the Gross Revenues and
the calculation of Percentage Revenue Payment. In the event that any such financial statement
indicates that Developer has underpaid or overpaid the Percentage Revenue Payment made
during the prior twelve (12) months, Developer shall, in the event it has underpaid the amount
due in the preceding twelve (12) month period, make the appropriate payment within ten (10)
days of submission of the audited financial records of the calculation of Gross Revenues, and in
the event it has overpaid the amount due in the preceding twelve (12) month period, make the
appropriate adjustment to the next quarterly Percentage Revenue Payment.
7.4 Right to Audit. Subject to reasonable notice, the CRA and its duly
authorized agents shall have the right (but not any duty or obligation) no more than twice per
16
calendar year and during normal business hours: (i) to enter the Proposed Improvements and any
other location containing the records relating to the Developer, the Proposed Improvements and
the Developer's compliance with the terms and conditions of this Covenant; and (ii) to inspect
and audit any and all of the Developer's records or accounts pertaining to Gross Revenues, the
Developer, the Proposed Improvements and the Developer's compliance with the terms and
conditions of this Covenant.If an audit discloses that Developer has miscalculated or
misrepresented Gross Revenues over the course of the preceding twelve (12) month period by
more than three percent (3%), Developer shall pay for the actual verifiable professional fees and
expenses in connection with the audit. Interest shall be applied to any amount determined to be
due as provided in Section 16 of this Covenant.
8. REPRESENTATIONS. Developer makes the following representations to the
CRA as follows:
8.1 Developer is a limited liability company, duly organized and validly
existing under the laws of the State of Florida and has full power and capacity to own their
properties, to carry on their business as presently conducted, and to enter into the transactions
contemplated by this Covenant.
8.2 Developer's execution, delivery and performance of this Covenant has
been duly authorized by all necessary company actions and does not and shall not conflict with
or constitute a default under any indenture, agreement or instrument to which such entities are a
party or by which they may be bound or affected.
8.3 This Covenant constitutes the valid and binding obligation of Developer
and Owner, and it runs with the Property and is enforceable against Developer and Owner and
their heirs, successors, assigns, or surviving entities following a merger in accordance with its
terms, subject to bankruptcy, insolvency and other similar laws affecting the rights of creditors
generally.
8.4 Owner is the owner of good and marketable fee simple title to the Property
free and clear of all mortgages or other liens and encumbrances other than taxes and assessments
for the current year, and (a) that certain Purchase Money Mortgage, Assignment of Rents and
Security Agreement executed by First Ave in favor of 67 N.W. 10tt' Street, LLC, a Florida
limited liability company and 85 N.W. 10th Street, LLC, a Florida limited liability company,
recorded June 18, 2013, in Official Records Book 28688, at Page 2925 of the Public Records of
Miami -Dade County, Florida; and (b) that certain Mortgage executed by 41 NW in favor of Lion
Financial, LLC, a Florida limited liability company, dated September 30, 2013 and recorded in
Official Records Book 28848, at Page 3350, of the Public Records of Miami -Dade County,
Florida (each an "Existing Mortgage").
9. DEFAULT AND REMEDIES. If Developer fails to comply with any of the
terms and provisions of this Covenant, including, without limitation the payment of money or the
performance of any other obligation under this Covenant which failure is not cured by the
Developer within thirty (30) days of written notice from the CRA, the CRA may pursue all
remedies available at law or in equity to enforce the terms and provisions of this Covenant,
including seeking injunctive relief
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10. NOTICES. Any notices required or permitted to be given under this Agreement
shall be in writing and shall be deemed to have been given if delivered by hand, sent by
recognized overnight courier (such as Federal Express), or mailed by certified or registered snail, •
return receipt requested, in a postage prepaid envelope, and addressed as follows:
If to Developer:
Michael Simkins
Miami Big Block, LLC
301 W 41 Street, #406
Miami Beach, Florida 33140
With a copy to:
If to CRA:
Tony Recio, Esq.
Edward Martos, Esq.
Weiss Scrota Hellman Cole Bierman & Popok, F.L.
2525 Ponce de Leon Boulevard, Suite 700
Coral Gables, Florida 33134
SOUTHEAST OVERTOWN / PARK WEST
COMMUNITY REDEVELOPMENT AGENCY
Attention: Clarence E. Woods, III., Executive Director
819 NW 2ud Avenue, 3rd Floor
Miami, FL 33136
With a copy to:
William R. Bloom, Esq.
Holland & Knight, LLP
Suite 3300
701 Brickell Avenue
Miami, FL 33131
With a copy to:
Staff Counsel
Southeast OvertownlPark West
Community Redevelopment Agency
819 NW 2nd Avenue, 3rd Floor
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Miami, FL 33136
And with a copy to:
And with a copy to:
City Attorney Victoria Mendez
444 SW 2" d Ave. Suite #945
Miami, Fl. 33130.
Notices personally delivered or sent by fax shall be deemed given on the date of delivery
and notices mailed in accordance with the foregoing shall be deemed given upon receipt or the
date delivery is refused.
11. CHALLENGES.
11.1 No Liability. Developer hereby forever waives and releases the Executive
Director and the CRA from any liability whatsoever, now or hereafter arising in connection with
any third party challenge to the granting of the Signage Approval by the Executive Director and
this Covenant and covenants and agrees not to initiate any legal proceedings against the
Executive Director and/or the CRA in connection with any challenges to the Signage Approval
and this Covenant.
11.2 Duty to Defend. In the event of any challenge to the Signage Approval
and/or any use made by virtue or accruing or arising by virtue of this Covenant, or alleged
violation of any applicable law, sign code or applicable ordinance, regulation or other code,
Developer, at its sole cost and expense, shall defend any such third party challenge and tender
and make a defense, through administrative, trial and appellate proceedings, on behalf of itself
and the CRA by competent defense counsel reasonably acceptable to the Executive Director, and
will pay and discharge any damages, judgments, costs, fees or expenses that may be awarded by
a court of competent jurisdiction or timely appeal them. The CRA shall cooperate with
Developer and, if necessary, participate in the defense of such challenge provided Developer
pays the costs of such defense.
11.3 Waiver of Claims. Developer waives any and all claims which Developer
now has or may hereafter have against the Executive Director and/or the CRA and or as a result
of any third party challenge to the Signage Approval and this Covenant and Developer
acknowledges and agrees to assume the risk of any third party challenge to the Signage Approval
and this Covenant. Under no circumstances shall Developer be entitled to any recovery with
respect to any claims or any cause of action against the Executive Director and/or the CRA
resulting from any challenge to the Signage Approval and this Covenant, all such claims being
expressly waived by Developer.
11.4 Termination. In the event that the Developer is unable to obtain a Sign
Permit(s) for the Signage substantially in compliance with the Sign Permit Application for any
reason, and as a result Developer temiinates the Sign Permit Application approved by the
Executive Director, or all Sign Permit(s) issued pursuant to the Sign Permit Application are
revoked, rescinded, or otherwise rendered invalid through any legal, equitable, or administrative
19
proceeding, this Covenant shall be of no further force or effect upon Developer providing a
certificate that the Property cannot be utilized as a Media Tower, and the Developer shall forever
be released from any and all obligations provided herein. In such event, upon Developer's
written request, the CRA agrees to immediately execute an instrument acknowledging the
termination of this Covenant upon presentation of such instrument by Developer.
12. CONSULTANT AND PROFESSIONAL COMPENSATION. Developer may
retain consultants and professionals to assist Developer with the negotiation and execution of this
Covenant and Developer may compensate those consultants and professionals at their standard
hourly rate for services performed, or any other method of compensation that is considered
standard and reasonable for that particular service. Notwithstanding anything to the contrary
contained herein, in no event shall Developer compensate any such consultant or professional in
any form that would be deemed a "bonus", "success fee", or "finder's fee", in exchange for the
Signage Approval and this Covenant. All persons retained by Developer or Owners shall be
deemed employees or independent consultants of Developer or Owner and not of the CRA.
13. RELATIONSHIP BETWEEN PARTIES. This Covenant does not evidence the
creation of nor shall it be construed as creating, a partnership or joint venture or any kind of
business entity affiliation between the CRA and Developer. No party can create any obligations
or responsibility on behalf of the other or bind the other in any manner. Each party is acting for
its own account, and it has made its own independent decisions to enter into this Covenant and as
to whether the same is appropriate or necessary. Each party acknowledges that none of the other
parties hereto is acting as a fiduciary for or an adviser to it in respect of this Covenant or any
responsibility or obligation contemplated herein. Developer further represents and
acknowledges that no one was paid a fee, connnission, gift or other consideration by Developer
or Developer's agents as an inducement to obtain the Signage Approval or entering into this
Covenant.
14. MISCELLANEOUS.
14.1 This Covenant shall be construed and governed in accordance with the
laws of the State of Florida. Venue shall be in Miami -Dade County, Florida. All of the parties
to this Covenant have participated fully in the negotiation and preparation hereof, and,
accordingly, this Agreement shall not be more strictly construed against any one of the parties
hereto.
14.2 In the event any term or provision of this Covenant is determined by
appropriate judicial authority to be illegal or otherwise invalid, such provision shall be given its
nearest legal meaning or be construed as deleted as such authority determines, and the remainder
of this Covenant shall be construed to be in full force and effect.
14.3 In the event of any litigation between the parties under this Covenant, the
prevailing party shall be entitled to reasonable attorney's fees and court costs at all trial and
appellate levels.
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14.4 In construing this Covenant, the singular shall be held to include the
plural, the plural shall be held to include the singular, the use of any gender shall be held to
include every other and all genders, and captions and Section headings shall be disregarded.
14.5 All of the exhibits attached to this Covenant are incorporated in, and made
a part of, this Covenant.
14.6 Time shall be of the essence for each and every provision of this
Covenant.
15. COVENANT RUNNING WITH THE LAND. This Covenant shall be deemed a
covenant running with the Property and shall be binding upon Developer and Owner and their
successors, heirs, affiliates, subsidiaries and assigns.
16. LIEN RIGHTS UNDER SECTION 5. If Developer fails to pay any amount due
the CRA pursuant to Sections 7.1.1, 7.1.2, or 7.3, such unpaid amounts shall bear interest at
twelve percent (12%) per annum from the date due until paid and shall be secured by this
Covenant. If any amounts due pursuant to Sections 5.3.1 or 5.3.2 have not been paid within sixty
(60) days of when due same shall constitute a lien upon the Property having priority as of the
recording of this Covenant and same may be foreclosed upon in the same manner in which a
mortgage is foreclosed.
17. EXISTING MORTGAGES AND FUTURE MORTGAGES. The CRA
acknowledges that the holder of any existing mortgages and the holder of any future mortgages
which succeeds to the interest of Developer in the Property under the Covenant, shall not be:
a) Liable for any act or omission of any prior owner; or
b) Bound by any representation or warranty made by Developer.
Further, CRA agrees to give the holder of any mortgage who has provided notice of its existence
to the CRA in accordance with the notice provisions of this Covenant, by registered mail or
certified mail, return receipt requested sent to Mortgagee's address provided to the CRA, a copy
of any notice of default served upon Developer. CRA further agrees that if Developer shall have
failed to cure such default within the time provided for in the covenant then such Mortgagee
shall have the right but not the obligation for an additional sixty (60) days within which to cure
such default before CRA exercises its rights available to it under the Covenant or if such default
cannot be cured within that time, then such additional time as may be necessary to cure such
default shall be granted if within sixty (60) days Mortgagee has commenced and is diligently
pursuing to cure such default (not to exceed one hundred twenty (120) days). The liability of
such Mortgagee for the performance of any obligation of Developer under the Covenant shall be
limited to Mortgagee's interest in the Property, and CRA hereby agrees that any judgment it may
obtain against any mortgagee as a result of mortgagee's failure, as owner, to perform any of
Developer's obligations under the Covenant shall be enforceable solely against mortgagee's
interest in the Property.
18. ENTIRE AGREEMENT. This Covenant constitutes the entire agreement and
understanding between the parties with respect to the subject matter hereof and there are no other
21
agreements, representations or warranties other than as set forth herein. This Covenant may not
be changed, altered or modified except by an instrument in writing signed by the party against
whom enforcement of such change would be sought, with the Executive Director's signature
sufficient to bind the CRA. This Covenant shall be binding upon the parties hereto and their
respective successors and permitted assigns.
19. ASSIGNMENT. The CRA may assign all or any portion of its rights under this
Covenant, including the payments due hereunder, to any third party, with the approval of the
CRA Board and any such assignment shall be binding upon the Developer upon receipt of notice
of such assignment.
20. TERMINATION OF CRA. Upon the termination of the CRA, all rights under
this Covenant not previously assigned by the CRA shall automatically be transferred to the City
and thereafter all references to the Executive Director shall be deemed references to the City
Manager and all references to the CRA Board shall be deemed references to the City
Commission. This will occur automatically by the express terms of this Covenant and will not
require any further action by either party to effectuate.
IN WITNESS hereof the parties have executive this Covenant as of the date first above
written.
DEVELOPER:
MIAMI BIG BLOCK, LLC,
a Florida limited liabilit'company
By:
Name: Michael Simkins, l
Title: co -Manager and authorized signatory
NW 15t AVENUE AND 10th STREET, LLC,
a Florida limited liability company
BY: MANAGING ENTITY, LLC, a Florida
limited liability company, its Manager
BY: MIAMI BIG BLOCK, LLC, a Florida
limited liability comply, its sole Member and Manager
By:
Name: Michael Sin (ins,
Title: co -Manager and authorized signatory
59 NW 10th Street, LLC,
22
a Florida limited liability company
BY: MANAGING ENTITY, LLC, a Florida
limited liability company, its Manager
BY: MIAMI BIG BLOCK, LLC, a Florida
limited liability company, its sole Member and Manager
By:
Name: ichaet Simkins,
Title: co -Manager and authorized signatory
41 NW 10 STREET, LLC,
a Florida limited liability company
BY: MANAGING ENTITY, LLC, a Florida
limited liability company, its Manager
BY: MIAMI BIG BLOCK, LLC, a Florida
limited liability company, it sole Member and Manager
By:
Name: Michael Simkins,
Title: co -Manager and authorized signatory
CRA:
SOUTHEAST OVERTOWN / PARK WEST
COMMUNITY REDEVELOPMENT AGEN
By:
Cl
AT ! ST:
e E. +oods, III., Executive Director
le Board -P-4{ I5
Approved for legal sufficiency
By : e4.);
William R. Bloom, Esq.
IIolland & Knight LLP,
Special Counsel to CRA.
[NOTARY ACKNOWLEDGEMENTS ON FOLLOWING PAGES]
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
) SS:
)
The foregoing instrument was acknowledged before me, this 2` day , 2015, by Michael
Simkins, co -Manager and authorized signatory of MIAMI BIG BLOCK, LLC, a Florida limited liability company,
on behalf of the limited liability company. He/she is personally ow to me or has produced
as identification. -
ANDREA SMITH
NOTARY PUBLIC
STATE OF FLORIDA
Comm# FF150988
Expires 111151201 8
My commission expires:
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
)
) SS:
)
Notary Public
At13,e-8-A9-S� r v
Print Name:
f The foregoing instrument was acknowledged before me, this day of 1,t,�„ 2015,pby
, L1 „The
co-Manager and authorized signatory of MIAMI BIG BLOCK, LLC, a Florida limited liability
company, sole Member and Manager of MANAGING ENTITY, LLC, a Florida limited liability company, Manager
of NW lst Avenue and 10th Street, LLC, Florida limited liability company , on behalf of the limited liability
company. He/she is personally known to me or has produced as identification.
hR ANDREA SMITH
NOTARY PUBLIC
STATE OF FLORIDA
Comm# FF150988
Expires 11/15/22018
My commission expires:
STATE OF FLORIDA
) SS:
COUNTY OF MIAMI-DADE
Notary Public
Print Name:
r The 1 foregoing instrument was acknowledged before me, this clay ofch.�- 2015, by.
p� ,�
Y °'LIC CIef 03'41IXIA j, co -Manager and authorized signatory of MIAMI BIG BLOCK, LLC, a Florida limited liability
company, sole Member and Manager of MANAGING ENTITY, LLC, a Florida limited liability company, Manager
of 59 NW 10t11 Street, LLC, Florida limited liability company , on behalf of the limited liability company. He/she is
persona ly o me or has produced as identification.
Expires 11115/2018
My commission expires:
ANDREA SMITH
NOTARY PUBLIC
STATE OF FLORIDA
Commit FF150988
fr
Notary Public
Print Name:
25
STATE OF FLORIDA
) SS:
COUNTY OF MIAMI-DADE
t The foregoing instrument was acknowledged before me, this day of �e,w►. ? , 2015, by
�1 Gi aM.Ceit,5co-Manager and authorized signatory of MIAMI BIG BLOCK, LLC, a Florida limited liability
company, sole Member and Manager of MANAGING ENTITY, LLC, a Florida limited liability company, Manager
of 41 NW 10 Street, LLC, Florida limited liability company , on behalf of the limited liability company. He/she is
personally mown o me or has produced
ANDREA SMITH
NOTARY PUBLIC
STATE OF FLORIDA
Comm# FF150988
Expires 11/15/201a
My commission expires:
STATE OF FLORIDA
COUNTY OF MIAMI-.DADE
)
) SS:
)
Notary Public
rint Name:
as identification.
S1r`
The foregoing instrument was acknowledged before me, this 9,e day ofVw-C.-, 2015, by Clarence
E. Woods, III, Executive Director of SOUTHEAST OVERTOWN/PARK WEST COMMUNITY
REDEVELOPMENT AGENCY, a public agenc and body corporate created pursuant to Section 163.356, Florida
Statutes, on behalf of the agency. He/she i ersonally mown o me or has produced
as identification.
ANDREA SMITH
NOTARY PUBLIC
STATE OF FLORIDA
Comm# FF150986
Expires 11/15/2016
My commission expires:
Notary Public
,pIer'w , 5; 4 r !
Print Name:
26
EXHIBIT A
Legal Description
Lots 13, 14, 15, the South 125 feet of Lot 16, Lot 17 less North 15 feet thereof and Lot 18, less
the North 15 feet thereof and Lot 19 less the North 15 feet thereof. Block 17, NORTH, CITY OF
MIAMI, according to the Plat thereof, as recorded in Plat Book "B", at Page 41 of the Public
Records of Miami -Dade County, Florida,
Folio Numbers 01-0101-070.1070
01-0101-070-1080
01-0101-070-1090
01-0101-070-1100
01-0101-070-1110
,AXEIBrr B
Preliminary Plans dated March 19, 2014
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MIAMI INNOVATION TOWER DESCRIPTION
The purpose of the MIAMI INNOVATIONTOWER I"M1Ti is to deliver a world -class Icon that fuses and integrates digital technologies and lighting refectiveof the
Information and Digital Age. By creating a signature design, the tower odI become adistinctive beacon that is Miami'sown, The world writ identify the &UTwith
Miami and the information and Digital Age similar to how the Ardi,Space Needle and EVfelTower are inextricably part of their respective gateway dties
Identities currenttyand In their respective ages of development (Arch In St. Louis and Space Needlein Seattle during the Space Age; Eiffel Tower in Parts during
the Indusrrial Age).The dear distinction between the Miami Innovelon Tower and other iconic stnrctureswtf be the used terhnotogies that are cellar -made for
a society driven by imagery and realdime Informatleo.whlle hermont£arg with the lowers form and function -The tower wilt be a communications vector that
captures the importance of the City. the magnitude of its progression to a world-dassrnetropolls, and emphasizing itsstatus as a gateway and hub to the
Americas, all at a location that formes the downtown core and horrorsOvertownfPark West as a dstinct neighborhood with rich history rooted inCulturriThe
entbe building from exterior to Interior will utillxestate-of-theart digital and interactive technologies, and that tech no logy be used to tell the story of Miami
and ofOvenown
The building Is designed with taw distinct features: a tower unlike any building in Miami's skyline and a hovering base that unifies the Entertainment Disttkt
and OvertownlParkWesl. Designedas kinetic sculpture, the Miami tnnavationTower isdynaml. evoking movement throughout, Emerg[hg from an active base
wrlh public gathering spaces and interval exhibition and media fad?Ities that blend pedestifaraxaied, distinctive architecture with patterns and textures rooted
In the neighborhood vernacular, the -three sides sweep up imoa twisting, rotating tower of monumental proportion and deslgn.Themedia components
complement and enhance this movement, visually unifying tower and bole with digital tedinoksgies and synchronized lighting -rise display areas at the tower
Fever are conflgured to fit within the comsat of the tower's sides, displaying slowly rotating digital content while the base wifl be designed to support the
connection with the neighborhood and visitors to the site. featuring more cinema -graphic content and Pghting and digital Interactivity reflective of the
neighborhood's need for urban place making and community oathering.
Featuring transparent media facades that are resilient to the harsh South Florida Ornate and leading sustainable energy design. the Mfrs digital displayswi9
have a total of8s,750 SF of digitaldisplay technologies with a total of 79,7805F of display area across all three of the tower faces (Displays 1.2. and 3} and 4,970
SF on a wrap -around display at the lower pedestrian level (Displays 4 and 5). collectively, the displays and tower designwill serve as the premier digaat media
experience in Mlaml South Florida and the world.
DISPLAY 2
2521. rRtn FACADE
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NE AXONOMETRIC VIEW
DISPLAY 3
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MIAMI
INNOVATION
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TOTAL OF ALL DISPLAYS:
84,7.50 SF
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MIAMI
INNOVATION
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TOTAL OF ALL C) SFLAYS:
64.756 SF
MANIFACTURER' G"A
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MIAMI
INNOVATION
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TOTAL OF ALL DISPLAYS:
84.750 SF
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TOWER
SHEET NOTES
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TOTAL OF ALL DISPLAYS:
84.750 SF
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STRUCTURAL CONCEPT APPROACH NARRATIVE
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The Miami Innovation Tower will be 633 feet high tower and will need towilh$landhurri-
Cane wimis The basic structural concept consists ofa'Yshaped shear wen core. Each Feg
of the 'Y'shaped core is abut 350.61n from She center of then- alThe base with mink,
the legs of the-Y :The outer dimcrate n of the stair shaft is about 201t 5 in from the center
of the'Y'whh a hollow slyer column beyond the stair shalt about 7feet wide to make
the outer dimension of the-71eg a 35ft bin dimension at the base and tapering to28ft
6in at the top of thetowcr.The apoecolmate width of each leg of the core is about 21 feet
as presently planned. The inside carnerittl each'Y"legs are filleted together bya radius
to creates concave configured:m.The final thickness of the walls of the peismatier
shaped core will be dependent on the wind tunnel resultsand detailed strrtcturat analy-
sis- tt is anticipated that mncreeecore will be post -tensioned to %Sly activatethe concrete
thereby iedodro the thickness of the shear wafts and Increasing the dynamic properties
of the strvcture,The need fora tuned matt damper (77.101 at the top of the tower to in-
crease occupants comfort w13 be dependent on the wind tunnel results and structure/
ana ysls. It will bee tradeoff of extra material versus the cost of a T3.1D.
The anticipated design st1HRurai wired pressure at the top of the tower will be about
176p1t based on the present code.Thewind pressure wit be a maaimttrir at the topof the
tower and reducing hiangularlyto about50asf at the boson, wind tunnel will be needed
to determine theeclual pressures with the porosity of the media YeirSaif"modeled.The
core will be supported an a pile supported concrete mat —the thickness of which will be
determined based on structural analysisand the pies to be used based on geolechnical
recommendations.
The sttt._tura1 approach to support the media wan 'sail' istecreate a series of horizontal
,matures at about 15 feet on center vertkally.The width of each one of these horizontal'
am, enures on a given level Is about I00 feeLThrec horizontal amateurs will be rreeded at
each level which are rotated around the tenttel-1'Shape cnre.nm hodzantalannatures
volt have; gap between each of the armatures that varies From 20 Feet al the base to 10
feet at thetap.Tlle local wind pressures on the media wall will be greater than those on
the overall structure -the fatcrallwd born theft ho,lzantel ermetteS5131ratlert iedto
the centrat'Y"shaped am by radial spokes from liter core to the horizontal al,
autumn* distance between the horizantat spokesel the armature will be about 75 Feet.
The gravity load of the media wail will be hung to support framing el elevations about
120 feet above grade, and 240 feet above grade and ).rem support Plalforrn3 at Level
lialand 373Ft above grade) and Level6 CaMout5531tabove gradel.0erausethe hung hoc.
hnntal armatures ere rotating Around ih06'shaped core, the Imager torts fue.sag rods)
will' be tilted and s3aCed 15 feet on renter and well inducehoriz ettel!erresin thecae..
imes and support framing ihat wifl be resisted byhorleontOl bracing,
Another major slmctureissue of the I.tfaml InntwaUanTower is how fa support the aau-
pled cantilever pods. There am two groups of cord levet pods, erne atTower level PO (ele-
vation 373 obese grade). and a second cantilever pod at newer level n51553 ;hove
grade). There are he,, platforms In the lower pod and Four platforms in the higher pod.The
highest leveI of the lowest pod Is 445 feet above grade and highest level at the upper pod
is598 feet abieve grade. Selow the tower platform fneach pad there will be3 aneatory
deep (15Ft1 trusses spanning tip to tipaf the'Y'shaped tort (about 53 feet) forming a
chambered corner equilateral biangte to pier. From these trusser,. perpendbuler tosses
will span lmm the'Y'shaped core through these tosses and out to theperimeter of the
pod The levels abm+e the tensor each pod, teve3s 1 thru 5Ir the lower pod and Levels 7
thru 9In the upper pod. will be posted down to these transfer tom platforms at Levels00
and 06.71,e perimeter posts similar lolhe hanger rods will be tilted because the floors wilt
aims rotate around the cores and the floor diaphragms and bracing will resolve this twist-
ing action.
The reselling Miami1nnowttlon Tower win be a struturarfour de Force with a unique
visual twisting tower which In reality at its core is a prismatic symmetricstructure.This
structural approach was successfully developed by Thomtoniornaseltf on the super Nil
Shanghai Tovrer that recently topped out.
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SHEET NOTES
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TOTAL OF ALL DISPLAYS:
84,750 5F
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JOINDERS
JOINDER
The undersigned joins in this Covenant to subordinate the lien of that certain Purchaser
Money Mortgage, Assignment of Rents and Security Agreement (the "Mortgage") from NW Pt
AVENUE AND 10il1 STREET, LLC, a Florida limited liability company in favor of 67 N.W. 10TH
STREET, LLC, a Florida limited liability company, which was recorded June 18, 2013 in
Official Records Book 28688, at Page 2925 of the Public Records of Miami -Dade County,
Florida, to all of the terms and provisions of this Covenant, to the same extent as if this Covenant
was recorded prior to the Mortgage.
67 N.W. 1011 STREET, LLC, a Florida
limited lia ilit co pa
By:
Name:
Title:
STATE OF FLORIDA )
) SS:
COUNTY OF MIAMI-DARE )
The foregoing instrument was acknowledged before me, this ®fi ay of December, 2014, by
David /i , ilk-r& .& of 67 N.W. 10'" STREET, LLC, a Florida limited liability company,
on behalf of the limited liability comny. He/she is personalty known to me or has produced
as identification.
Notary Public
My commission expires: tie, r ! S, Z-r'1
Print Name:
Aigk ,y11111i1///
KAtlffiN HOLMES LLEHA
% Naolry Public o Stets of Florida
kly Comm. l:upirpa Apr 5, 2015
I 'atr' Car¢ olosiora # LE 09554
hill,
6 47 lik9 -
JOINDER
The undersigned joins in this Covenant to subordinate the lien of that certain Mortgage
(ihe "Mortgage") from 41 NW 10 STREET, LLC, a Florida limited liability company in favor of
LION FINANCIAL, LLC, a Florida limited liability company, dated September 30, 2013 and
recorded in Official Records Book 28848, at Page 3350 of the Public Records of Miami -Dade
County, Florida, to all of the terms and provisions of this Covenant, to the same extent as if this
Covenant was recorded prior to the Mortgage.
LION FINANCIAL, LLC, a Florida
limited liability company
By:
Name: fk . J Sr A.i,„)
Title: ,mot-,
STATE OF FLORIDA )
) SS:
COUNTY OF MIAMI-DARE )
The foregoing instrument was acknowledged before me, this be' day of December, 2014, by
Hick:. ( , of LION FINANCIAL, LLC, a Florida limited liability company, on
behalf of the limited liability company. He/she is personally known to me or has produced
as identification.
ANCREA SMITH
NOTARY PUBLIC
STATE OF FLQRIDA
Comm# FF150988
Expires 11/15/2018
My commission expires:
Notary Public
/q/e 544
Print Name: