HomeMy WebLinkAboutExhibit 1DEVELOPMENT AGREEMENT BETWEEN
CITY OF MIAMI, FLORIDA AND SWIRE
PROPERTIES, REGARDING DEVELOPMENT
OF THE BRICKELL CITICENTRE PROJECT
THIS, AGREEMENT is entered this day of July, 2011, by and between Swire
Properties, Inc., a Florida for profit corporation ("Swire"), and the CITY OF MIAMI,
FLORIDA, a municipal corporation and a political subdivision of the State of Florida ("City")
(Swire and the City together referred to as the "Parties").
WITNESSETH:
WHEREAS, Swire holds fee simple title to 9.03 acres of property in the Brickell area of
downtown Miami,
WHEREAS, the prope is more specifically located south of the Miami River, west of
Brickell Avenue, north of SW S` Street and east of NW l st Avenue (the "Property"; sketch and
legal descriptions of which are attached as Exhibit "A");
WHEREAS, the Property spans four city blocks and is located between two mass transit
routes;
WHEREAS, the Property is currently underutilized in that it predominantly consists of
vacant, undeveloped lots secured by chain link fencing;
WHEREAS, the current status of the Property is inconsistent with the City's vision to
develop a world class downtown, and the City wishes to encourage redevelopment of the
Property;
WHEREAS, Swire wishes to redevelop the Property into a high -density, mixed -use,
pedestrian oriented, urban development known as Brickell CitiCentre which will provide much
needed retail for the Brickell and Downtown area of Miami (the "Project");
WHEREAS, in order to maximize efficiency and design of Brickell CitiCentre, Swire
desires to construct two levels of underground parking;
WHEREAS, a process exists within the City's zoning code ("Miami 21") which allows
parcels of more than nine abutting acres to be master planned to allow greater integration of
public improvements and infrastructure, and greater flexibility so as to result in higher or
specialized quality building and streetscape design;
WHEREAS, the result of this master planning process is known as a "Special Area Plan"
or "SAP;
WHEREAS, Miami 21 requires development within an SAP to be governed by a
Development Agreement between the property owner and the City;
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WHEREAS, the City and Swire wish to rezone the Property from T6-48B-0 to Brickell
CitiCenter SAP in order to encourage redevelopment of the Property and effectuate the Project;
WHEREAS, this Development Agreement ("Agreement") satisfies the requirement set
forth in Miami 21;
WHEREAS, the City and Swire wish for development of the Project to proceed
substantially in accordance with the Regulating Plan and Design Guidelines attached as Exhibit
"B" ("Regulating Plan and Design Guidelines") and the Conceptual Site Plan attached as
Exhibit "C" ("Conceptual Site Plan");
WHEREAS, the Property is designated Restricted Commercial, with an Urban Central
Business District Overlay, in the Miami Comprehensive Neighborhood Plan (the
"Comprehensive Plan");
WHEREAS, the City and Swire wish for development of the Project to proceed in a
manner which is consistent with the Comprehensive Plan;
WHEREAS, the Project is located in the Downtown Development of Regional Impact
("DDRI");
WHEREAS, as of the Effective Date, the DDRI has sufficient development capacity to
accommodate the Project and Swire has reserved such capacity through appropriate means with
the City;
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;
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 City Commission pursuant to Ordinance No. 11-XX, adopted July XX,.
2011 has authorized the City Manager to execute this Agreement upon the terms and conditions
as set forth below, and the Boards of Directors have authorized Swire to execute this Agreement
upon the terms and conditions set forth below;
NOW THEREFORE, in consideration of the mutual covenants and agreements
hereinafter contained, the parties mutually agree and bind themselves as set forth herein:
Section 1. Consideration. The Parties hereby agree that the consideration and obligations
recited and provided for under this Agreement constitute substantial benefits to both parties and
thus adequate consideration for this Agreement.
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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;
(c) A pronoun in one gender includes and applies to other genders as well;
(d) The terms "hereunder", "herein", "hereof, "hereto" and such similar terms shall
refer to the instant Agreement in its entirety and not to individual sections or
articles;
(e) The Parties hereto agree that this Agreement shall not be more strictly construed
against either the City or Swire, 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. Capitalized terms which are not specifically defined herein shall
have the meaning given in Miami 21.
"Agreement" means this Agreement between the City and Swire.
"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 known as the Miami
Comprehensive Neighborhood Plan, adopted by the City pursuant to Chapter 163,
Florida Statutes (2010), meeting the requirements of Section 163.3177, Florida
Statutes (2010), Section 163.3178, Florida Statutes (2010) and Section
163.3221(2), Florida Statutes (2010), 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 (2010).
"Effective Date" is the date of recordation of the executed, original version of
this Agreement.
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"Existing Zoning" is (a) Miami 21 Code, January 2011, specifically including
the Brickell CitiCentre SAP, 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.
"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.
"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 Agreement is for the City to authorize Swire to
develop the Project pursuant to the Brickell CitiCentre SAP. This Agreement will freeze, as of
the Effective Date, the land development regulations which will govern development of the
Project, thereby providing the Parties with additional certainty during the development process.
This Agreement also satisfies Section 3.9.1.f., Miami 21.
Section 5. Intent. Swire and the City intend for this Agreement to be construed and
implemented so as to effectuate the purpose of the Brickell CitiCentre SAP, this Development
Agreement, the Comprehensive Plan and the Florida Local Government Development
Agreement Act, Section 163.3220 - 163.3243, Florida Statutes (2010).
Section 6. Applicability. This Agreement only applies to the Project.
Section 7. Term of Agreement, Effective Date and Binding Effect. This Agreement shall
have a term of thirty (30) years from the Effective Date and shall be recorded in the public
records of Miami -Dade County and filed with the City Clerk. The term of this Agreement may
be extended by mutual consent of the Parties subject to a public hearing, pursuant to Section
163.3225, Florida Statutes (2010). This Agreement shall become effective on the Effective Date
and shall constitute a covenant running with the land that shall be binding upon, and inure to, the
benefit of the parties, their successors, assigns, heirs, legal representatives, and personal
representatives.
Section 8. Permitted Development Uses and Building Intensities.
(a) Brickell CitiCentre SAP Designation. The City has designated the Property as
Brickell CitiCentre SAP on the official zoning Atlas of the City, pursuant to the
applicable procedures in Miami 21. The Brickell CitiCentre Regulating Plan and
Design Guidelines are attached as Exhibit "C". In approving the Brickell
CitiCentre SAP, the City has determined that the uses, intensities and densities of
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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 Brickell CitiCentre SAP, the
density proposed for the Property is approximately 150 units per acre, and
the intensity proposed for the Property is measured by an above -ground
Floor Lot Ratio of 14 (specifically' excluding underground parking and
circulation).
(2) The non-residential development permitted on the Property includes, but is
not limited to, the following uses: office, hotel, retail, entertainment,
medical office, academic space and any other uses permitted by the
Existing Zoning.
(3)
As of the Effective Date and pursuant to the Brickell CitiCentre SAP, the
maximum height proposed for the Project is 683 feet, and the maximum
height proposed for the Pedestal is 129 feet (Phase I and IA) and 160 feet
(Phase II).
(4) Nothing herein shall prohibit Swire from requesting an increase in the
density or intensity of development permitted on the Property, as long as
such increase in density or intensity is consistent with the Comprehensive
Plan as it exists on the Effective Date.
(c) Environmental. The City finds that the Project will confer a significant net
improvement upon the publicly accessible tree canopy in the area. The City and
Swire agree that Swire will comply with the intent and requirements of Chapter
17 of the City Code by performing tree replacement within 1 mile of the Project,
with an emphasis on 7`h Street, 8th Street and South Miami Avenue. City agrees
to facilitate the permitting and planting of replacement trees on all publicly owned
property in this area.
(d) Archaeological. Because of the Projects location in a high probability
archaeological zone, the City will require Swire to obtain a certificate to dig prior
to any ground disturbing activities. However, in no case shall the City require
archaeological monitoring after soil/tree removal (ie, during excavation of the
limestone bedrock).
(e)
Signage. The Project's location within the center of the City's Urban Core provide
an opportunity to incorporate signage, including the display of art or graphics
with oi- without commercial messages, in a fashion that will aesthetically enhance
the view corridors along the major County and state arterials bounding the Project
site.
(1) Geographical area. Notwithstanding the definition of Geographical area
in Sec. 62-602 of the City code and the boundaries depicted in the Mural
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area described in Exhibit "A" to Mural ordinance (File ID 10-01249),
adopted on January 13, 2011, the City hereby authorizes the issuance of a
Mural Permit(s) authorizing the erection, placement, posting, painting,
display, maintenance, or hanging of Murals on a Wall located on the
Property designated as part of the Project SAP.
(2) Spacing between murals and number of murals permitted per building.
Murals located on Walls within the Project SAP shall not be subject to
spacing limitations set forth in Sec. 62-606(3) of the City code.
Notwithstanding the language of Sec. 62-606(3), multiple murals may be
located on the same side of the building.
(3)
Mural size. Murals shall be allowed to cover up to eighty percent (80%)
of the Wall, or thirty-three percent (33%) of the Wall if the Mural covers
windows. Murals on the same Wall, either individually or in aggregate,
shall not exceed:
a. Project West Block, West Elevation Pedestal — 10,000 sq. ft.
b. Project North Block, East Elevation Pedestal — 10,500 sq. ft.
c. Project East Block, East Elevation Pedestal — 12,500 sq. ft.
d. Project East Block, South Elevation Pedestal — 4,000 sq. ft.
e. Project West Block, South Elevation Pedestal — 4,000 sq. ft.
f. Project East Block, North Elevation Pedestal — 6,500 sq. ft.
g. Project West Block, North Elevation Pedestal — 4,500 sq. ft.
Where a conflict exists between the Outdoor Advertising Zone Signage
Area dimensions specified on Pages A2.31, A2.32, A2.35, and.A2.37 of
the Project SAP Regulating Plan, the maximum dimensions specified in
this subsection shall control.
Section 9. Connectivity and Activity within Public Right -of -Way.
(a) Connectivity. A critical element to the success of the Project is above grade and
below grade connectivity between blocks and through public rights -of -way. This
connectivity should be encouraged both within the Project and between the
Project and Abutting property. This connectivity will result in ease of access,
minimized pedestrian and vehicular conflicts, and reduction of the Project's traffic
impacts by permitting internalized traffic circulation. In order to activate the
above grade connections, Swire proposes to locate commercial activity in this
area.
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Swire recognizes that such connectivity and commercial usage may require
approval of other governmental agencies such as Miami -Dade County and the
Florida Department of Transportation. The City finds and determines that
establishing such connectivity and commercial usage serves a public purpose, and
City agrees to support Swire's efforts to obtain any authorization to establish such
connectivity and commercial usage.
The City finds that the authorization of such uses within the public right-of-way
will have no adverse effect(s) on the provision of natural light, circulation of air,
or increase the adverse effects resulting from fire, floods, tornadoes, and
hurricanes. It is further found that the presence of such uses within the right-of-
way shall in no way diminish access for firefighting apparatus or rescue and
salvage operations; diminish traffic, transportation and circulation; or adversely
impact the advancement of the safety, health, amenity and general welfare within
the City.
Given the public benefits conferred upon the City by the above -grade and below -
grade connectivity between blocks and across the public rights -of -way, the
provisions of Sec. 54-186 shall not apply within the Brickell CitiCentre SAP.
(b) Construction of encroachments within the Public Right -of -Way. The City finds
that the proposed encroachment does not unduly restrict the use of the public
right-of-way and is a necessary essential element in the construction of the
pedestrian walkways above the public rights -of -way and vehicular underpasses
below the same rights -of -way. The adoption of this Agreement shall serve to
satisfy the requirements set forth in Sec. 55-14(b) of the City Code.
Notwithstanding the requirements of Sec. 55-14(c) of the City Code, the City
agrees to waive any and all claims to payment of a user fee in connection with the
construction of the aforementioned encroachments into the public rights -of -way.
Further, this Agreement shall satisfy the requirements of Sec. 55-14(d) of the City
Code. In consideration for authorizing the construction of the aforementioned
encroachments, Swire further covenants to:
(1) Maintain the above -grade pedestrian walkways and below -grade vehicular
underpasses in accordance with the Florida Building Code and the City
Charter and Code.
(2) Provide an insurance policy, in an amount determined by the city's risk
manager, naming the city as an additional insured for public liability and
property damage. The insurance shall remain in effect for as long as the
encroachment(s) exist in the right-of-way. Should Swire fail to continue
to provide the insurance coverage, the City shall have the right to secure
similar insurance policy in its name and place a special assessment lien
against the owner's abutting private property for the total cost of the
premium.
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(c)
(3)
Swire shall hold harmless and indemnify the City, its officials and
employees from any claims for damage or loss to property and injury to
persons of any nature whatsoever arising out of the use, construction,
maintenance or removal of the pedestrian walkways and vehicular
underpasses and from and against any claims which may arise out of the
granting of permission for the encroachment or any activity performed
under the terms of this Agreement.
Activity within the Public Right -of -Way. Notwithstanding the limitations set
forth in Sec. 54-186 of the City Code, the City shall permit Food Service
Establishment(s) and/or General Commercial uses, as defined in Miami 21, in the
above -grade pedestrian walkways located within the public right-of-way,
following approval by SAP Warrant.
Section 10. Project Approval.
(a) Future Development Review. Future development within the Brickell CitiCentre
SAP shall proceed pursuant to the process established in the Brickell CitiCentre
Regulating Plan and Design Guidelines, attached as Exhibit "C". The criteria to
be used in determining whether future development shall be approved is
consistency with the Comprehensive Plan, this Agreement and the Brickell
CitiCentre SAP.
(b) Prohibition on Downzoning.
(1)
The Comprehensive Plan, this Agreement and the Brickell CitiCentre SAP
shall govern development of the Property for the duration of the
Agreement. The City's laws and policies adopted after the Effective Date
may be applied to the Property only if the determinations required by
Section 163.3233(2), Florida Statutes (2010) have been made after 30 days
written notice to Swire and at a public hearing.
(2) Pursuant to Section 163.3233(3), Florida Statutes (2010), this prohibition
on downzoning supplements, rather than supplants, any rights that may
vest to Swire under Florida or Federal law. As a result, Swire may
challenge any subsequently adopted changes to land development
regulations 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 (2010).
(c) Development of Regional Impact.
(1) City and Swire agree that as of the Effective Date, sufficient capacity
remains under the DDRI to accommodate the Project and that Swire has
reserved the capacity necessary to develop the Project.
(2) City agrees that any DRI development order which the City adopts after
the Effective Date and which applies to the Property will (i) be consistent
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with this Agreement and the BrickellCitiCentre SAP, (ii) 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.
Section 11. Retail Specialty Center Designation. Pursuant to Chapter 4 of the City Code,
each block of the four block Brickell CitiCentre Property is designated as a retail specialty
center.
Section 12. Job Creation. Swire shall consult with local and/or state economic development
entities regarding job training and job placement services to city residents seeking employment
opportunities with potential employers which will locate or establish business within the Project.
Section 13. Local Development Permits.
(a) The development of the Property in accordance with the Existing Zoning is
contemplated by Swire. 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, including acting as an applicant. Such approvals include, without
limitation, the following approvals and permits and any successor or analogous
approvals and permits:
(1) Subdivision plat and/or waiver of plat approvals;
(2) Covenant or Unity of Title acceptance or the release of existing unities or
covenants;
(3)
(4)
(5)
(6)
(7)
Building permits;
Certificates of use and/or occupancy;
Stormwater Permits;
Development of Regional Impact approval, modification or exemption;
and
Any other official action of the City, County, or any other government
agency having the effect of permitting development of the Property.
(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 Property 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.
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Section 14. Consistency with Comprehensive Plan. The City finds that development of the
Property in conformity with the Existing Zoning is consistent with the Comprehensive Plan. As
of the Effective Date, Swire is 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 Swire to provide additional Public Facilities to accommodate the Project, Swire will
provide such Public Facilities consistent with the timing requirements of Section 163.3180,
Florida Statutes (2010). Swire shall be bound by the City impact fees and assessments in
existence as of the Effective Date of this Agreement.
Section 15. Necessity of Complying with Local Regulations Relative to Development
Permits. Swire 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
Swire of the necessity of complying with the regulation governing said permitting requirements,
conditions, fees, terms, licenses, or restrictions.
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 Property 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 Property in a manner consistent with (a) the
Existing Zoning and/or the Comprehensive Plan, (b) any zoning change
subsequently requested or initiated by Swire 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 Swire or its successors or
assigns to continue development of the Property in conformity with Existing
Zoning and all prior and subsequent development permits or development orders
granted by the City.
Section 17. Brickell Trolley, Swire acknowledges that the City is currently planning to
develop a trolley system which may traverse or abut the Brickell CitiCentre District. Swire
agrees to cooperate with the City so that any portion of the trolley route which runs through, or
adjacent to, the Brickell CitiCentre District can be accommodated within the dedicated public
rights -of -way. City agrees to evaluate whether at least one northbound and one southbound
trolley stop can be incorporated into the Brickell CitiCentre District.
Section 18. Annual Review.
(a) The City shall review the development that is subject to this Agreement once
every 12 months, commencing 12 months after the Effective Date. The City shall
begin the review process by giving notice to Swire, a minimum of 30 days prior to
the anniversary date of the Agreement, of its intention to undertake the annual
review of this Agreement.
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(b) Any information required of Swire during an annual review shall be limited to
that necessary to determine the extent to which the Developer is proceeding in
good faith to comply with the terms of this Agreement.
(c) If the City finds on the basis of competent substantial evidence that Swire has not
proceeded in good faith to comply with the terms of the Agreement, the City may
terminate or amend this Agreement after providing 30 days written notice to
Swire and at a public hearing.
Section 19. 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 United States Registered or Certified
Mail, return receipt requested, postage prepaid, or by overnight express delivery,
such as Federal Express, to the parties at the addresses listed below. Any notice
given pursuant to this Agreement shall be deemed given when received. Any
actions required to be taken hereunder which fall on Saturday, Sunday, or United
States legal holidays shall be deemed to be performed timely when taken on the
succeeding day thereafter which shall not be a Saturday, Sunday or legal holiday.
To the City:
City Manager
City of Miami
3500 Pan American Drive
Miami, FL 33133
With a copy to:
City Attorney
Miami Riverside Center
444 S.W. 2nd Ave., 9th Floor
Miami, FL 33130
To Swire:
Stephen Owens
501 Brickell Key Drive, Suite 600
Miami, FL 33131
With copies to:
Akerman Senterfitt
Attn: Neisen Kasdin
1 SE 3`d Avenue, 25th Floor
Miami, FL 33131
(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.
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Section 20. 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 Swire shall each
have the right to specific performance of this Agreement in court. Each party shall bear its own
attorney's fccs. 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 21. Voluntary Compliance. Swire 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,
Swire and the City shall continue to honor the terms and conditions of this Agreement to the
extent allowed by law.
Section 22. 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 23. Compliance with Applicable Law. Subject to the terms and conditions of this
Agreement, throughout the Term of this Agreement, Swire 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.
Section 24. 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 25. 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 26. 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
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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.
Section 27. Events of Default.
(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) The City shall be in default under this Agreement if the City fails to perform or
breaches any term, covenant, or condition of this Agreement and such failure is
not cured within thirty (30) days after receipt of written notice from 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.
Section 28. 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, Swire and the City agree that any party may seek
specific performance of this Agreement, and that seeking specific performance
shall not waive any right of such party to also seek monetary damages, injunctive
relief, or any other relief other than termination of this Agreement. The City
hereby acknowledges that any claim for damages under this Agreement is not
limited by sovereign immunity or similar limitation of liability.
Section 29. 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
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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 30. Assignment and Transfer. This Agreement shall be binding on Swire and its
heirs, successors and assigns, including the successor to or assignee of any Property Interest.
Swire, 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. Any such
assignee shall assume all applicable rights and obligations under this Agreement.
Section 31. Obligations Surviving Termination Hereof. Notwithstanding and prevailing over
any contrary term or provision contained herein, in the event of any lawful termination of this
Agreement, the following obligations shall survive such termination and continue in full force
and effect until the expiration of a one 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.
Section 32. Lack of Agency Relationship. Nothing contained herein shall be construed as
establishing an agency relationship between the City and Swire and neither Swire 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 Swire or its subsidiaries, divisions or affiliates.
Section 33. Cooperation; Expedited Permitting and Time is of the Essence.
(a) The Parties agree to cooperate with each other to the full extent practicable
pursuant to the terms and conditions of this Agreement. The Parties agree that
time is of the essence in all aspects of their respective and mutual responsibilities
pursuant to this Agreement. The City shall use its best efforts to expedite the
permitting and approval process in an effort to assist Swire in achieving its
development and construction milestones. The City will accommodate requests
from Swire's general contractor and subcontractors for review of phased or
multiple permitting packages, such as those for excavation, site work and
foundations, building shell, core, and interiors. In addition, the City will
designate an individual within the City Manager's office who will have a primary
(though not exclusive) duty to serve as the City's point of contact and liaison with
Swire in order to facilitate expediting the processing and issuance of all permit
and license applications and approvals across all of the various departments and
offices of the City which have the authority or right to review and approve all
applications for such permits and licenses.
(b) Notwithstanding the foregoing, the . City shall not be obligated to issue
development permits to the extent a Developer Party does not comply with the
iM30G3340;1 j 14
applicable requirements of the Existing Zoning, the Comprehensive Plan, this
Agreement and applicable building codes.
Section 34. Enforcement.
(a) In the event that Swire, 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 35. Amendment or Termination by Mutual Consent. This Agreement may not be
amended or terminated during its term except by mutual agreement of Swire and the City. Prior
to any amendment or termination of this Agreement during its term, the City shall hold two
public hearings to consider and deliberate such amendment or termination.
Section 36. Third Party Defense. City and Swire shall each, at their own cost and expense,
vigorously defend any claims, suits or demands brought against them by third parties challenging
the Agreement or the Project, or objecting to any aspect thereof, including, without limitation, (i)
a consistency challenge pursuant to Section 163.3215, Florida Statutes (2010), (ii) a petition for
writ of certiorari, (iv) an action for declaratory judgment, or (iv) any claims for loss, damage,
liability, or expense (including reasonable attorneys' fees). City and Swire 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 37. No Conflict of Interest. Swire agrees to comply with Section 2-612 of the City
Code as of the Effective Date, with respect to conflicts of interest.
Section 38. No Third -Party Beneficiary. No persons or entities other than Swire and the City,
their heirs, permitted successors and assigns, shall have any rights whatsoever under this
Agreement.
Section 39. Counterparts. This Agreement may be executed in two 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 Swire have caused this Agreement to be duly executed.
[Signature blocks for City and Swire]
j M3063340; I } 15
SWIRE PROPERTIES, INC, a Florida for profit corporation
BY:
Name:
Title:
{ M3063340;1 } 16
CITY OF MIAMI, FLORIDA
BY:
Name:
Title:
{ M3063340;1 } 17
Exhibit "A"
Legal Descriptions of the Property
1 M3063340; I } 18
Exhibit "B"
Conceptual Site Plan
{M3063340;1 } 19
Exhibit "C"
Brickell CitiCentre Regulating Plan and Design Guidelines
}M3063340;I} 20
Exhibit "D"
Tree Preservation and Mitigation Plan
1M3063340; I } 21