HomeMy WebLinkAboutTAB A.13 Proposed Development AgreementDEVELOPMENT 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 acrin the Brickell area of
downtown Miami,
WHEREAS, the property is more specifica
Brickell Avenue, north of SW 8th Street and east
legal descriptions of which are attached as Exhibit "A
routes;
ocated south of the
1st Av i ue (the "Prop
River, west of
sketch and
WHEREAS, the Property spans four city blocks a ocated between two mass transit
WHEREAS, the Property is curre 'zed in tha predominantly consists of
vacant, undeveloped lots secured by chain li
WHEREAS, th
develop a world cla
Property;
tus of the •perty is i ' onsistent with the City's vision to
and the Ci wishes to encourage redevelopment of the
WHE ' Swire - e Property into a high -density, mixed -use,
pedestrian - t dev. ent kno . s Brickell CitiCentre which will provide much
needed . it for the : and . town area of Miami (the "Project");
o ma ize efficiency and design of Brickell CitiCentre, Swire
desires to c. ct two leve f underground parking;
WHER a proc: . exists within the City's zoning code ("Miami 21") which allows
parcels of more th. ! . •utting acres to be master planned to allow greater integration of
public improvements • infrastructure, and greater flexibility so as to result in higher or
specialized quality bu ding 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 Concept .1 Site Plan attached as
Exhibit "C" ("Conceptual Site Plan");
WHEREAS, the Property is designated Restricted
Business District Overlay, in the Miami Compre
"Comprehensive Plan");
, with an Urban Central
••hborhood Plan (the
WHEREAS, the City and Swire wish for ' 'elopment of the Pro . o proceed in a
manner which is consistent with the Comprehens . n;
WHEREAS, the Project is located in the Do • eve opment of ` egional Impact
("DDRI");
WHEREAS, as of the Effective
accommodate the Project and Swire has re
the City;
evelopment capacity to
h appropriate means with
WHEREAS, the tainty in the ' a.proval of velopment can result in a waste of
economic and land r- rces, s �urage souncapital improvement planning and financing,
escalate the cost o g and velopment, scourage commitment to comprehensive
planning;
W uranc. a deve o i at it may proceed in accordance with existing
laws an olicies, su the . itions of a development agreement, strengthens the public
plan process, enco sou tal improvement planning and financing, assists in
assuring e are adeq . capit facilities for the development, encourages private
participatio omprehensi lammng, and reduces the economic costs of development;
WHER the Cit ommission pursuant to Ordinance No. 11-XX, adopted July XX,
2011 has authorize . Manager to execute this Agreement upon the terms and conditions
as set forth below, an - Boards of Directors have authorized Swire to execute this Agreement
upon the terms and c . ditions 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 defined term has the meaning assigned to it;
Words in the singular include the plural, and words in plural include the singular;
A pronoun in one gender includes and applies to other genders as well;
The terms "hereunder", "herein", "hereof, "hereto" d su similar terms shall
refer to the instant Agreement in its entirety a ► to individual sections or
articles;
(e) The Parties hereto agree that this Agree 1 not be - strictly construed
against either the City or Swire, as all
ies are drafters of t . reement; and
(f) The recitals are true and correct . .. corpo - d into and ma. . part of this
Agreement. The attached exhibits shal e: . - .. opted and i orporated into
the Agreement; provided however, that thi eement shall be deemed to control
in the event of a conflict een the attachm nd this Agreement.
Section 3. Definitions. Capitalized t
have the meaning given in Miami 21.
"Agreement" me, greement b
"City" me
subdivision of
instrumentalities
St
163.
pre
mprehensive
'da Statutes (
(2010), S
), Florida
"County'
Florida.
Miami, a
of Florida,
no
are not spally defined herein shall
en the Ci . nd Swire.
nicipal corporation and a political
all departments, agencies and
ereof.
ans the comprehensive plan known as the Miami
adopted by the City pursuant to Chapter 163,
the requirements of Section 163.3177, Florida
on .3.3178, Florida Statutes (2010) and Section
tutes (2010), which is in effect as of the Effective Date.
ami-Dade County, a political subdivision of the State of
"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 . • land.
"Laws" means all ordinances, resolutions, regulations, co
development regulations, and rules adopted by a loca
development of land.
ehensive plans, land
ent affecting the
"Public Facilities" means major capital impro - . , including, . of limited
to, transportation, sanitary sewer, soli • • aste, drainage, potwater,
educational, parks and recreational, strarking = nd health sys . . nd
facilities.
Section 4. Purpose. The purpose • f this Agreement
develop the Project pursuant to the Bric. itiCentre SAP.
the Effective Date, the land developme . ons which
Project, thereby providing the Parties with • di ' - ainty du
This Agreement also satisfies Section 3.9.1.
Section 5. Intent.
implemented so as t
Agreement, the
Agreement Act, Section
Section 6
Sect'
have a t
records of
be extended b
163.3225, Florid
and shall constitute
benefit of the partie
representatives.
Term of
f thirty (30)
i-Dade Cou
tual cons
utes
the City to authorize Swire to
• Agreement will freeze, as of
ern development of the
the development process.
the City i nd for th. . Agreement to be construed and
purpose of e Brickell CitiCentre SAP, this Development
lan and th- ! :rida Local Government Development
43, Flor . Statutes (2010).
greemen •nly applies to the Project.
ment, ive Date and Binding Effect. This Agreement shall
s fro ' the Effective Date and shall be recorded in the public
and filed with the City Clerk. The term of this Agreement may
of the Parties subject to a public hearing, pursuant to Section
0). This Agreement shall become effective on the Effective Date
nt running with the land that shall be binding upon, and inure to, the
heir successors, assigns, heirs, legal representatives, and personal
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 derground parking and
circulation).
(2) The non-residential development permitt: ' e Property includes, but is
not limited to, the following uses: ce, retail, entertainment,
medical office, academic space .. othe - s permitted by the
Existing Zoning.
(3)
As of the Effective Date a
maximum height proposes for
height proposed for the Pedestal 1
(Phase II).
e Brickell Citi AP, the
83 feet, and t aximum
ase I and IA and 160 feet
(4) Nothing herein sh. t Swire fro - ting an increase in the
density or intensity • de - t permitt • n the Property, as long as
such increase in densi or i o s . stent with the Comprehensive
Plan - xists on the
(c) Envirat the Project will confer a significant net
imp • v- upon -publicly ac , le tree canopy in the area. The City and
Swire agre. +t 1 compl ith the intent and requirements of Chapter
e Cit e tree replacement within 1 mile of the Project,
Street, : th Street and South Miami Avenue. City agrees
d planting of replacement trees on all publicly owned
Because of the Project's location in a high probability
ne, the City will require Swire to obtain a certificate to dig prior
to ' rou disturbing activities. However, in no case shall the City require
archa al monitoring after soil/tree removal (ie, during excavation of the
limesto • edrock).
(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 or 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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Section 9.
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. 62-60 3) of the City code.
Notwithstanding the language of Sec. 62-606 , ltiple murals may be
located on the same side of the building.
(3) Mural size. Murals shall be allowed
of the Wall, or thirty-three percen
windows. Murals on the same
shall not exceed:
a.
b.
c.
d.
the
this s
ctivity
Project West Block, West ' . ion
Project North lock, East Elevat
Project East Bl.
Project East Bloc
est Block,
t Block, No
roject
over . eighty percent (80%)
of the if the Mural covers
ither indivi s or in aggregate,
levation Pe
tal — 10,000 sft.
edestal — 10,500 sq. ft.
2,500 sq. ft.
tal — 4,000 sq. ft.
th Elevati ' Pedestal — 4,000 sq. ft.
El-vation Pedestal — 6,500 sq. ft.
Elevation Pedestal — 4,500 sq. ft.
exists between the Outdoor Advertising Zone Signage
mens cified on Pages A2.31, A2.32, A2.35, and A2.37 of
ct SA ' egulating Plan, the maximum dimensions specified in
ction shall control.
Activity within Public Right -of -Way.
(a) Conne. . A critical element to the success of the Project is above grade and
below , . de 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 naturlight, circulation of air,
or increase the adverse effects resulting from f. ' ods, tornadoes, and
hurricanes. It is further found that the presence o
way shall in no way diminish access for fir
salvage operations; diminish traffic, transpo ion
impact the advancement of the safety, he
the City.
Given the public benefits conferr
grade connectivity between blocks
provisions of Sec. 54-186 shall not apply
ch uses within the right -of -
apparatus or rescue and
anculation; or adversely
nity an. s eral welfare within
by the above- . . nd below-
e public ri ' -of-way, the
the Brickell CitiCentre SAP.
(b) Construction of encroach within the Pu i ' ight-of-Way. The City finds
that the proposed encroac ' - s not undu , t the use of the public
right-of-way and is a nec: ar .1 eleme r in the construction of the
pedestrian walkways above t pu ay and vehicular underpasses
below the « hts-of-way. e adopts • • f this Agreement shall serve to
satisfy t equ is set forth Sec. 55-1- (b) of the City Code.
Not it
agrees to
tion
requirements ec. 55-14(c) of the City Code, the City
laims t' •ayment of a user fee in connection with the
encroachments into the public rights -of -way.
1 satisfy the requirements of Sec. 55-14(d) of the City
r authorizing the construction of the aforementioned
rther covenants to:
the above -grade pedestrian walkways and below -grade vehicular
sses in accordance with the Florida Building Code and the City
er and Code.
(2) 'rovide 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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7
(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.
(c) Activity within the Public Right -of -Way. Notwithst. , ding the limitations set
forth in Sec. 54-186 of the City Code, the City .ermit Food Service
Establishment(s) and/or General Commercial uses defined in Miami 21, in the
above -grade pedestrian walkways located e public right-of-way,
following approval by SAP Warrant.
Section 10. Project Approval.
(a) Future Development Review. Fu
SAP shall proceed pursuant to the pr
Regulating Plan and Design Guidelines,
be used in determinin, whether future
consistency with the C s - ensive Plan,
CitiCentre SAP.
(b) Prohibition on Downzoning.
(1)
t within the B itiCentre
ed in the Bri -11 CitiCentre
d as xhibit "C". The criteria to
lopment shall be approved is
greement and the Brickell
ensive Plan is Agree : - nt and the Brickell CitiCentre SAP
developme of the Property for the duration of the
e City's law ' ' policies adopted after the Effective Date
the Pro r y only if the determinations required by
Statutes (2010) have been made after 30 days
to Swire and at a public hearing.
163.3233(3), Florida Statutes (2010), this prohibition
supplements, rather than supplants, any rights that may
wire under Florida or Federal law. As a result, Swire may
any subsequently adopted changes to land development
ns based on (a) common law principles including, but not limited
uitable estoppel and vested rights, or (b) statutory rights which may
rue 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
entities regarding job training and job placement services to city,
opportunities with potential employers which will locate or est
Section 13. Local Development Permits.
onomic development
idents seeking employment
siness within the Project.
(a) The development of the Property ' - . ccordance with the ing Zoning is
contemplated by Swire. The Proj - . y requi . - additional pe approvals
from the City, County, State, or Fe s . ove ' - nt and any d sion thereof.
Subject to required legal process and ap , the ity shall m e a good faith
effort to take all reaso able steps to co. . to with and facilitate all such
approvals, including acti • an applicant. h approvals include, without
limitation, the following a . nd permits ; ' , successor or analogous
approvals and permits:
(b)
(7)
Subd ' ' s n plat and/or
p
nity of Titl: cceptance or the release of existing unities or
se and/or occupancy;
ent of Regional Impact approval, modification or exemption;
other official action of the City, County, or any other government
ency having the effect of permitting development of the Property.
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 . 've to Development
Permits. Swire and the City agree that the failure of this Ag - . ent to address a particular
permit, condition, fee, term, license, or restriction in effect on ive Date shall not relieve
Swire of the necessity of complying with the regulation gov ing sa - itting requirements,
conditions, fees, terms, licenses, or restrictions.
Section 16. Reservation of Development Rights.
(a) For the term of this Agreement, the
development of the Property in acco
Comprehensive Plan an . e Agreement.
(b) Nothing herein shall pr
development permitted on
Existing Zoning and/or th
subsequentl - ested or in
provisio
(c)
Section 17.
develop a tro
agrees to coopera
adjacent to, the Bri
rights -of -way. City
The x
of, or lim
c) any zoni
ination of th
rights,
rights . uita
conti development
rees that it s 1 permit the
with the Existing Zoning, the
increase i - . ensity or intensity of
in a ma -r consistent with (a) the
n, (b) any zoning change
by in accordance with applicable
change s . sequently enacted by the City.
reement shall not be considered a waiver
cluding, but not limited to, any claims of
obtained or held by Swire or its successors or
of the Property in conformity with Existing
s • Sequent development permits or development orders
Swire acknowledges that the City is currently planning to
may traverse or abut the Brickell CitiCentre District. Swire
ity so that any portion of the trolley route which runs through, or
tiCentre District can be accommodated within the dedicated public
ees 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 m re required to be given
hereunder shall, except as otherwise expr- y pr. - d, be in writing and
delivered by personal service or sent by ni s State •istered or Certified
Mail, return receipt requested, postage • . or by ove express delivery,
such as Federal Express, to the parti .t the addresses listed . . Any notice
given pursuant to this Agreeme
actions required to be taken hereunde
States legal holidays shall be deemed to
succeeding day thereafte which shall not be
To the City:
City Manager
City of Miami
3501 ' merican Dri
133
Ave., 9th oor
wens
ell Key Drive, Suite 600
L 33131
th copies to:
Akerman Senterfitt
Attn: Neisen Kasdin
1 SE 3rd Avenue, 25th Floor
Miami, FL 33131
ed given whe ed. Any
Saturday, Sur , ay, or United
ormed timely when taken on the
urday, Sunday or legal holiday.
(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 fees. Each party waives any defense, whether asserted by
aforementioned courts are an improper or inconvenient venue. Mo
the personal jurisdiction of the aforementioned courts and irrev
said jurisdiction. The parties irrevocably waive any rights to
on or pleading, that the
he parties consent to
ly waive any objections to
Section 21. Voluntary Compliance. Swire and the Ci R r: - that in : - vent all or any part
of this Agreement is struck down by judicial proce' ng • preempted -gislative action,
Swire and the City shall continue to honor the to • . and co ditions of this - e ent to the
extent allowed by law.
Section 22. No Oral Change or Termination.
appendices appended hereto and inco c a ated herein by r
Agreement between the parties with r: to the subject
supersedes any prior agreements or un
subject matter hereof, and no change, modi
be effective unless such change, modificatio
against whom enforceme i - change, mo
cannot be changed or t
Section 23.
Agreement,
applicable
administ
respec
am
Section 24.
Agreement has
legal, valid and bi ' ob ' . Lion of such party, enforceable in accordance with its terms.
between
harge
greement and the exhibits and
ce, if any, constitute the entire
er hereof. This Agreement
ties with respect to the
of in whole or in part shall
riling and signed by the party
arge is sought. This Agreement
licable Law. ' . eject to the terms and conditions of this
nt, Swire and City shall comply with all
, regulations, codes, ordinances, resolutions,
es and procedures and orders that govern or relate to the
ance under this Agreement, all as they may be
Representatives. Each party represents to the others that this
orized, delivered and executed by such party and constitutes the
Section 25. No Ex sive Remedies. No remedy or election given by any provision in this
Agreement shall be • eemed 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
{M3037260;7}
12
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.
Sect.
(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) da s after receipt of written
notice from the City specifying the nature of such bre, , ovided, however, that
if such breach cannot reasonably be cured wi
Developer Party shall not be in default if it com
said thirty (30) day period and diligently pros
thirty (30) days, then a
o cure such breach within
re to completion.
(b) The City shall be in default under this ' - - ' ent if the . ils to perform or
breaches any term, covenant, or co ' on of this Agreement such failure is
not cured within thirty (30) days . ' - ceipt o ritten notice 1 eveloper
Party specifying the nature of such bre . • ro however, tha such breach
cannot reasonably be cured within thirty . ys, the City shall not be in default
if it commences to cur- such breach wit aid thirty (30) day period and
diligently prosecutes such - o completion.
(c) It shall not be a default und thi - . ent if eit party is declared bankrupt
by a court of competent juris • tion. a s obligations in this Agreement
shall surviv- - bankruptcy . er part . e parties hereby forfeit any right
to termi - ement upo . e bankru cy of the other party.
(d) The e . • f any . - veloper Part ' . uccessor or assignee of any portion of a
Developer s i ereunder , all not be deemed a breach by any other
er P. an ssor or assignee of any portion of the rights of
eunder or any other successor or assignee.
(a) either party y terminate this Agreement upon the default of the other party,
of the remedies enumerated herein.
(b) Upo • urrence of a default by a party to this Agreement not cured within
the app . •le grace period, Swire and the City agree that any party may seek
specifi 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
{M3037260;7}
13
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 A eement.
Section 31. Obligations Surviving Termination Hereof. Notw
any contrary term or provision contained herein, in the event
Agreement, the following obligations shall survive such to nati
and effect until the expiration of a one year term follo - e
such termination or the expiration of the Term: (i) e e lusiv
provisions contained herein; (ii) rights of any part . 'sing during
prior to expiration or earlier termination of this < _ ent, an
herein which expressly indicates either that it survive
or may be applicable or effective beyond the expiration
Section 32. Lack of Agency Relatio
establishing an agency relationship bet
employees, agents, contractors, subsidiari
agents, instrumentalities, employees, or con
the City, its contractors, and emplo
employees of Swire or ' u + - s, divisions
anding and prevailing over
awful termination of this
o continue in full force
arlie e effective date of
e ven d choice of law
or attrib - to the period
iii) any other t provision
on or expira ' . n hereof or is
itted early termination hereof.
Nothing contherein shall be construed as
City and S - d neither Swire nor its
affiliates •r guests shall be deemed
r any purpose hereunder, and
deemed contractors, agents, or
Section 33. Coo+er. Exae+ -d Permittin
(a)
p
time is
pursuant t
ermitting a
velopment
Swire's
pe
mu
shall no
affiliates.
ime is of the Essence.
ith each other to the full extent practicable
and cons itions of this Agreement. The Parties agree that
all aspects of their respective and mutual responsibilities
Agre:. t. The City shall use its best efforts to expedite the
pprs .1 process in an effort to assist Swire in achieving its
construction milestones. The City will accommodate requests
neral contractor and subcontractors for review of phased or
fitting packages, such as those for excavation, site work and
foun+ . , building shell, core, and interiors. In addition, the City will
designan 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
{M3037260;7} 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.
Enforcement of this Agreement shall be by action aggt any parties or person
violating, or attempting to violate, any covenants s forth in this Agreement. The
prevailing party in any action or suit pertaining t• , : 'ing out of this Agreement
shall be entitled to recover, in addition to cost d di -ments allowed by law,
such sum as the Court may adjudge to be r• • o ble for -rvices of this/her/its
attorney.
(b)
(c) This enforcement provision shall
law, in equity or both.
Section 35.
any other rem
ailable at
Amendment or Termination by Mutual . i t This Agreement may not be
amended or terminated during its term e
to any amendment or termination of thi
public hearings to consider and deliberate
Section 36. Third Part
vigorously defend any c
the Agreement or the
a consistency chall
writ of certiorari, (iv) an
liability, or e - - - inclu
the other
respon
Section
Code as
Section 38.
t by mutual agr- t of Swire and the City. Prior
ent during i .0 the City shall hold two
s - nt or term ion.
ense. City an - sha , at their own cost and expense,
or demands ought aga t them by third parties challenging
cting to an pect thereof, including, without limitation, (i)
ection 163. Florida Statutes (2010), (ii) a petition for
aratory ju ment, or (iv) any claims for loss, damage,
s' fees). City and Swire shall promptly give
action, inc r ding those that are pending or threatened, and all
esp-ct thereto.
nteres Swire agrees to comply with Section 2-612 of the City
ith respect to conflicts of interest.
eneficiary. No persons or entities other than Swire and the City,
their heirs, permit'. - ssors 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 Swirel
{M3037260;7} 15
SWIRE PROPERTIES, INC, a Florida for profit corporation
BY:
Name:
Title:
1M3037260;7 } 16
CITY OF MIAMI, FLORIDA
BY:
Name:
Title:
{M3037260;7} 17
{M3037260;7} 18
Exhibit "B
Ccjceptual Site Plan
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19
Brickell CitiCentre R
Exhibit "C
ulating Plan and ign Guidelines
{M3037260;7} 20
Exhibit "D
Tree Preservation and Mitiga ' Ian
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21