HomeMy WebLinkAboutDevelopment Agreement and Exhibit AThis instrument Prepared by and
after Recording Return To:
T. Spencer Crowley, Esq.
Akerman Senterfitt
1 SE Third Avenue, 25th Floor
Miami, FL 33131
AMENDED AND RESTATED DEVELOPMENT
AGREEMENT BETWEEN CITY OF MIAMI,
FLORIDA AND BRICKELL CITYCENTRE
PROJECT LLC, REGARDING DEVELOPMENT
OF THE BRICKELL CITYCENTRE PROJECT
THIS AGREEMENT is entered this day of , 2013, by and
between BRICKELL CITYCENTRE PROJECT LLC, 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 10 acres of property in the Brickell area
of downtown Miami,
WHEREAS, the property is more specifically located south of the Miami River,
west of Brickell Avenue, north of SW 8fh Street and east of NW 1st Avenue (the "Property";
sketch and legal descriptions of which are attached as Exhibit "A");
WHEREAS, the Property spans five city blocks and is located between two mass
transit lines;
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 as a higher density, mixed -
use, pedestrian oriented, urban development known as Brickell CityCentre 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 CityCentre, Swire
desires to construct two levels of underground parking;
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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, on July 28, 2011, the City of Miami approved an SAP for the Brickell
CityCentre Project;
WHEREAS, Miami 21 requires development within an SAP to be governed by a
Development Agreement between the property owner and the City;
WHEREAS, on October 24, 2011, Swire recorded a Development Agreement for the
Brickell CityCentre Project;
WHEREAS, Swire recently acquired an additional city block known as "N2",
located between SE 5th Street and SE 6th Street and between South Miami Avenue and SE 1st
Avenue;
WHEREAS, the City and Swire wish to rezone the N2 block from T6-48B-0 to Brickell
CityCenter SAP in order to encourage redevelopment of the Property and effectuate the Project;
WHEREAS, the City and Swire wish to amend the Development Agreement for Brickell
CityCentre to include the N2 block in order to encourage redevelopment of the Property and
effectuate the Project;
WHEREAS, this Amended and Restated Development Agreement ("Agreement")
supersedes the Development Agreement which was recorded on October 24, 2011 and 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");
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");
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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. XXXXX, adopted
March 28, 2013 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.
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
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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.
"Existing Zoning" is (a) Miami 21 Code, January 2011, specifically including
the Brickell CityCentre 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 October 24, 2011 (the date
of recordation of the first Development Agreement for Brickell CityCenter), which
together comprise the effective land development regulations governing
development of the Property as of the date of recordation of the original Development
Agreement.
"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.
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"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 CityCentre SAP. This Agreement will
establish the land development regulations, referred to as the "Existing Zoning" 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 CityCentre 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 CityCentre SAP Designation. The City has designated the
Property as Brickell CityCentre SAP on the official zoning Atlas of the City,
pursuant to the applicable procedures in Miami 21. The Brickell CityCentre
Regulating Plan and Design Guidelines are attached as Exhibit "B". In
approving the Brickell CityCentre SAP, the City has determined that the uses,
intensities and densities of development permitted thereunder are consistent
with the Comprehensive Plan and the Existing Zoning.
(b)
Density, Intensity, Uses and Building Heights.
(1) As of the Effective Date and pursuant to the Brickell CityCentre SAP, the
density proposed for the Property is approximately 120 units per acre, and
the intensity proposed for the Property is measured by an above -ground
Floor Lot Ratio of approximately 13 (specifically excluding
underground parking and circulation).
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(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 CityCentre 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 7th 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 Project's 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 (i.e., during
excavation of the limestone bedrock).
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.
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.
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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
CityCentre SAP.
(b) Construction of encroachments within the Public Right -of -Way. The City finds
that the proposed encroachments do not unduly restrict the use of the public
right-of-way and is a necessary and 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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(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. 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 Permit.
Section 10. Project Approval.
(a) Future Development Review. Future development within the Brickell
CityCentre SAP shall proceed pursuant to the process established in the Brickell
CityCentre 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 CityCentre SAP.
(b) Prohibition on Downzoning.
(1) The Comprehensive Plan, this Agreement and the Brickell CityCentre
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.
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(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 with this Agreement and the BrickellCityCentre 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.
(3)
The City agrees that if the Miami Downtown Development Authority
decides to abandon, terminate, rescind or otherwise render ineffective the
DDRI Development Order, Swire shall no longer be responsible for
payment of DDRI fees. Further, if the Miami Downtown Development
Authority decides to abandon, terminate, rescind or otherwise render
ineffective the DDRI Development Order, the City agrees to refund any
payment of DDRI fees made by Swire within twenty four (24) months
of the decision to abandon, terminate, rescind or otherwise render
ineffective the DDRI Development Order.
Section 11. Retail Specialty Center Designation. Pursuant to Chapter 4 of the City
Code, each block of the five -block Brickell CityCentre 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)
Building permits;
Certificates of use and/or occupancy;
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(5) Stormwater Permits;
(6) Development of Regional Impact approval, modification or exemption;
and
(7) 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.
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
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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 CityCentre District.
Swire agrees to cooperate with the City so that any portion of the trolley route which runs
through, or adjacent to, the Brickell CityCentre 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 CityCentre 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.
(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.
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(b)
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 3rd Avenue, 25th Floor
Miami, FL 33131
Any Party to this Agreement may change its notification address(es) by
providing written notification to the remaining parties pursuant to the terms
and conditions of this section.
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 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.
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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 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) Swire shall be in default under this Agreement if any of the following events
occur and continue beyond the applicable grace period: Swire 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 Swire 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 Swire
specifying the nature of such breach; provided, however, that if such breach
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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 a successor or assignee of any portion of Swire's rights hereunder
shall not be deemed a breach by Swire.
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
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.
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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 Swire does not comply with the 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
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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.
Section 40. Abutting Property Owners. The City and Swire have a mutual interest in ensuring
that construction of the Project proceeds in a manner which is respectful of and sensitive to
owners of property Abutting the Project ("Abutting Owners"). In recognition of this concern,
during construction of the Project Swire agrees to insure Abutting Owners against any actual
damages which directly result from accidental loss of utility service caused by Swire, its
contractors or subcontractors.
NOW, WHEREOF, the City and Swire have caused this Agreement to be duly executed.
[Signature blocks for City and Swire on next page]
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ATTEST: SWIRE PROPERTIES, INC, a Florida for
profit corporation
BY:
Print Name: Print Name
(Corporate Seal) Title:
(Authorized Corporate Officer)
ATTEST: CITY OF MIAMI, a municipal corporation
BY:
Todd Hannon, City Clerk Johnny Martinez, City Manager
APPROVED AS TO FORM AND
CORRECTNESS:
Julie O. Bru
City Attorney
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Exhibit "A"
Legal Descriptions of the Property
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EXHIBIT A
Subject Property Addresses, Folios & Legal Description
Addresses
529 S. Miami Ave.
6 SE 5th St.
5 SE 6th St.
9 SE 6th St.
17 SE 6th St.
23 SE 6th St.
27 SE 6th St.
Folios
01-0210-060-1270
01-0210-060-1280
01-0210-060-1290
01-0210-060-1300
01-0210-060-1310
01-0210-060-1320
01-0210-060-1330
Legal Description
Lots 1 through 7, in Block 108 South, of S.L. & J.B. Patterson and J.F. & B.T. OLIVE
SUBDIVISION, according to the Plat thereof, as recorded in Plat Book B, Page 77, of the Public
Records of Miami -Dade County, Florida; LESS AND EXCEPT that portion of the above
described parcel conveyed by Order of Taking recorded in Official Records Book 11810, Page
2274, of the Public Records of Miami -Dade County, Florida.
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Exhibit "B"
Brickell CityCentre Regulating Plan and Design Guidelines
Original copies of the Brickell CityCentre Regulating Plan and Design Guidelines
are on file and available for public review at the Office of the City Clerk, City of Miami, located at 3500
Pan American Drive, Miami, FL 33133
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