HomeMy WebLinkAboutBack-Up - Executed Development AgreementDEVELOPMENT AGREEMENT BETWEEN
CITY OF MIAMI, FLORIDA AND MIAMI
WORLDCENTER GROUP, LLC REGARDING
DEVELOPMENT OF THE MIAMI WORLD
CENTER PROJECT
THIS AGREEMENT is entered this day of October, 2009, by and between
MIAMI WORLDCENTER GROUP, LLC., a Florida limited liability company ("MWC") and
its undersigned affiliates (collectively the "Developer Parties"), and the CITY OF MIAMI,
FLORIDA, a municipal corporation and a political subdivision of the State of Florida ("City").
WITNESSETH:
WHEREAS, the City wishes to encourage redevelopment of the property bounded by
NE 2116 Avenue on the east, North Miami Avenue on the west, NE 11th Street on the north, and
NE 6th Street on the south ("Miami WorldCenter District");
WHEREAS, the City Commission approved the rezoning of the Miami WorldCenter
District from SD-16.1 to SD-16.3, by approving zoning text changes on August 25, 2008, and a
zoning map change on September 29, 2009;
WHEREAS, Developer Parties hold the fee simple title to certain real property situated
in the Miami WorldCenter District (the "Property" and collectively, as the "Properties"; legal
descriptions of which are attached as Exhibit "A"). The Property only includes land held in fee
simple by the Developer Parties;
WHEREAS, Developer Parties may acquire fee simple title to certain other real property
situated in the Miami WorldCenter District (the "Property Not -Included", legal descriptions of
which are attached as Exhibit "B"). The Property Not -Included is land that is not held in fee
simple by any of the Developer Parties;
WHEREAS, the Developer Parties contemplate constructing within the Miami
WorldCenter District a large, high -density, mixed -use development consisting of multiple
buildings, public open space, enhanced pedestrian areas and access to mass transit, commonly
referred to as the Miami World Center ("Project");
WHEREAS, the beveloper Parties contemplate that the Project will have a site plan,
including open spaces and building layout, substantially in accordance with the Conceptual Site
Plan attached as Exhibit "C" ("Conceptual Site Plan");
WHEREAS, the Developer Parties and the City acknowledge that the Conceptual Site
Plan and each of its elements may only be achieved if the Developer Parties own sufficient
property to make each of the open spaces and buildings both physically and financially feasible;
WHEREAS, the lack of certainty in the approval of development can result in a waste
of economic and land resources, discourage sound capital improvement planning and financing,
escalate the cost of housing and development, and discourage commitment to comprehensive
planning;
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WHEREAS, assurance to a developer that it may proceed in accordance with existing
laws and policies, subject to the conditions of a development agreement, strengthens the public
planning process, encourages sound capital improvement planning and financing, assists in
assuring there are adequate capital facilities for the development, encourages private
participation in comprehensive planning, and reduces the economic costs of development;
WHEREAS, the Property in the Miami WorldCenter District is designated Restricted
Commercial in the Comprehensive Plan, and zoned as SD-16.3 in the Existing Zoning;
WHEREAS, the Property outside the Miami WorldCenter District are zoned various
other designations according to the Existing Zoning;
WHEREAS, the Developer Parties and the City mutually desire that the Properties be
developed as permitted in the Existing Zoning, the Comprehensive Plan and this Agreement;
WHEREAS, the City Commission pursuant to Resolution No. 08-01015da, adopted
September 5, 2008 has authorized the City Manager to execute this Agreement upon the terms
and conditions as set forth below, and the Managing Members or Boards of Directors of the
Developer Parties or their parent or controlling entities have authorized the Developer Parties to
execute this Agreement upon the terms and conditions set forth below;
WHEREAS, the Project is located in the Southeast Overtown Park West Development of
Regional Impact ("SEOPW DRI") and the Southeast Overtown Park West Community
Redevelopment Area ("CRA");
WHEREAS, as of the Effective Date the SEOPW DRI has insufficient development
capacity to accommodate the Project; and
WHEREAS, to facilitate the Project, the CRA plan and the SEOPW DRI may need to be
amended, subject to any required.legal procedures and approvals;
NOW, THEREFORE, inconsideration of the mutual covenants and agreements
hereinafter contained, the parties mutually agree and bind themselves as set forth herein:
Section 1. The parties hereby agree that the consideration and obligations recited and
provided for under this Agreement constitute substantial benefits to both parties and thus
adequate consideration for this Agreement. This covenant shall be binding upon, and inure to,
the benefit of the parties, their successors, assigns, heirs, legal representatives, and personal
representatives.
Section 2. Rules of Legal Construction.
For all purposes of the Agreement, unless otherwise expressly provided:
(a) A defined twin has the meaning assigned to it;
(b) Words in the singular include the plural, and words in plural include the singular;
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(c)
(d)
(e)
(f)
A pronoun in one gender includes and applies to other genders as well;
The teulns "hereunder", "herein", "hereof, "hereto" and such similar terms shall
refer to the instant Agreement in its entirety and not to individual sections or
articles;
The Parties hereto agree that this Agreement shall not be more strictly construed
against either the City or any Developer Party as all parties are drafters of this
Agreement; and
The recitals are true and correct and are incorporated into and made a part of this
Agreement. The attached exhibits shall be deemed adopted and incorporated into
the Agreement; provided however, that this Agreement shall be deemed to control
in the event of a conflict between the attachments and this Agreement.
Section 3. Definitions.
"Agreement" means this Agreement between the City and Developer Parties.
"City" means the City of Miami, a municipal corporation and a political subdivision of
the State of Florida, and all departments, agencies and instrumentalities subject to the jurisdiction
thereof.
"Comprehensive Plan" means the comprehensive plan adopted by the City pursuant to
Chapter 163, Florida Statutes (2008), meeting the requirements of Section 163.3177, Florida
Statutes (2008), Section 163.3178, Florida Statutes (2008) and Section 163.3221(2), Florida
Statutes (2008), which is in effect as of the Effective Date.
"County" means Miami -Dade County, a political subdivision of the State of Florida.
"Development" means the carrying out of any building activity, the making of any
material change in the use or appearance of any structure or land, or the dividing of land into
three or more parcels and such other activities described in Section 163.3221(4), Florida Statutes
(2008).
"Effective Date" is the latter of the dates of recordation of this instrument or thirty days
after this instrument has been received by the state land planning agency pursuant to Section
163.3239, Florida Statutes (2008)..
"Existing Zoning" is (a) the City of Miami Ordinance No 11000, adopted March 8,
1990, and amended through the Effective Date, specifically including the SD 16.3 zoning district
regulations and subject to an escalating Affordable Housing Trust Fund contribution to be
determined at the time of building permit, and (b) the provisions of the Charter and City Code of
Miami ("Code") which regulate development, specifically including Chapters 10, 13, 22, 23, 36,
54, 55 and 62 of the Code as amended through the Effective Date, which together comprise the
effective land development regulations governing development of the Property as of the
Effective Date.
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"Land" means the earth, water, and air, above, below, or on the surface and includes any
improvements or structures customarily regarded as land.
"Laws" means all ordinances, resolutions, regulations, comprehensive plans, land
development regulations, and rules adopted by a local government affecting the development of
land.
"Property Interest" means any interest or rights in real property or appurtenances of the
Properties, including but not limited to, fee simple, leasehold, condominium, transferable
development right or air rights, and licenses, however acquired, including any interests or rights
in real property acquired through foreclosure, deed in lieu of foreclosure or any other realization
of a security interest in real property. Without limiting the foregoing, a Community
Development District and/or a master property owners' association with appropriate authority
relating to one or more of the Properties shall be deemed to hold a Property Interest.
"Public Facilities" means major capital improvements, including, but not limited to,
transportation, sanitary sewer, solid waste, drainage, potable water, educational, parks and
recreational, streets, parking and health systems and facilities.
Section 4. Purpose. The purpose of this Development Agreement is to establish certain
conditions which will result in the Developer Parties providing Open Spaces to the City, and to
freeze, as of the Effective Date, the land development regulations which will govern
development of the Project. This Agreement will provide both parties with additional certainty
during the development process.
Section 5. Intent. The Developer Parties and the City intend for this Agreement to be
construed and implemented so as to effectuate the purpose of this Development Agreement and
the purpose and intent of the Florida Local Government Development Agreement Act, Section
163.3220 - 163.3243, Florida Statutes (2008).
Section 6. Applicability. This Agreement applies only to the Properties located in the Miami
WorldCenter District. Additional property may be subsequently incorporated into this agreement
and bound by the rights and obligations established hereunder, only if such additional property is
acquired by a Developer Party and is incorporated pursuant to the joinder provisions of Section
20.
Section 7. Term and Effective Date. This Agreement shall have a term of twenty (20) years
from the Effective Date and shall be recorded in the public records of Miami -Dade County and
filed with the City Clerk. The term of this Agreement may be extended upon execution of a
written instrument approved by the Developer Parties and the City Commission or any other
legally required authority. This Agreement shall become effective on the Effective Date and
shall constitute a covenant running with the land
Section 8. Permitted Development Uses and Building Intensities.
(a) SD-16.3 Zoning District Designation. The City has designated the area bounded
by NE 2nd Avenue on the east, North Miami Avenue on the west, NE 11th Street
on the north, and NE 6th Street on the south as SD-16.3 on the official zoning
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Atlas of the City, pursuant to the applicable procedures in the Existing Zoning.
The SD-16.3 zoning district regulations are attached as Exhibit "D". In approving
the SD 16.3 zoning district designation, the City has determined that the uses,
intensities and densities of development permitted thereunder are consistent with
the Comprehensive Plan and the Existing Zoning.
(b) Density, Intensity, Uses and Building Heights.
(1) As of the Effective Date and pursuant to the Existing Zoning, the density
peiinitted on the Property is approximately 300 units per acre, and the
intensity permitted on the Property is measured by a base floor area ratio
of approximately 4.32, plus any applicable bonuses provided in the
Existing Zoning.
(2) The non-residential development permitted on the Property includes, but is
not limited to, the following uses: office,hotel, retail, convention space,
academic space and any other uses permitted by the Existing Zoning.
The height for any development on the Properties shall be regulated by the
Existing Zoning and the Comprehensive Plan.
(4) Nothing herein shall prohibit an increase in the density or intensity 'Of
development permitted on the Properties in a manner consistent with (a)
the Existing Zoning and/or the Comprehensive Plan, (b) any zoning
change subsequently requested or initiated by any Developer Party in
accordance with applicable provisions of law or (c) any change to the
zoning district regulations, the zoning atlas or the land development
regulations subsequently enacted by the City.
Section 9. Public Facilities. As of the Effective Date, the Developer Parties are conducting
an extensive analysis of the Public Facilities available to serve the Project. In the event that the
Existing Zoning and/or the Comprehensive Plan require the Developer Parties to provide
additional Public Facilities to accommodate the Project, the Developer Parties will provide such
Public Facilities consistent with the timing requirements of Section 163.3180(2)(a), (b) and (c),
Florida Statutes (2008), or as otherwise required by a DRI development order and Chapter 13 of
the City Code, as amended from time to time, if applicable.
(3)
Section 10. Project Approval.
(a) Further Development Review. The Existing Zoning, the Comprehensive Plan and
this Agreement establish the criteria upon which the Properties shall be developed
during the teL.un of this Agreement.
(b) Prohibition on Downzoning.
(1) The Existing Zoning, the Comprehensive Plan and this Agreement shall
govern development of the Properties for the duration of the Agreement.
City's laws and policies adopted after the Effective Date may be applied to
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the Properties only if the determinations required by Section 163.3233(2),
Florida Statutes (2008) have been made after 30 days written notice to the
Developer Parties and at a public hearing.
(2) Pursuant to Section 163.3233(3), Florida Statutes (2008), this prohibition
on downzoning supplements, rather than supplants, any rights that may
vest to the Developer Parties under Florida or Federal law. As a result, the
Developer Parties may challenge any subsequently adopted changes based
on (a) common law principles including, but not limited to, equitable
estoppel and vested rights, or (b) statutory rights which may accrue by
virtue of Chapter 70, Florida Statutes (2008).
(c) Development of Regional Impact.
(1) City acknowledges that the development entitlements remaining in the
SEOPW DRI are not sufficient to accommodate the Project. City further
acknowledges that the development entitlements currently remaining in
the SEOPW DRI are not sufficient to allow build -out of properties within
the boundaries of the SEOPW DRI, as permitted under the Existing
Zoning and the Comprehensive Plan.
(2) Subject to required legal processes and approvals, the City and the
Developer Parties shall cooperate, and the City shall expeditiously
consider (a) the application to approve Increment III to the SEOPW DRI
and (b) amendment of the SEOPW DRI to accommodate the Project, as
well as additional development within the boundaries of the SEOPW DRI.
(3) If applicable, the City also agrees (a) to expeditiously consider the
Developer Parties' application for a new Development of Regional Impact
for the Project or (b) to support other applications or legislation that either
(i) increases the allowable thresholds for development so that the Project
is not required to be reviewed under Section 380.06, Florida Statutes
(2008), or (ii) exempts the Project from review under Section 380.06,
Florida Statutes (2008).
(4) City agrees that any DRI development order which the City adopts after
the Effective Date and which applies to the Properties, will include a
Use/Intensity conversion table to allow for a reasonable level of flexibility
with respect to the mix and intensity of uses in order to respond to
changing market conditions.
(5) In the event Project is not exempt from DRI review and is developed
pursuant to a DRI development order, Developer Parties agree to pay their
proportionate share of the costs of mitigating the off -site impacts to
regional infrastructure, as determined by the DRI development order or as
required by Chapter 13 of the City Code, as amended from time to time.
Section 11. Reservation or Dedication of Land.
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(e)
(f)
(a) Except as otherwise provided in this Agreement and pursuant to applicable
subdivision regulations, the Developer Parties shall not be required to dedicate or
reserve any land within the Properties for municipal purposes.
(b)
(c)
The Developer Parties agree to create within the Project (1) one public open space
of at least 20,000 square feet, (2) one public open space of at least 14,000 square
feet, (collectively the "Open Spaces") and (3) wide sidewalks designed to
accommodate increased pedestrian activity that will include shopping,
entertainment and outdoor seating, as generally labeled on the Regulating Plan
attached as Exhibit "E".
The Developer Parties will retain ownership of the Open Spaces but hereby agree
to grant the City a non-exclusive easement which will allow public access to the
Open Spaces (the "Open Space Easement"). The Developer Parties and the
City also agree to execute a maintenance, operation and liability agreement (the
"Open Space Agreement") to assign certain responsibilities and obligations
regarding the Open Spaces.
(d) The City and Developer Parties agree to execute and record the Open Space
Easement and the Open Space Agreement prior to the City issuing a building
permit for more than 4 million square feet of development on the Property.
The general -location and dimensions of the Open Spaces shall be substantially in
accordance with the Regulating Plan, or as otherwise mutually agreed by the
Developer Parties and the City. The specific location and dimensions of the Open
Spaces will be •determined in the Open Space Easement.
Developer Parties retain the exclusive right to design, landscape and program the
Open Spaces. The conceptual design of the Open Spaces will reviewed by the
Cityand included as part of the Open Space Agreement.
Section 12. Job Creation. Developer Parties shall consult with local and state economic
development entities, such as Beacon Council, South Florida Workforce, Enterprise Florida,
Florida International University School of Hospitality & Tourism Management, and Miami -Dade
College in developing a plan for job training and job placement services to city residents seeking
employment opportunities with potential employers which will locate or establish business
within the Project.
Section 13. Local Development Permits.
(a) The development of the Properties in accordance with the Existing Zoning is
contemplated by the Developer Parties. The Project may require additional
permits or approvals from the City, County, State, or Federal government and any
division thereof Subject to required legal process and approvals, the City shall
make a good faith effort to take all reasonable steps to cooperate with and
facilitate all such approvals. Such approvals include, without limitation, the
following approvals and permits and any successor or analogous approvals and
permits:
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(1) Class II Special Permit and other site plan approvals (including major use
special permit, if applicable);
(2) Subdivision plat and/or waiver of plat approvals;
(3) Covenant or Unity of Title acceptance or the release of existing unities or
covenants;
(4)
(5)
(6)
(7)
(8)
Building permits;
Certificates of use and/or occupancy;
Stoinnwater Permits;
Development of Regional Impact approval, modification or exemption;
and
Any other official action of the City or other government agency having
the effect of permitting development of the Properties.
(b) In the event that the City substantially modifies its land development regulations
regarding site plan approval procedures, authority to approve any site plan for a
project on one of the Properties shall be vested solely in the City Manager, with
the recommendation of the Planning Director. Any such site plan shall be
approved if it meets the requirements and criteria of the Existing Zoning, the
Comprehensive Plan and the terms of this Agreement.
Section 14. Consistency with Comprehensive Plan. The City finds that development of the
Properties in conformity with the Existing Zoning is consistent with the Comprehensive Plan.
Section 15. Necessity of Complying with Local Regulations Relative to Development
Permits. The Developer Parties and the City agree that the failure of this Agreement to address a
particular permit, condition, fee, terror, license, or restriction in effect on the Effective Date shall
not relieve the Developer Parties of the necessity of complying with the regulation governing
said permitting requirements, conditions, fees, terms, licenses, or restrictions as long as
compliance with said regulation and requirements does not require any Developer Party to
develop a Property in a manner that is inconsistent with Existing Zoning, the Comprehensive
Plan and/or the Agreement.
Section 16. Reservation of Development Rights.
For the term of this Agreement, the City hereby agrees that it shall permit the
development of the Properties in accordance with the Existing Zoning, the
Comprehensive Plan and the Agreement.
Nothing herein shall prohibit an increase in the density or intensity of
development permitted on the Properties in a manner consistent with (a) the
Existing Zoning and/or the Comprehensive Plan, (b) any zoning change
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(c)
subsequently requested or initiated by any Developer Party in accordance with
applicable provisions of law or (c) any zoning change subsequently enacted by the
City.
The expiration or termination of this Agreement shall not be considered a waiver
of, or limitation upon, the rights, including, but not limited to, any claims of
vested rights or equitable estoppel, obtained or held by any Developer Party or its
successors or assigns to continue development of the Property in conformity with
Existing Zoning and all prior and subsequent development permits or
development orders granted by the City.
Section 17. Streetcar. Developer Parties acknowledge that the City is currently planning to
construct a light rail transit system commonly referred to as the streetcar, which may traverse or
abut the Miami WorldCenter District. Developer Parties agree to cooperate with the City so that
any portion of the streetcar route which runs through, or adjacent to, the Miami WorldCenter
District can be accommodated within the dedicated public rights -of -way.
Section 18. Community Development District.
(a)
City shall support the creation of a community development district or other
independent special district ("District") to assist in funding and constructing
onsite and offsite infrastructure and to provide services required to support the
Project, and- Developer Parties may establish, or cause to be established, such
District.
(b) In the event that the City and County establish a District for the Project, the
District may assume any responsibility of any Developer Party under this
agreement.
Section 19. Annual Review.
(a)
The City shall review the development that is subject to this Agreement every 12
months, commencing 12 months after the Effective Date, The City shall begin
the review process by giving notice to the Developer Parties, a minimum of 30
days prior to the anniversary date of the Agreement, of its intention to undertake
the annual review of this Agreement.
(b) Any information required of the Developer Parties during an annual review shall
be limited to that necessary to determine the extent to which the Developer is
proceeding in good faith to comply with the terms of this Agreement. For each
annual review conducted during the years 6 through 10 of this Agreement, the
City shall prepare a written report which will be submitted to the parties to this
Agreement and the State land planning agency.
If the City finds on the basis of competent substantial evidence that there has been
a failure to comply substantially with the terms of the Agreement, the City may
terminate or amend this Agreement after providing 30 days written notice to the
Developer Parties and at a public hearing.
(c)
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Section 20. Notices.
(a) All notices, demands and requests which may or are required to be given
hereunder shall, except as otherwise expressly provided, be in writing and
delivered by personal service or sent by telex, telecopy, telegram, United States
Registered or Certified Mail, return receipt requested, postage prepaid, or by
overnight express delivery, such as Federal Express, to the parties at the addresses
and telecopy numbers listed below. Any notice given pursuant to this Agreement
shall be deemed given when received. Any actions required to be taken hereunder
which fall on Saturday, Sunday, or United States legal holidays shall be deemed
to be perfotzzled timely when taken on the succeeding day thereafter which shall
not be a Saturday, Sunday or legal holiday.
To the City:
City Manager
City of Miami
3500 Pan American Drive
Miami, FL 33133
With a copy to:
City Attorney
Miami Riverside Center
444 S.W. 2nd Ave., 9th Floor
Miami, FL 33130
To the Developer Parties:
Managing Member
Miami WorldCenter LLC.
700 NE 2nd Avenue
Miami, FL33132
With copies to:
Berger Singerman
Attn: Sam Poole
200 S Biscayne Blvd, Ste. 1000
Miami, FL 33131
With copies to:
Akerman Senterfitt
Attn: Neisen Kasdin
1 SE 3rd Avenue, 25th Floor
Miami, FL 33131
To the SEOPW CRA as courtesy notice:
Executive Director
SEOPW CRA
49 NW 5th Street, Suite 100
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(b)
Miami, Florida 33128
Any Party to this Agreement may change its notification address(es) by providing
written notification to the remaining parties pursuant to the terms and conditions
of this section.
Section 21. Joinder.
(a) If a Developer Party acquires fee simple title to a Property Not -Included
subsequent to the Effective Date, the Developer Party may incorporate that
property into this Agreement, subjecting it to the rights and obligations
established hereunder, provided that the Developer Party executes the Joinder
Foinu and Acknowledgement of Joinder attached as Exhibit "F". Once executed,
the Developer Party shall record the executed Joinder Faun in the public records
of Miami -Dade County and file same with the City Clerk.
(b)
The parties agree that any property which is incorporated into the Agreement
through this Joinder provision shall be subject to the Existing Zoning, the
Comprehensive Plan and the terms of this Agreement. In the event that the City
does not afford any subsequently incorporated property with the protections of the
Existing Zoning, the Comprehensive Plan and the terms of this Agreement, the
City will be deemed to have breached this Agreement.
(c) Nothing herein shall prohibit the Developer Parties from objecting to any policy
which would not afford a subsequently incorporated property with the protections
of the Existing Zoning, the Comprehensive Plan and the terms of this Agreement.
Section 22. Exclusive Venue, Choice of Law, Specific Performance. It is mutually
understood and agreed by the parties hereto, that this Agreement shall be governed by the laws
of the State of Florida, and any applicable federal law, both as to interpretation and performance,
and that any action at law, suit in equity or judicial proceedings for the enforcement of this
Agreement or any provision hereof shall be instituted only in the courts of the State of Florida or
federal courts and venue for any such actions shall lie exclusively in a court of competent
jurisdiction in the County. In addition to any other legal rights, the City and the Developer
Parties shall each have the right to specific performance of this Agreement in court. Each party
shall bear its own attorneys 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 23. Voluntary Compliance. The Developer Parties and the City agree that in the
event all or any part of this Agreement is struck down by judicial proceeding or preempted by
legislative action, the Developer Parties and the City shall continue to honor the terms and
conditions of this Agreement to the extent allowed by law.
Section 24. No Oral Change or Termination. This Agreement and the exhibits and
appendices appended hereto and incorporated herein by reference, if any, constitute the entire
Agreement between the parties with respect to the subject matter hereof. This Agreement
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(b)
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 25. Compliance with Applicable Law.
(a)
Subject to the terms and conditions of this Agreement, throughout the Term of
this Agreement, the Developer Parties and City shall comply with all applicable
federal, state or local laws, rules, regulations, codes, ordinances, resolutions,
administrative orders, permits, policies and procedures and orders that govern or
relate to the respective Parties' obligations and performance under this
Agreement, all as they may be amended from time to time.
Section 26. Representations; Representatives. Each party represents to the others that this
Agreement has been duly authorized, delivered and executed by such party and constitutes the
legal, valid and binding obligation of such party, enforceable in accordance with its terms.
Section 27. No Exclusive Remedies. No remedy or election given by any provision in this
Agreement shall be deemed exclusive unless expressly so indicated. Wherever possible, the
remedies granted hereunder upon a default of the other party shall be cumulative and in addition
to all other remedies at law or equity arising from such event of default, except where otherwise
expressly provided.
Section 28. Failure to Exercise Rights not a Waiver: Waiver Provisions. The failure by either
party to promptly exercise any right arising hereunder shall not constitute a waiver of such right
unless otherwise expressly provided herein. No waiver or breach of any provision of this
Agreement shall constitute a waiver of any subsequent breach of the same or any other provision
hereof, and no waiver shall be effective unless made in writing.
Section 29. 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 texun, 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.
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
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(c)
(d)
if it commences to cure such breach within said thirty (30) day period and
diligently prosecutes such cure to completion.
It shall not be a default under this Agreement if either party is declared bankrupt
by a court of competent jurisdiction. All rights and obligations in this Agreement
shall survive such bankruptcy of either party. The parties hereby forfeit any right
to terminate this Agreement upon the bankruptcy of the other party.
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 30. Remedies Upon Default.
(a) Neither party may terminate this Agreement upon the default of the other party,
but shall have all of the remedies enumerated herein.
(b) Upon the occurrence of a default by a party to this Agreement not cured within
the applicable grace period, the Developer Parties and the City agree that any
party may seek specific perfou lance of this Agreement, and that seeking specific
performance shall not waive any right of such party to also seek monetary
damages or .any other relief other than termination of this Agreement. The City
hereby acknowledges that any claim for damages under this Agreement is not
limited by sovereign immunity or similar limitation of liability. In addition to any
other remedies available to the City hereunder, in the event of default by any
Developer Party or any successor or assignee, the City may withhold any permit
or other approval, but only for the party in breach.
Section 31. Severability. If any term or provision of this Agreement or the application thereof
to any person or circumstance shall, to any extent, hereafter be determined to be invalid or
unenforceable, the remainder of this Agreement or the application of such term or provision to
persons or circumstances other than those as to which it is held invalid or unenforceable shall not
be affected thereby and shall continue in full force and effect.
Section 32. Assignment and Transfer. This Agreement shall be binding on the Developer
Parties and their heirs, successors and assigns, including the successor to or assignee of any
Property Interest. A Developer Party, at its sole discretion, may assign, in whole or in part, this
Agreement or any of its rights and obligations hereunder, or may extend the benefits of this
Agreement, to any holder of a Property Interest without the prior written consent or any other
approval of the City. In addition, additional parties that are affiliates or assignees of the
Developer Parties may be added to this Agreement if the party added holds a Property Interest in
or adjacent to the Miami WorldCenter District and executes a joinder form in the form attached
as Exhibit "F", and records such joinder form in the public records of Miami -Dade County. Such
party shall be a Developer Party, and such joinder form shall be acknowledged by the City
Manageror his or her designee. Any such assignee or additional party shall assume all
applicable rights and obligations under this Agreement.
{M2727171;10} 13
Section 33. Obligations Surviving Termination Hereof. Notwithstanding and prevailing over
any contrary term or provision contained herein, in the event of any lawful termination of this
Agreement, the following obligations shall survive such 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 teiinination of this Agreement, and (iii) any other tem' 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 34. Lack of Agency Relationship. Nothing contained herein shall be construed as
establishing an agency relationship between the City and any Developer Party and neither any
Developer Party nor its employees, agents, contractors, subsidiaries, divisions, affiliates or guests
shall be deemed agents, instrumentalities, employees, or contractors of the City for any purpose
hereunder, and the City, its contractors, agents, and employees shall not be deemed contractors,
agents, or employees of any Developer Party or its subsidiaries, divisions or affiliates.
Section 35. Cooperation; Expedited Permitting and Time is of the Essence.
.(a) The parties agree to cooperate with each other to the full extent practicable
pursuant to the terms and conditions of this Agreement. The parties agree that
time is of the essence in all aspects of their respective and mutual responsibilities
pursuant to this Agreement. The City shall use its best efforts to expedite to the
extent reasonably practical the permitting and approval process in an effort to
assist any Developer Party in achieving its demolition, development and
construction milestones. The City will accommodate requests from a Developer
Party's general contractor and subcontractors for review of multiple permitting
packages, such as those for site work and foundations, and building shell, core
and interiors, In addition, the City will designate an individual within the City
Manager's office tivho will have a primary (though not exclusive) duty to serve as
the City's point of contact and liaison with the Developer Parties in order to
facilitate expediting the processing and issuance of all permit and license
applications and approvals across all of the various departments and offices of the
City which have the authority or right to review and approve all applications for
permits and licenses.
(b)
Notwithstanding the foregoing, the City shall not be obligated to issue
development permits to the extent a Developer Party does not comply with the
applicable requirements of the Existing Zoning, the Comprehensive Plan, this
Agreement and applicable building codes.
Section 36. Enforcement.
(a) In the event that a Developer Party, its successors and/or assigns fails to act in
accordance with the terms of the Existing Zoning, the City shall seek enforcement
of said violation upon the subject Property.
{M2727171;10} 14
(b)
(c)
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.
This enforcement provision shall be in addition to any other remedies available at
law, in equity or both.
Section 37. Amendment or Termination by Mutual Consent. This Agreement may not be
amended or terminated during its term except by mutual agreement of the Developer Parties and
the City. Prior to amending or terminating this Agreement during its term, the City shall hold
two public hearings.
Section 38. Third Party Defense. City and Developer Parties shall, at their own cost and
expense, vigorously defend any claims, suits or demands brought against it by third parties
threatening the Agreement, challenging its enforceability, or objecting to any aspect thereof,
including, without limitation, any claims for loss, damage, liability, or expense (including
reasonable attorneys' fees). City and Developer Parties shall promptly give the other written
notice of any such action, including those that are pending or threatened, and all responses,
filings, and pleadings with respect thereto.
Section 39. No Conflict of Interest. The Developer Parties agree to comply with Section 2-
612 of the City Code as of the Effective Date, with respect to conflicts of interest.
Section 40. No Third -Party Beneficiary. No persons or entities other than the Developer
Parties and the City, their heirs, permitted successors and assigns, and any party that has
executed a copy of the attached Joinder Form, shall have any rights whatsoever under this
Agreement.
Section 41. Counterparts. This Agreement may be executed in three or more counterparts,
each of which shall constitute an original but all of which, when taken together, shall constitute
one and the same agreement.
NOW, WHEREOF, the City and the Developer Parties have caused this Agreement to be
duly executed.
[Signature blocks for City and all Developer Parties]
{M2727171;10) 15
MIAMI WORLDCENT
BY:
Name:
Title:
PARK WEST VENTU
BY:
Name:
Title:
PWV GROUP 1 HOL
BY:
Name:
Title:
{M2727171;10)
, a Florida limited liability company
Ch1-yL%`
'da limited liability company
forida limited liability company
16
CITY OF, `'iT�` , FLORIDA
BY:
Pedro G. Heman
ATTEST:
BY:
P.E., City Manager
Priscilla A. Thompson, City Clerk
APPROVED AT TO FORM AND CORRECTNESS
BY:
Tolle 0. Bru, City Attorney
{M2727171;10} 17
Exhibit "A"
Legal Descriptions of the Property
{M2727171;10) 18
Exhibit "B"
Legal Descriptions of the Property Not -Included
{M2727171;10) 19
Exhibit "C"
Conceptual Site Plan
{M2727171;10} 20
Exhibit "D"
SD-16.3 Zoning District Regulations
{M2727171;10} 21
Exhibit "E"
Regulating Plan
{M2727171;10} 22
Exhibit "F"
ASSIGNEE OR ADDITIONAL PARTY
TO DEVELOPMENT AGREEMENT
JOINDER FORM AND
ACKNOWLEDGEMENT OF JOINDER
This ASSIGNEE OR ADDITIONAL PARTY TO DEVELOPMENT
AGREEMENT JOINDER FORM ("Joinder Form") is executed of this day of
, 20 by the undersigned entity.
RECITALS
Whereas the City has entered into a Development Agreement dated
20_ and recorded in the public records of Miami -Dade County, Book , Page
("Development Agreement") with certain Developer Parties as defined therein.
Whereas the Development Agreement secures certain benefits and obligations for the
mutual benefit of the City and the Developer Parties, as set forth in the Development Agreement.
Whereas the Development Agreement allows joinder of additional property when a
Developer Party acquires fee simple title to any Property Not -Included within the Miami
WorldCenter District (as those terms are defined in the Development Agreement).
Whereas the Development .Agreement requires that such additional party execute this
joinder form in order to become a party to the Development Agreement.
Whereas the undersigned, desires to enjoy the benefits conferred upon the Developer
Parties under the Development Agreement, and in consideration for such benefits agrees to be
bound by the obligations imposed therein upon the Developer Parties.
Whereas the undersigned owns property or a Property Interest in the Miami WorldCenter
District, more particularly described in Exhibit " " attached hereto.
Now therefore, in consideration of the benefits conferred upon any Developer Party by
the aforementioned Development Agreement, and certifying that the above recitals are true and
correct, and incorporating such recitals herein, the undersigned does hereby execute this Joinder
Form and become a Developer Party to the Development Agreement.
The undersigned shall assume all of the benefits, and be bound, comply with, and
perform all of the obligations, as set forth in the Development Agreement and as applicable to
the property or Property Interest which the undersigned owns. The undersigned shall be
obligated to the City for the benefit of the City, and the City shall have all rights and remedies set
forth in the Development Agreement to enforce the teiuis of the Development Agreement against
the undersigned, to the extent applicable to the property or Property Interest owned by the
undersigned.
{M2727171;10} 23
The undersigned also hereby represents that it has full power and authority to execute this
Joinder Fowl, and certifies to City that none of its owners or officers, nor any immediate fancily
member of any of such owners or officers, is also a member ofany board, commission, or
agency of the City.
The City hereby acknowledges and consents to the joinder of the above signatory as a
Developer Party to the Development Agreement.
CITY OF TiTi�;� , _FLORIDA
BY:
Pedro G. Tiernan
ATTEST:
ez, P.E., City Manager
4:44,f,j2L 12
Priscilla A. Thom son, City Clerk
!f' 3- 5
• .APPROVED AT TO FORM .AND CORRECTNESS:
BY:
Juli'e'O. Bru, City Attorney
{M2727171;10) 24