HomeMy WebLinkAboutCC 03-27-14 SR Exhibit A (development agreement) SUB-VIed
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This instrument Prepared by and
after Recording Return To;
T. Spencer Crowley, Esq.
Alterman LLP
1 SE Third Avenue, 25th Floor
Miami, FL 33131
SECOND AMENDED AND RESTATED
DEVELOPMENT AGREEMENT BETWEEN THE
CITY OF MIAMI, FLORIDA AND BRICKELL
CITY CENTRE PROJECT LLC AND 700
BRICKELL CITY CENTRE LLC, REGARDING
DEVELOPMENT OF THE BRICKELL CITY
CENTRE PROJECT
THIS AGREEMENT is entered this 2? day of )\ , 2014, and effective
as of the Twenty Seventh (27th) day of March, 2014, by and between BRICKLL CITY
CENTRE PROJECT, LLC, a Florida limited liability company and 700 BRI9(ELL CITY
CENTRE, LLC, a Florida limited liability company (together known as "Sw)re"), 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 held fee simple title to approximately nine (9)/acres of property in
the Brickell area of downtown Miami ("Original Property"); and
WHEREAS, the Original Property was more specifically located south of the Miami
River, west of Brickell Avenue, north of SW 8th Street, and east of W 1st Avenue; and
WHEREAS, the Original Property spanned four (4) city/blocks and was located
between two (2) mass transit lines; and
WHEREAS, the Original Property was underutilized in that it predominantly
consisted of vacant, undeveloped lots secured by chain link fending; and
WHEREAS, the status of the Original Property wa`s inconsistent with the City's
vision to develop a world class downtown, and the City wished to encourage redevelopment
of the Original Property; and
WHEREAS, Swire wished to redevelop the Original Property as a higher
density, mixed -use, pedestrian oriented, urban development known as Brickell City
Centre which would provide much needed retail for the Brickell and Downtown area of
Miami ("Project"); and
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- WHEREAS, in order to maximize efficiency and design of the Project, Swire desired to
construct two (2) levels of underground parking; and
WHEREAS, a process exists within the City's zoning code ("Miami 21") which
allows parcels of more than nine (9) 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; and
WHEREAS, the result of this master planning process is known as a "Special Area
Plan" or "SAP"; and
WHEREAS, on July 28, 2011, the City approved an SAP for the Project; and
WHEREAS, Miami 21 requires development within an SAP to be governed by a
Development Agreement between the property owner and the City; and
WHEREAS, on October 24, 2011, Swire recorded a Development Agreement for the
Project; and
WHEREAS, on March 28, 2013, the City approved an amendment to the SAP for
the Project to include a city block known as "N2" and also approved an Amended and
Restated Development Agreement; and
WHEREAS, on April 7, 2014, Swire recorded the Amended and Restated
Development Agreement for the Project; and
WHEREAS, Swire recently acquired additional property located between SE 7th
Street and SE 8th Street, lying west of Brickell Avenue, consisting of approximately 67,449
sq. ft, (1,55 acres); and
WHEREAS, the area known as "BCC Plaza" combined with the additional property
will be known as "One BCC;" and
WHEREAS, Swire is now the owner of all of the properties described in the original
Development Agreement dated October 24, 2011, the Amended and Restated Development
Agreement dated April 4, 2014, and the additional properties described herein ("Amended
Property," legal description of which is attached as Exhibit "A"); and
WHEREAS, the One BCC block has been rezoned from a mixture of T6-48B-0 and T6-
48A-O to the Brickell City Centre SAP with an underlying Transect Zone of T6-48B-O; and
WHEREAS, the City and Swire wish to amend the Development Agreement and the
Amended and Restated Development Agreement for Brickell City Centre to include the One
BCC block in order to encourage redevelopment of the Amended Property and effectuate the
Project; and
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WHEREAS, this Second Amended and Restated Development Agreement
("Agreement") supersedes the Development Agreement which -was recorded on October 24,
2011 and also supersedes the Amended and Restated Development Agreement which was
recorded on April 7, 2014 and satisfies the requirement set forth in Miami 21; and
WHEREAS, the City and Swire wish for development of the Project to proceed
substantially in accordance with the Regulating Plan as amended and Design Guidelines
adopted on July 28, 2011, March 28, 2013, and March 27, 2014 and kept on file with the City
("Regulating Plan and Design Guidelines"); and
WHEREAS, the Amended Property is designated Restricted Commercial, with an
Urban Central Business District Overlay, in the Miami Comprehensive
Neighborhood Plan ("Comprehensive Plan"); and
WHEREAS, the City and Swire wish for development of the Project to proceed in a
manner which is consistent with the Comprehensive Plan; and
WHEREAS, the Project is located in the Downtown Development of Regional Impact
("DDRI"); and
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; and
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; and
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; and
WHEREAS, the City Commission, pursuant to Ordinance No. 13441 adopted March
27, 2014, has authorized the City Manager to execute this Agreement upon the terms and
conditions as set forth below; and
WHEREAS, 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:
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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 the 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 Swine, 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 exhibits and this Agreement.
Section 3, Definitions. Capitalized terms which are not specifically defined herein shall
have the meaning given in Miami 21,
(f)
"Agreement" means this Second and Restated Development Agreement Between
the City of Miami, Florida and Brickell City Centre Project, LLC and 700 Brickell
City Centre, LLC, Regarding Development of the Brickell City Centre Project,
"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.
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"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 (3) or more parcels and such other activities described in Section
163,3221(4), Florida Statutes (2010).
"Effective Date" means March 27, 2014, the date the City Commission authorized
the City Manager to execute this Agreement.
"Existing Zoning" means the zoning designation and regulations of the Miami
21 Code, City Charter, and City Code in effect as of October 24, 2011 which
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" mean all ordinances, resolutions, regulations, comprehensive plans, land
development regulations, and rules adopted by a local, state, or federal government
affecting the development of land,
"Public Facilities" means major capital improvements, including, but not limited to,
transportation, sanitary sewer, solid waste, drainage, potable water,
educational, parks and recreational, streets, parking, and health systems and
facilities.
Section 4, Purpose. The purpose of this Agreement is for the City to authorize Swire
to develop the Project pursuant to the Brickell City Centre SAP, This Agreement will
establish, as of the Effective Date of this Agreement, the land development regulations
including the Existing Zoning, the Regulating Plan, and Design Guidelines, which together
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 City Centre SAP, this
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
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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 City Centre SAP Designation. The City has designated the
Amended Property as part of the Brickell City Centre SAP on the official
zoning Atlas of the City, pursuant to the applicable procedures in Miami 21. The
Regulating Plan and Design Guidelines are attached as Exhibit "B". In
approving the Brickell City Centre 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 Ileights.
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(i)
As of the Effective Date and pursuant to the Brickell City Centre SAP, the
density proposed for the Amended Property shall not exceed 124 units per
acre, and the intensity proposed for the Amended Property is measured
by an above -ground Floor Lot Ratio which shall not exceed 18.0
(specifically excluding underground parking and circulation).
(ii) The non-residential Development permitted on the Amended 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.
(iii) As of the Effective Date and pursuant to the Brickell City Centre SAP, the
maximum heights above mean level are:
• 1,049 feet for the One BCC block;
• 683 feet for all other blocks;
• 160 feet for the One BCC and N2 Pedestals;
• 129 feet for all other Pedestals.
(iv) Nothing herein shall prohibit Swire from requesting an increase in the
density or intensity of Development permitted on the Amended Property,
as long as such increase in density or intensity is consistent with the
Comprehensive Plan, Existing Zoning, the SAP, and this Agreement as
it exists on the Effective Date,
(v) The One BCC building is eligible for the bonus height and Floor Lot
Ratio benefits due to the public benefits that the One BCC building
encompasses.
(vi) Public benefits resulting in additional benefits are those in addition to
the requirements delineated in the Regulating Plan, Design Guidelines,
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(c)
(d)
and Section 3,9 of Miami 21, The Bricicell City Centre SAP public
benefits, as defined in the Regulating Plan, are:
• 6th Street/Miami Avenue Roundabout
• Eastward expansion of Metromover Station and direct connection
to Bricicell Avenue
• Active uses on SE 7th and SE 8th Streets and improved efficiency of
ground floor circulation enabled by underground loading
• Below -grade connection under Metromover Station
• Enhancement to Plazas on Bricicell Avenue and Climate Ribbon
The total costs of the public benefits for the Project are above and
beyond the monetary payment which would be required under the
Public Benefits Trust Fund regulations of Miami 21 and Chapter 62 of
the City Code.
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. Any tree replacement shall be within one (1)
mile radius of the Project, with an emphasis along 7th Street, 8th Street, and
South Miami Avenue. The City agrees to facilitate the permitting and planting
of replacement trees on all publicly owned properties in this area.
Archaeological, Because of the Project's location in a high probability
archaeological zone, Swire is required to obtain a certificate to dig prior to any
ground disturbing activities. I-Iowever, in no case shall the City require
archaeological monitoring during excavation of the limestone bedrock,
Section 9, Connectivity and Activity within Public Right -of -Way,
(a)
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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 the 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 rights -of -
way will have no adverse effects on the provision of natural light or
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 public rights -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 of the City Code, as amended, shall not
apply within the Brickell City Centre 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
rights -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, as amended.
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Further, this Agreement shall satisfy the requirements of Sec. 55-14(d) of the
City Code, as amended. In consideration for authorizing the construction of
the aforementioned encroachments, Swire further covenants to:
(i)
Maintain the above -grade pedestrian walkways and below -grade vehicular
underpasses in accordance with the Florida Building Code, the City
Charter, the City Code, and any other applicable federal, state, and local
statutes, laws, rules, orders, and regulations.
i) Provide an insurance policy, in an amount determined by the City's
Risk Management Department, 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 public right-of-
way. Should Swire fail to continue to provide the insurance coverage,
the City shall have the right to secure a similar insurance policy in its
name and place a special assessment lien against all properties subject
to this Agreement for the total cost of the premium.
(iii) Swire shall hold harmless and indemnify the City, its officials,
and its 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
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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, as amended, the City shall
permit Food Service Establishment(s) and 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.
(d) Extension of SE 1st Avenue/Brickell Plaza. Due to the public benefits of the
Project as enumerated in Section 8(b)(vi) of this Agreement, the extension of SE
1st Avenue/Brickell Plaza through the One BCC site, as originally contemplated
by Resolutions 83-1054 and 90-942, is no longer necessary as evidenced by
approval of the first Agreement on July 28, 2011, the first Amended Agreement
on March 28, 2013, and this Second Amended Agreement,
(e)
Easement, Insurance, and Indemnification. Swire has previously executed a
construction easement (see ORB 29039, Page 2266) with the City and included
insurance and indemnification language in said construction easement. The
language is incorporated into this Agreement by reference.
Section 10, Project Approval.
(a) Future Development Review. Future Development within the Brickell City
Centre SAP shall proceed pursuant to the process established in the Regulating
Plan and Design Guidelines and shall be consistent with the Comprehensive
Plan, this Agreement, and the Brickell City Centre SAP.
(b) Prohibition on Downzoning,
(i)
(i)
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The Comprehensive Plan, this Agreement, and the Brickell City Centre
SAP shall govern Development of the Amended Property for the
duration of the Agreement. The City's laws and policies adopted after
the Effective Date may be applied to the Amended Property only if the
determinations required by Section 1633233(2), Florida Statutes (2010)
have been made after thirty (30) days written notice to Swire and after a
public hearing.
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),
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(c) Development of Regional Impact,
(i)
The 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.
(ii) The City agrees that any DRI Development order which the City
adopts after the Effective Date and which applies to the Amended
Property will (A) be consistent with this Agreement and the Brickell
City Centre SAP and (B) 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,
(iii) The City agrees that if the Miami Downtown Development Authority
("DDA") 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 DDA 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 and Entertainment Specialty District
Designation, Pursuant to Chapter 4 of the City Code, each block of the five -block
Project is designated as a retail specialty center and each block is designated as an
entertainment specialty district.
Any establishments located within the Project shall be entitled to the benefits afforded to
establishments in a retail specialty center and entertainment specialty district, as codified by
Chapter 4 of the City Code. Notwithstanding the requirements of Sec, 4-3.2 of the City Code,
PZAB and City Commission approval shall not be required for alcohol establishments as
principal uses proposed to be located within the Project.
Each alcohol establishment within the Project shall not count towards the maximum number of
establishments in the Brickell Riverside Entertainment District. Each alcohol establishment
within the Brickell Riverside Entertainment District shall not count towards the maximum
number of establishments within the Project.
The maximum number of establishments selling alcoholic beverages permitted within the
Project's retail specialty centers and entertainment specialty districts shall not exceed five (5) per
block, exclusive of any bona fide, licensed restaurants where the sale of alcoholic beverages is
entirely incidental to and in conjunction with the principal sale of food (e.g. bona fide, licensed
restaurants with a 2-COP, 2-COP SRX, 4-COP, 4-COP SRX or equivalent license). However,
the maximum number of establishments classified as nightclubs (as defined by Chapter 4, Article
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I of the City Code) shall not exceed two (2) per block, unless otherwise approved by an SAP
Permit,
The total number of alcohol establishments (exclusive of any bona fide, licensed restaurants
where the sale of alcoholic beverages is entirely incidental to and in conjunction with the
principal sale of food) shall not exceed twenty-five (25) for the entire Project. The number of
approved establishments may be increased by amendment to this Agreement after two (2) public
hearings before the City Commission.
Section 12, Job Creation, Swire shall consult with local and 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 businesses within the
Project.
Section 13. Local Development Permits,
(a) The Development of the Amended 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 divisions 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 or co -applicant when applicable. Such approvals include,
without limitation, the following approvals and permits and any successor or
analogous approvals and permits:
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(i) Subdivision plat or waiver of plat approvals;
(ii) Covenant in Lieu of Unity of Title, Unity of Title, or Restrictive Covenant
acceptance or the release of existing unities or covenants;
(iii) Building permits;
(iv) Certificates of use;
(v) Certificates of occupancy;
(vi) Stormwater Permits;
(vii) DDRI approval, modification, or exemption; and
(vii) Any other official action of the City, County, or any other
government agency having the effect of permitting Development of the
Project.
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(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 (1) of the Properties shall be vested solely in the City
Manager's designee(s), with the recommendation of the Planning Director and
other departments, as applicable. 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
Amended 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 or
the Comprehensive Plan requires 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 Amended Property in accordance with the
Existing Zoning, the Comprehensive Plan, and this Agreement.
(b) Nothing herein shall prohibit an increase in the density or intensity
of Development permitted on the Amended Property in a manner
consistent with (i) the Existing Zoning or the Comprehensive Plan, (ii)
any zoning change subsequently requested or initiated by Swire in
accordance with applicable provisions of law, or (iii) any zoning change
subsequently enacted by the City.
(e) The expiration or termination of this Agreement shall not be considered a
waiver of, or limitation upon, the rights, including, but not limited to, any
claims of vested rights or equitable estoppel, obtained or held by Swire or its
successors or assigns to continue Development of the Amended Property in
conformity with Existing Zoning and all prior and subsequent Development
permits or Development orders granted by the City concerning this Project.
Section 17. Brickell Trolley. Swire acknowledges that the City is currently planning
to develop a trolley system which may traverse or abut the Project. Swire agrees to
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cooperate with the City so that any portion of the trolley route which runs through or
adjacent to the Project can be accommodated within the dedicated public rights -of -way.
The City agrees to evaluate whether at least one (1) northbound and one (1) southbound
trolley stop can be incorporated into the Project,
Section 18, Annual Review.
(a) Swire shall provide the City on an annual basis a status of the Project in
order for the City to conduct an annual review of the Development. This
requirement shall commence twelve (12) months after the Effective Date,
(b) During its annual review, the City may ask for additional information not
provided by Swire. Any additional information required of Swire during an
annual review shall be limited to that necessary to determine the extent to
which Swire is proceeding in good faith to comply with the terms of this
Agreement.
(e)
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 after a public hearing before the City Commission,
Section 19, Notices.
(a)
To the City:
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.
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 Avenue
9th Floor
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To Swire:
Miami, FL 33130
Stephen Owens
501 Brickell Key Drive
Suite 600
Miami, FL 33131
With a copy to:
(b)
Alterman LLP
Attn: Neisen Kasdin
1 SE 3rd Avenue
25t1i 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 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 Miami -Dade 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 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. Swire and the City agree that in the event all or any
part of this Agreement is struck down by judicial proceeding or preempted by legislative
action, Swire and the City shall continue to honor the terms and conditions of this
Agreement to the extent allowed by law.
Section 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 supersedes any prior agreements or understandings between the Parties with
respect to the subject matter hereof, including but not limited to the original Development
Agreement recorded October 24, 2011 and the Amended and Restated Development
Agreement recorded April 7, 2014, and no change, modification, or discharge hereof in
whole or in part shall be effective unless such change, modification, or discharge is in writing
{29253569;1}
Pap 14 of24
and signed by the party against whom enforcement of the change, modification, or discharge
is sought and recorded in the public records of the County. This Agreement cannot be
changed or terminated orally.
Section 25, Compliance with Applicable Law. Subject to the terms and conditions of
this Agreement, throughout the Term of this Agreement, Swire and the City shall comply
with all applicable federal, state, and 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 other 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) Swire shall be in default under this Agreement if 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
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.
{29253569;1}
Page 15 of 24
(e)
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. This section
does not absolve Swire of any of its obligations pursuant to the City Code should
it declare bankruptcy, including but not limited to ensuring that all construction
sites, buildings, structures, and excavation sites are safe.
(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 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, 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. Each party
shall bear its own attorney's fees in any such action.
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 Swire and its
heirs, successors, and assigns, including the successor to or assignee of any Amended 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 an Amended 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.
Any reference to Swire in this Agreement also applies to any heir, successor, or assignee of
Swire.
Section 33. Obligations Surviving Termination Ilereof, 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 (1) 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,
{29253569;1}
Page 16 of'24
Section 34, 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 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 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 Manager will
designate an individual 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 any permit
to the extent Swire does not comply with the applicable requirements of the
Existing Zoning, the Comprehensive Plan, this Agreement, applicable building
codes, and any other statute, ordinance, rule, or regulation.
Section 36, Enforcement,
(a) In the event that Swire, its successors, or assigns fails to act in accordance with
the terms of the Existing Zoning or this Agreement, the City shall seek
enforcement of said violation upon the subject Amended 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 his/her/its
attorney.
(0)
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 written agreement of Swire and the
(29253569;1 }
Page 17 of 24
City. Prior to any amendment or termination of this Agreement during its term, the City shall
hold two (2) public hearings before the City Commission to consider and deliberate such
amendment or termination. Any amendment or termination shall be recorded in the public
records of the County at Swire's sole cost.
Section 38. Third Party Defense. The 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, (iii) an action for declaratory judgment, or (iv) any claims for
loss, damage, liability, or expense (including reasonable attorneys' fees). The 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 39. 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 40. 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 41, Counterparts. This Agreement may be executed in two (2) 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 42. 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 ensure that Abutting Owners are compensated
for any actual damages which directly result from accidental loss of utility service caused by
Swire, its contractors, or subcontractors.
Section 43. Status. Upon request from time to time by Swire, or its successor, assigns, or any
mortgagee of Swire, its successor, or assign, the City shall deliver to such requesting party a
letter (in recordable form, if requested) stating whether the obligations of Swire or its successor
or assign under this Agreement are current and in good standing or have been satisfied. In the
event Swire or its successor or assign is not current in its obligations or such obligations are not
satisfied, said letter shall state the particular manner in which such person's obligations under this
Agreement are not current and in good standing or have not yet been satisfied.
Section 44. Estoppel. Within ninety (90) days of receipt of written request from a Developer
party, the City Manager or his designee, on behalf of the City, shall execute an estoppel
certificate or similar document, in form and substance reasonably acceptable to the City
Attorney, affirming Swire's compliance with the conditions set forth in the Agreement. Should
the City fail to execute the requested estoppel certificate within the aforementioned time period,
the City's non -response shall be presumed to indicate Swire's compliance with the terms of the
Agreement.
{29253569;1)
Page 18 of'24
NOW, WHEREOF, the City and Swire have caused this Agreement to be duly executed.
{29253569;1}
[Signature blocks for City and Swire on next page]
Page 19 of 24
ATTEST:
Print Name: ck.C/A !GA1.c 4(0)80-6.3
ATTEST:
OUMI60L/
Print Name: 1 ICY W I Ley)av(Jt
ATTEST:
Tod d'k , Hannon, City Clerk
APPROVED__AS TO FORM AND
COR \CTNE S:
Victoria Mende
City Attorney
{29253569;1}
BRICKELL CITY CENTRE PROJECT,
LLC, a Florida limited liability company as
Trustee under La•, d Trust No, BCC-2012
BY:
Print Name C I.
Title:
(Authorize1 Corpora "Officer)
Trustee Trustee executes this instrument solely as
Trustee under Land Trust No, BCC-2012
and not individually and no personal
recovery or judgment shall ever be sought
or obtained against Trustee by reason
hereof,
700 BRICKELL CITY CENTRE, LLC, a
Florida limite liability company
BY:
Print Name
Title:
(Authorized ate Officer)
noN
CITY OF MIAMI, a municipal corporation
BY: 442'
Daniel J. Ali iso, ity Manager
Page 20 of 24
Exhibit "A" (to Development Agreement)
Legal Description of the Amended Property
Brickell City Centre One BCC
LOT 1, LESS THE EASTERLY 5 FEET THEREOF, BLOCK 106A, OF MARY
BRICKELL'S ADDITION TO THE MAP OF MIAMI, ACCORDING TO THE PLAT
THEREOF, AS RECORDED IN PLAT BOOK "B", PAGE 113, OF THE PUBLIC
RECORDS OF MIAMI-DADE COUNTY, FLORIDA.
TOGETHER WITH:
LOTS 2, LESS THE EASTERLY 5 FEET THEREOF, AND ALL OF LOTS 3, 4, 12, 13,
BLOCK 106A, OF MARY BRICKELL'S ADDITION TO THE MAP OF MIAMI,
ACCORDING TO THE PLAT THEREOF, AS RECORDED IN PLAT BOOK "B", PAGE
113, OF THE PUBLIC RECORDS OF MIAMI-DADE COUNTY, FLORIDA.
TOGETHER WITH:
LOTS 14 AND 15, OF BLOCK 106A, OF MARY BRICKELL'S ADDITION TO THE
MAP OF MIAMI, ACCORDING TO TIIE PLAT THEREOF, AS RECORDED IN PLAT
BOOK "B", PAGE 113, OF THE PUBLIC RECORDS OF MIAMI-DADE COUNTY,
FLORIDA;
LESS AND EXCEPT THEREFROM THAT PART THEREOF CONVEYED TO THE
CITY OF MIAMI FOR STREET AND SIDEWALK PURPOSE PURSUANT TO THAT
WARRANTY DEED RECORDED IN OFFICIAL RECORDS BOOK 1790, PAGE 604, OF
THE PUBLIC RECORDS OF MIAMI-DADE COUNTY, FLORIDA, AND BEING MORE
PARTICULARLY THEREIN DESCRIBED AS FOLLOWS: BEGINNING AT THE
NORTHEASTERLY CORNER OF LOT 15, BLOCK 106A, OF TIIE AMENDED MAP OF
BRICKELL'S ADDITION TO THE MAP OF MIAMI, ACCORDING TO TIIE PLAT
THEREOF, AS RECORDED IN PLAT BOOK "B", AT PAGE 113, OF THE PUBLIC
RECORDS OF MIAMI-DADE COUNTY, FLORIDA; THENCE RUN SOUTHWARDLY
ALONG TIIE EASTERLY LINE OF LOTS 15 AND 14 OF SAID BLOCK 106A FOR A
DISTANCE OF 138 FEET, MORE OR LESS, TO THE SOUTHEASTERLY CORNER OF
SAID LOT 14; THENCE RUN WESTWARDLY ALONG THE SOUTHERLY LINE OF
SAID LOT 14 FOR A DISTANCE OF 30 FEET TO A POINT; THENCE RUN
EASTWARDLY, NORTHEASTWARDLY AND NORTHWARDLY ALONG TIIE ARC
OF A CURVE TO THE LEFT, HAVING A RADIUS OF 25 FEET, THROUGH A
CENTRAL ANGLE OF 89°59'50" WITH AN ARC DISTANCE OF 39.27 FEET TO A
POINT OF TANGENCY; THENCE RUN NORTHWARDLY ALONG A LINE 5 FEET
WEST OF AND PARALLEL WITH THE EASTERLY LINE OF SAID LOTS 14 AND 15
FOR A DISTANCE OF 113 FEET TO A POINT OF INTERSECTION WITH THE
NORTHERLY LINE OF SAID LOT 15; THENCE RUN EASTERLY ALONG TIIE
NORTHERLY LINE OF SAID LOT 15 FOR A DISTANCE OF 5 FEET TO TIIE POINT
(29253569;1)
Pago21 of24
OF BEGINNING, SAID LANDS SITUATE, LYING AND BEING IN MIAMI-DADE
COUNTY, FLORIDA,
AND TOGETHER WITH:
LOTS 5, 6, 8, 8 1/2, 9, 10 AND 11, BLOCK 106A, "AMENDED MAP OF BRICKELLS
ADDITION TO THE MAP OF MIAMI", ACCORDING TO THE PLAT THEREOF AS
RECORDED IN PLAT BOOK "B", PAGE 113 OF THE PUBLIC RECORDS OF DADE
COUNTY, FLORIDA, LESS THEREFROM A PORTION OF THE SOUTH 10 FEET OF
SAID LOT 9 (AS DEEDED TO TIIE CITY OF MIAMI IN OFFICIAL RECORDS BOOK
10551, PAGE 1004, OF TIIE PUBLIC RECORDS OF DADE COUNTY, FLORIDA), SAID
PORTION BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE MOST SOUTHWESTERLY CORNER OF SAID LOT 9, SAID
POINT OF BEGINNING BEING ALSO ON THE NORTH RIGHT-OF-WAY LINE OF
S.E. 8TH STREET; THENCE, ALONG THE WEST LINE OF SAID LOT 9, N,0°07'30"E,
FOR 10.00 FEET TO ITS INTERSECTION WITH THE NORTH BASE BUILDING LINE
OF SAID S.E. 8TH STREET; THENCE, ALONG SAID BASE BUILDING LINE, EAST
FOR 10.61 FEET TO ITS INTERSECTION WITH THE NORTHWESTERLY
EXTENSION OF THE SOUTH LINE OF BLOCK 106A; THENCE, ALONG SAID
SOUTH LINE OF SAID BLOCK 106A, S.74°39'31 "E. FOR 37,80 FEET TO A POINT ON
THE NORTHERLY RIGHT-OF-WAY LINE OF SAID S.E. 8TH STREET; THENCE,
ALONG SAID RIGHT-OF-WAY LINE AND ALONG THE SOUTH LINE OF SAID LOT
9, WEST FOR 47.08 FEET TO THE POINT OF BEGINNING,
{29253569;1)
Page 22 of 24
EXHIBIT "B" (to Development Agreement)
INSURANCE REQUIREMENTS
BRICKELL CITY CENTRE PROJECT LLC-SWIRE
I. Commercial General Liability (Primary & Non Contributory)
A. Limits of Liability
Bodily Injury and Property Damage Liability
Each Occurrence $1,000,000
General Aggregate Limit $2,000,000
Products/Completed Operations S1,000,000
Personal and Advertising Injury $1,000,000
B. Endorsements Required
City of Miami listed as an additional insured
Contingent & Contractual Liability
Premises & Operations Liability
Explosion, Collapse and Underground Hazard
Primary Insurance Clause Endorsement
II. Business Automobile Liability
A. Limits of Liability
Bodily Injury and Property Damage Liability
Combined Single Limit
Any Auto/Owned Autos/Scheduled
Including Hired, Borrowed or Non -Owned Autos
Any One Accident
B. Endorsements Required
City of Miami listed as an additional insured
III, Worker's Compensation
Limits of Liability
Statutory -State of Florida
Waiver of subrogation
Employer's Liability
A. Limits of Liability
(29253569;1}
Page23 of 24
$1,000,000
This instrument Prepared by and
after Recording Return To:
T. Spencer Crowley, Esq.
Akerman LLP
1 SE Third Avenue, 25th Floor
Miami, FL 33131
SECOND AMENDED AND RESTATE
DEVELOPMENT AGREEMENT BETWEEN T
CITY OF MIAMI, FLORIDA AND BRICI LL
CITY CENTRE PROJECT LLC AN /, 700
BRICKELL CITY CENTRE LLC, REING
DEVELOPMENT OF THE BRICKED CITY
CENTRE PROJECT
THIS AGREEMENT is entered this day of / , 2014, and effective
as of the Twenty Seventh (27th) day of March, 2014 y and between BRICKELL CITY
CENTRE PROJECT LLC, a Florida for profit co oration and 700 BRICKELL CITY
CENTRE LLC (together known as "Swire"), anthe CITY OF MIAMI, FLORIDA, a
municipal corporation and a political subdivision f the State of Florida ("City") (Swire and
the City together referred to as the "Parties").
WITNE'SSETH:
WHEREAS, Swire held fee simpl title to approximately nine (9) acres of property in
the Brickell area of downtown Miami (" riginal Property"); and
WHEREAS, the Original Property was more specifically located south of the Miami
River, west of Brickell Avenue, nor h of SW 8th Street, and east of NW 1st Avenue; and
WHEREAS, the Originaj Property spanned four (4) city blocks and was located
between two (2) mass transit limes; and
WHEREAS, the Original Property was currently underutilized in that it
predominantly consisted of/acant, undeveloped lots secured by chain link fencing; and
WHEREAS, the tatus of the Original Property was inconsistent with the City's
vision to develop a wolld class downtown, and the City wished to encourage redevelopment
of the Property; and /
/
WHEREAS§; Swire wished to redevelop the Original Property as a higher
density, mixed- //se, pedestrian oriented, urban development known as Brickell City
Centre which ould provide much needed retail for the Brickell and Downtown area of
Miami ("Proj� t"); and
1
WHEREAS, in order to maximize efficiency and design of Brickell City Centre, Swire
desired to construct two (2) levels of underground parking; and
WHEREAS, a process existed within the City's zoning code ("Miami 21") which
allows parcels of more than nine (9) 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; and
r
WHEREAS, the result of this master planning process is known as a "Special Area
Plan" or "SAP"; and
WHEREAS, on July 28, 2011, the City approved an SAP for the Project;/and
WHEREAS, Miami 21 requires development within an SAP to be governed by a
Development Agreement between the property owner and the City; and
WHEREAS, on October 24, 2011, Swire recorded a Development greement for the
Project; and
WHEREAS, on March 28, 2013, the City approved an amend ent to the SAP for
the Project to include a city block known as "N2" and also ap roved an amended
Development Agreement; and
WHEREAS, on , , Swire recorded the
Development Agreement for the Project; and
ended and Restated
WHEREAS, Swire recently acquired additional propert/ located between SE 7th
Street and SE 8th Street, lying west of Brickell Avenue and lyi east of the "BCC Plaza"
site, known as "One BCC", consisting of approximately 67,449 s . ft. (1.55 acres); and
WHEREAS, Swire is now the owner of all of the prope ties described in the original
Development Agreement dated October 24, 2011, the Amend, d and Restated Development
Agreement dated , 2014 and the additional properties described herein
("Amended Property," sketch and legal descriptions of which are attached as Exhibit "A");
and
WHEREAS, the One BCC block has been rezoned from a mixture of T6-48B-O and T6-
48A-O to the Brickell City Centre SAP with an underlying Transect Zone of T6-48B-O; and
WHEREAS, the City and Swire wish to amend the Development Agreement for Brickell
City Centre to include the One BCC block in order to encourage redevelopment of the Amended
Property and effectuate the Project; and
WHEREAS, this Amended and Restated Development Agreement ("Agreement")
supersedes the Development Agreement which was recorded on October 24, 2011 and also
2
supersedes the Amended and Restated Development Agreement which was recorded/ on
, 920 and satisfies the requirement set forth in Miami 21; and
WHEREAS, the City and Swire wish for development of the Project to proceed
substantially in accordance with the Regulating Plan as amended and Design Gui j elines
adopted on July 28, 2011, March 28, 2013, and March 27, 2014 and kept on file with y e City
and known as 11-00380ap and 11-00380ap1 ("Regulating Plan and Design Guideline"); and
WHEREAS, the Amended Property is designated Restricted Comerciwit
h an
Urban Central Business District Overlay, in the Miami Comprehensive
Neighborhood Plan ("Comprehensive Plan"); and
WHEREAS, the City and Swire wish for development of the Project tS proceed in a
manner which is consistent with the Comprehensive Plan; and
WHEREAS, the Project is located in the Downtown Development oj7`Regional Impact
("DDRI"); and
WHEREAS, as of the Effective Date, the DDRI has sufficient development capacity to
accommodate the Project and Swire has reserved such capacity throu i appropriate means
with the City; and
WHEREAS, the lack of certainty in the approval of develop ant can result in a waste
of economic and land resources, discourage sound capital imp ovement planning and
financing, escalate the cost of housing and development, and di courage commitment to
comprehensive planning; and
WHEREAS, assurance to a developer that it may proceed in accordance with
existing laws and policies, subject to the conditions of a develop cent agreement, strengthens
the public planning process, encourages sound capital improvement planning and financing,
assists in assuring there are adequate capital facilit'es for the development,
encourages private participation in comprehensive planning, �ind reduces the economic costs
of development; and
WHEREAS, the City Commission, pursuant to Ordiiiance No. adopted March
27, 2014, has authorized the City Manager to execute this/Agreement upon the terms and
conditions as set forth below; and
WHEREAS, 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:
3
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 singul i;
(c) A pronoun in one gender includes and applies to other genders as well;/
(d) The terms "hereunder", "herein", "hereof', "hereto", and such similar term shall refer
to the instant Agreement in its entirety and not to individual sections or a icles;
(e) The Parties hereto agree that this Agreement shall not be more str i6tly construed
against either the City or Swire, as all Parties are drafters of this Agree cent; and
(f) The recitals are true and correct and are incorporated into and m de a part of this
Agreement. The attached exhibits shall be deemed adopted and ii} orporated into the
Agreement; provided, however, that this Agreement shall be deer} ed to control in the
event of a conflict between the exhibits and this Agreement.
Section 3. Definitions. Capitalized terms which are not specifical1l'y 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 co poration and a political
subdivision of the State of Florida, and all deg artments, 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
4
land into three (3) 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 version of this
Agreement.
"Existing Zoning" means the zoning designation and regulations of the Mi. mi
21 Code, City Charter, and City Code in effect as of October 24, 2011 w ich
comprise the effective land development regulations governing development o f 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 surf: ce and
includes any improvements or structures customarily regarded as land.
"Laws" means all ordinances, resolutions, regulations, comprehensive p lans, land
development regulations, and rules adopted by a local or state government . feeling the
development of land.
Section 4. Purpose. The purpose of this Agreement is for the City to au. Zorize Swire
to develop the Project pursuant to the Brickell City Centre SAP. This Igreement will
establish the land Development regulations, referred to as the "Existing Zo ng" which will
govern Development of the Project, thereby providing the Parties with ad litional certainty
during the Development process. This Agreement also satisfies Section 3.9..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 Ci Centre SAP, this
Agreement, the Comprehensive Plan and the Florida Local Gover ment Development
Agreement Act, Section 163.3220 - 163.3243, Florida Statutes (2010) Existing Zoning, and
City Code.
Section 6. Applicability. This Agreement only applies to the Pro
Section 7. Term of Agreement Effective Date and Binding Effect. This Agreement
shall have a term of thirty (30) years from the Effective Date a d shall be recorded in the
public records of Miami -Dade County and filed with the C 'y 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 Ag eement shall become effective
on the Effective Date and shall constitute a covenant running w th 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 I tensities.
(a) Brickell City Centre SAP Designation. The City has designated the
Amended Property as Brickell City Centre SAP on the official zoning Atlas of
the City, pursuant to the applicable procedures in Miami 21. The Regulating
5
(b)
(c)
(d)
Plan and Design Guidelines are attached as Exhibit "B". In approving the
Brickell City Centre 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.
Density, Intensity, Uses, and Building Heights.
(i)
As of the Effective Date and pursuant to the Brickell City Centre SAP, t e
density proposed for the Amended Property is approximately 124 u its
per acre, and the intensity proposed for the Amended Propert r is
measured by an above -ground Floor Lot Ratio of approximately /18.0
(specifically excluding underground parking and circulation).
r
(ii) The non-residential Development permitted on the Amended P /operty
includes, but is not limited to, the following uses: office, hotel retail,
entertainment, medical office, academic space, and any of 'er uses
permitted by the Existing Zoning.
(iii) As of the Effective Date and pursuant to the Brickell City Centre SAP, the
maximum height proposed for the Project is 1,049 feet (abo e mean sea
level), and the maximum height proposed for the Pedestal is 160 feet for
the One BCC and N2 blocks and 129 feet for all other blocks.
(iv) Nothing herein shall prohibit Swire from requesting an ncrease in the
density or intensity of Development permitted on the A ended Property,
as long as such increase in density or intensity is c sistent with the
Comprehensive Plan, Existing Zoning, the SAP, and is Agreement as
it exists on the Effective Date.
Environmental. The City finds that the Project will onfer a significant
net improvement upon the publicly accessible tree ca opy in the area. The
City and Swire agree that Swire will comply with the i tent and requirements
of Chapter 17 of the City Code. Any tree replaceme shall be within one (1)
mile of the Project, with an emphasis along 7th Str et, 8th Street, and South
Miami Avenue. The City agrees to facilitate the ermitting and planting of
replacement trees on all publicly owned properties in his area.
Archaeological. Because of the Project's loca Pion in a high probability
archaeological zone, Swire is required to obtain certificate to dig prior to any
ground disturbing activities. However, in n case shall the City require
archaeological monitoring during excavation f 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.
6
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 requi e
approval of other governmental agencies such as Miami -Dade County and t e
Florida Department of Transportation. The City finds and determines that
establishing such connectivity and commercial usage serves a public pu ose,
and the City agrees to support Swire's efforts to obtain any authorizatin to
establish such connectivity and commercial usage.
The City finds that the authorization of such uses within the public fight -of -
way will have no adverse effects on the provision of natura light or
circulation of air, or increase the adverse effects resulting // rom fire,
floods, tornadoes, and hurricanes. It is further found that the ;presence of
such uses within the public rights -of -way shall in no way diminj./sh access for
firefighting apparatus or rescue and salvage operations; d� ninish traffic,
transportation, and circulation; or adversely impact the adv cement 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 wiy(iin the Brickell City
Centre SAP. /
(b) Construction of encroachments within the Public Right -of -Way. The City finds
that the proposed encroachments do not unduly res Tict the use of the public
right-of-way and is a necessary and essential eleine t in the construction of the
pedestrian walkways above the public rig r is -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 and in anticipation of the amended SAP being
approved and adopted by the City Commission in the spring of 2014, Swire
further covenants to:
7
(c)
(i) Maintain the above -grade pedestrian walkways and below -grade vehicular
underpasses in accordance with the Florida Building Code, the City;
Charter, the City Code, and any other applicable federal, state, or 1oca1
statutes, laws, rules, orders, or regulations.
(ii) Provide an insurance policy, in an amount determined by the C'�ty's
Risk Management Department, naming the City as an additional in
for public liability and property damage. The insurance shall remain in
effect for as long as the encroachment(s) exist in the public right-of-
way. Should Swire fail to continue to provide the insurance coverage,
the City shall have the right to secure a similar insurance poicy in its
name and place a special assessment lien against the owners abutting
Swire and all properties subject to this Agreement for t e total cost
of the premium.
Swire shall hold harmless and indemnify the City; its officials,
and its 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 ped=strian walkways
and vehicular underpasses and from and against any claims which may
arise out of the granting of permission for the en roachment or any
activity performed under the terms of this Agreeme o t.
Activity within the Public Right -of -Way. Notwithsta ding the limitations
set forth in Sec. 54-186 of the City Code, the Ci shall permit Food
Service Establishment(s) and General Commercial uses, . s defined in Miami 21,
in the above -grade pedestrian walkways located within the public right-of-
way, following approval by SAP Permit.
(d) Extension of SE 1st Avenue/Brickell Plaza. Due to the public benefits of the
Project as enumerated in Section 8(b)(5) of this Agr ement, the extension of SE
1st Avenue/Brickell Plaza through the One BCC sit , as originally contemplated
by Resolutions 83-1054 and 90-942, is no longe necessary as evidenced by
approval of the first Agreement on July 28, 2011, /he first Amended Agreement
on March 28, 2013 and this Second Amended Ageement.
(e) Easement, Insurance, and Indemnification. S ire has previously executed a
construction easement with the City's Public orks Department and included
insurance and indemnification language in s, tid construction easement. The
language is incorporated into this Agreement by reference.
Section 10. Project Approval.
(a)
Future Development Review. Future Development within the Brickell City
Centre SAP shall proceed pursuant to the process established in the Regulating
8
Plan and Design Guidelines and shall be consistent with the Comprehensive
Plan, this Agreement, and the Brickell City Centre SAP.
(b) Prohibition on Downzoning.
(i)
(i)
The Comprehensive Plan, this Agreement, and the Brickell City Centre
SAP shall govern Development of the Amended Property for the
duration of the Agreement. The City's laws and policies adopted afte
the Effective Date may be applied to the Amended Property only if t , e
determinations required by Section 163.3233(2), Florida Statutes (2� 0)
have been made after thirty (30) days written notice to Swire and after a
public hearing.
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, wire may
challenge any subsequently adopted changes to land Development
regulations based on (A) common law principles inclu . mg, but not
limited to, equitable estoppel and vested rights, or (B) atutory rights
which may accrue by virtue of Chapter 70, Florida Statut s (2010).
(c) Development of Regional Impact.
(i)
The City and Swire agree that as of the Effective Date, sufficient
capacity remains under the DDRI to acconnnodat the Project and that
Swire has reserved the capacity necessary to devel p the Project.
(ii) The City agrees that any DRI Development order which the City
adopts after the Effective Date and which plies to the Amended
Property will (A) be consistent with this Agr einent and the Brickell
City Centre SAP and (B) include a Use/I ensity conversion table to
allow for a reasonable level of flexibility w' h respect to the mix and
intensity of uses in order to respond to c, anging market conditions.
(iii) The City agrees that if the Miami Dow down Development Authority
("DDA") decides to abandon, terminat , rescind, or otherwise render
ineffective the DDRI Development O der, Swire shall no longer be
responsible for payment of DDRI fee . Further, if the DDA decides to
abandon, terminate, rescind, or other/ ise 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 and Entertainment Specialty District
Designation. Pursuant to Chapter 4 of the City . Code, each block of the five -block
9
Project is designated as a retail specialty center and each block is designated as an
entertainment specialty district.
Any establishments located within the Project shall be entitled to the benefits afforded to
establishments in a retail specialty center and entertainment specialty district, as codified by
l//
Chapter 4 of the City Code. Notwithstanding the requirements of Sec. 4-3.2 of the City Code
PZAB and City Commission approval shall not be required for alcohol establishments s
principal uses proposed to be located within the Project.
Each alcohol establishment within the Project shall not count towards the maximum numbd'r of
establishments in the Brickell Riverside Entertainment District. Each alcohol establisinent
within the Brickell Riverside Entertainment District shall not count towards the ma imum
number of establishments within the Project.
The maximum number of establishments selling alcoholic beverages permitted within the
Project's retail specialty centers and entertainment specialty districts shall not exceed rive (5) per
block, exclusive of any bona fide, licensed restaurants where the sale of alcoholic e everages is
entirely incidental to and in conjunction with the principal sale of food (e.g. bona de, licensed
restaurants with a 2-COP, 2-COP SRX, 4-COP, 4-COP SRX or equivalent license). However,
the maximum number of establishments classified as nightclubs (as defined by Ch. .ter 4, Article
I of the City Code) shall not exceed two (2) per block, unless otherwise appro ed by an SAP
Permit.
The total number of alcohol establishments (exclusive of any bona fide, lic nsed restaurants
where the sale of alcoholic beverages is entirely incidental to and in co unction with the
principal sale of food) shall not exceed twenty-five (25) for the entire SA". The number of
approved establishments may be increased by amendment to this Agreement before the City
Commission.
Section 12. Job Creation. Swire shall consult with local and state e•onomic Development
entities regarding job training and job placement services to City reside r is seeking employment
opportunities with potential employers which will locate or establ sh business within the
Project.
Section 13. Local Development Permits.
(a) The Development of the Amended 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 divisions thereof. Subject to required legal process and
approvals, the City shall make a good faith ffort to take all reasonable
steps to cooperate with and facilitate all su h approvals, including acting
as an applicant when applicable. Such approvals include, without limitation,
the following approvals and permits and any successor or analogous approvals
and permits:
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(i) Subdivision plat or waiver of plat approvals;
(ii) Covenant in Lieu of Unity of Title, Unity of Title, or Restrictive Covenant
acceptance or the release of existing unities or covenants;
(iii) Building permits;
(iv) Certificates of use;
(v) Certificates of occupancy;
(vi) Stormwater Permits;
(vii) DDRI approval, modification, or exemption; and
(viii) Any other official action of the City, County, or any other
government agency having the effect of permitting Developme t of the
Project.
(b) In the event that the City substantially modifies its land Development
regulations regarding site plan approval procedures, authority to .pprove any
site plan for a project on one (1) of the Properties shall be vested sol-ly in the City
Manager, with the recommendation of the Planning Director. ny such site
plan shall be approved if it meets the requirements and criteri of the Existing
Zoning, the Comprehensive Plan, and the terms of this Agreem nt.
Section 14. Consistency with Comprehensive Plan. The City finds that Development of the
Amended Property in conformity with the Existing Zoning is c nsistent with the
Comprehensive Plan. As of the Effective Date, Swire is conducting an tensive analysis of
the Public Facilities available to serve the Project. In the event that th Existing Zoning or
the Comprehensive Plan requires Swire to provide additional Public Facilities to
accommodate the Project, Swire will provide such Public Faciliti s consistent with the
timing requirements of Section 163.3180, Florida Statutes (2010). ire 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.
11
(a) For the term of this Agreement, the City hereby agrees that it shall permit
the Development of the Amended Property in accordance with
Existing Zoning, the Comprehensive Plan, and this Agreement.
the
(b) Nothing herein shall prohibit an increase in the density or inte sity
of Development permitted on the Amended Property in a m nner
consistent with (i) the Existing Zoning or the Comprehensive Pla , (ii)
any zoning change ' subsequently requested or initiated by S ire in
accordance with applicable provisions of law, or (iii) any zoning change
subsequently enacted by the City.
(c) The expiration or termination of this Agreement shall not be Vonsidered a
waiver of, or limitation upon, the rights, including, but not liited to, any
claims of vested rights or equitable estoppel, obtained or held y Swire or its
successors or assigns to continue Development of the Amen ed Property in
conformity with Existing Zoning and all prior and subsequ • nt Development
permits or Development orders granted by the City concerning his Project.
Section 17. Brickell Trolley. Swire acknowledges that the City is ;urrently planning
to develop a trolley system which may traverse or abut the Projek. Swire agrees to
cooperate with the City so that any portion of the trolley route w . ich runs through or
adjacent to the Project can be accommodated within the dedicated public rights -of -way.
The City agrees to evaluate whether at least one (1) northbound a , d one (1) southbound
trolley stop can be incorporated into the Project.
Section 18. Annual Review.
(a) Swire shall provide the City on an annual basis a status of the Project in
order for the City to conduct an annual review i f the Development. This
requirement shall commence twelve (12) months after the Effective Date.
(b) During its annual review, the City may ask for additional information not
provided by Swire. Any information required of Swire during an annual
review shall be limited to that necessary to 6 etermine the extent to which
Swire 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 after a public hearing.
Section 19. Emergency Management. Swire shall ensure public safety and protection of the
property within the coastal zone from the threat of hurricanes. The Project is within the
Coastal High Hazard Area (CHHA) as depicted in the Map and Appendix CM-1 of the
MCNP. Swire will review the Development's potential impact on evacuation tunes and
shelter needs in the event of a hurricane or any other natural disaster. Swire will advise
12
the City at the time of receipt of any Certificate of Occupancy or Temporary Certificate
of Occupancy of the status of the evacuation times and shelter needs and how Swire
will address any short comings.
Section 20. Notices.
(a) All notices, demands, and requests which may or are required tab 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 Part'ts at the
addresses listed below. Any notice given pursuant to this Agreement shall be
deemed given when received. Any actions required to be take hereunder
which fall on Saturday, Sunday, or United States legal holidays sh 11 be deemed
to be performed timely when taken on the succeeding day therea er 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:
To Swire:
City Attorney
Miami Riverside Center
444 S.W. 2nd Avenue
9th Floor
Miami, FL 33130
Stephen Owens
501 Brickell Key Drive
Suite 600
Miami, FL 33131
With a copy to:
(b)
Akerman LLP
Attn: Neisen Kasdin
1 SE 3'd 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.
13
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 th9.
enforcement of this Agreement or any provision hereof shall be instituted only in the courts off
the State of Florida or federal courts and venue for any such actions shall lie exclusively/in
a court of competent jurisdiction in Miami -Dade 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 waiveo any
defense, whether asserted by motion or pleading, that the aforementioned courts an
improper or inconvenient venue. Moreover, the Parties consent to the personal juris - iction
of the aforementioned courts and irrevocably waive any objections to said jurisdicti n. 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 egislative
action, Swire and the City shall continue to honor the terms and conditi, ns of this
Agreement to the extent allowed by law.
Section 22. No Oral Change or Termination. This Agreement and the exhibits
and appendices appended hereto and incorporated herein by reference, if an , constitute the
entire Agreement between the Parties with respect to the subject matt r hereof. This
Agreement supersedes any prior agreements or understandings between he Parties with
respect to the subject matter hereof, including but not limited to the origi i al Development
Agreement recorded October 24, 2011 and the Amended and Restat d Development
Agreement recorded , and no change, modification, or di charge hereof in
whole or in part shall be effective unless such change, modification, or dis arge is in writing
and signed by the party against whom enforcement of the change, modific, tion, or discharge
is sought. This Agreement cannot be changed or terminated orally.
Section 23. Compliance with Applicable Law. Subject to the term and conditions of
this Agreement, throughout the Term of this Agreement, Swire and th City shall comply
with all applicable federal, state, and local laws, rules, regulations,I codes, ordinances,
resolutions, administrative orders, permits, policies and procedures, a d 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, enfofrceable 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
14
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 o
this Agreement shall constitute a waiver of any subsequent breach of the same or any othe
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 ev nts
occur and continue beyond the applicable grace period: Swire fails to perfo or
breaches any term, covenant, or condition of this Agreement which is not 9 red
within thirty (30) days after receipt of written notice from the City specifyi Ig the
nature of such breach; provided, however, that if such breach cannot reas ably
be cured within thirty (30) days, then Swire shall not be in default if it cot ences
to cure such breach within said thirty (30) day period and diligently pro ecutes
such cure to completion.
(b) The City shall be in default under this Agreement if the City fails to p rform 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 fro a Swire
specifying the nature of such breach; provided, however, that if s ch breach
cannot reasonably be cured within thirty (30) days, the City shall not e 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 dec'ared bankrupt
by a court of competent jurisdiction. All rights and obligations in is Agreement
shall survive such bankruptcy of either party. The Parties hereby 'orfeit any right
to terminate this Agreement upon the bankruptcy of the other pa y. This section
does not absolve Swire of any of its obligations pursuant to the lity Code should
it declare bankruptcy, including but not limited to ensuring tha all construction
sites, buildings, structures, and excavation sites are safe.
(d) The default of a successor or assignee of any portion of Swire' rights hereunder
shall not be deemed a breach by Swire.
Section 28. Remedies Upon Default.
(a)
Neither party may terminate this Agreement upon the defaul 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 $pecific performance
15
shall not waive any right of such party to also seek monetary ,barrages, 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. Each party shall
bear its own attorney's fees in any such action.
Section 29. Severability. If any term or provision of this Agreement fir 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 off such term or provision to
persons or circumstances other than those as to which it is held invaliq or unenforceable shall not
be affected thereby and shall continue in full force and effect.
Section 30. Assignment and Transfer. This Agreement shall ' e binding on Swire and its
heirs, successors, and assigns, including the successor to or assig ee of any Amended Property
Interest. Swire, at its sole discretion, may assign, in whole or in art, this Agreement or any of
its rights and obligations hereunder, or may extend the benefits o this Agreement, to any holder
of an Amended Property Interest without the prior written cons .nt or any other approval of the
City. Any such assignee shall assume all applicable rights and o ligations under this Agreement.
Any reference to Swire in this Agreement also applies to an; heir, successor, or assignee of
Swire.
Section 31. Obligations Surviving Termination Hereof. No withstanding and prevailing over
any contrary tern or provision contained herein, in the even of any lawful termination of this
Agreement, the following obligations shall survive such ter ination and continue in full force
and effect until the expiration of a one (1) year term followin the earlier of the effective date of
such termination or the expiration of the Term: (i) the e elusive 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 ermination or expiration hereof or is
or may be applicable or effective beyond the expiration or p, rmitted early termination hereof.
Section 32. Lack of Agency Relationship. Nothing c , ntained herein shall be construed as
establishing an agency relationship between the City d Swire and neither Swire nor its
employees, agents, contractors, subsidiaries, divisions, ffiliates, or guests shall be deemed
agents, instrumentalities, employees, or contractors of th City for any purpose hereunder, and
the City, its contractors, agents, and employees shall of 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
16
multiple permitting packages, such as those for excavation, site work and
foundations, building shell, core, and interiors. In addition, the City Manager will
designate an individual 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 Swire does not comply with the applicable
requirements of the Existing Zoning, the Comprehensive Plan, this Agreement,
applicable building codes, and any other statute, ordinance, rule, or regulation.
Section 34. Enforcement.
(a) In the event that Swire, its successors, or assigns fails to act in accordance/with
the terms of the Existing Zoning or this Agreement, the City shall/ seek
enforcement of said violation upon the subject Amended Property.
(b) Enforcement of this Agreement shall be by action against any Parties ®r person
violating, or attempting to violate, any covenants set forth in this Agree ent. The
prevailing party in any action or suit pertaining to or arising out of this greement
shall be entitled to recover, in addition to costs and disbursements allo ' ed by law,
such sum as the court may adjudge to be reasonable for the services v f his/her/its
attorney.
(c)
This enforcement provision shall be in addition to any other remed}es available at
law, in equity, or both.
Section 35. Amendment or Termination by Mutual Consent. This Agree ent may not be
amended or terminated during its term except by mutual written agreement / f Swire and the
City. Prior to any amendment or termination of this Agreement during its to n, the City shall
hold two (2) public hearings before the City Commission to consider aid deliberate such
amendment or termination.
Section 36. Third Party Defense. The City and Swire shall each, at heir own cost and
expense, vigorously defend any claims, suits, or demands brought against em by third parties
challenging the Agreement or the Project, or objecting to any aspect there f, including, without
limitation, (i) a consistency challenge pursuant to Section 163.3215, Floriclia Statutes (2010), (ii)
a petition for writ of certiorari, (iii) an action for declaratory judgment, , r (iv) any claims for
loss, damage, liability, or expense (including reasonable attorneys' fees): The 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.
17
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 (2) 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.
Section 41. Status. Upon request from time to time by Swire, or its successor, assigns, or ally
mortgagee of Swire, its successor, or assign, the City shall deliver to such requesting party a
letter (in recordable form, if requested) stating whether the obligations of Swire or its succ ssor
or assign under this Agreement are current and in good standing or have been satisfied. If' the
event Swire or its successor or assign is not current in its obligations or such obligations re not
satisfied, said letter shall state the particular manner in which such person's obligations ui der this
Agreement are not current and in good standing or have not yet been satisfied.
Section 42. Estoppel. Within ninety (90) days of receipt of written request from
party, the City Manager or his designee, on behalf of the City, shall execute
certificate or similar document, in form and substance reasonably acceptable
Attorney, affirming Swire's compliance with the conditions set forth in the Agree
the City fail to execute the requested estoppel certificate within the aforementione
the City's non -response shall be presumed to indicate Swire's compliance with tl}�e
Agreement.
a ' eveloper
iestoppel
o the City
ent. Should
time period,
terms of the
NOW, WHEREOF, the City and Swire have caused this Agreement to lie duly executed.
[Signature blocks for City and Swire on next page]
18
ATTEST: SWIRE PROPERTIES, INC, a Florida for
Profit Corporation
BY:
Print Name: Print Name
(Corporate Seal)
ATTEST:
Title:
(Authorized Corporate Officer
CITY OF MIAMI, a municipal corporation
r
BY: r
Todd B. Hannon, City Clerk Daniel J. Alfonso, City Malfager
APPROVED AS TO FORM AND
CORRECTNESS:
Victoria Mendez
City Attorney
19
20
Exhibit "A" (to Development Agreement)
Legal Descriptions of the Property
Brickell CityCentre North
Lots 1 through 6, the West half of Lot 7, and Lots 9-14, Block 107S, of Patterson and
Olive Subdivision, according to the map or Plat Book B, at Page 77, of the public records
of Miami -Dade County, Florida.
Less and except that portion of the above described parcel conveyed by right-of-way
deed records in Official Records Book 26161, Page 1547, public records of Miami -Dade
County, Florida.
Together with;
Brickell CityCentre East
Lots 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, and 15, in Block 106S, of S.1. & J.B.
Patterson and J.F. and B.T. Olive Subdivision, according to the plat thereof as recorded in
Plat Book B, at Page 77, of the public records of Miami -Dade County, Florida.
Less:
Those portions of lots 1, 9, 10, 11, 12, 13, 14, and 15, block 106S, of the S.1. & 3. Patterson
and J.F. and B.T. Olive Subdivision, according to the plat book thereof as reco rded in Plat Book
B, at Page 77, of the public records of Miami -Dade County, Florida, lying in ection 38,
Township 54 South, Range 41 East, and more particularly described as folio s:
Begin at the southwest corner of said Lot 9; thence run NO2°16'51" W alon the westerly
boundary of said Lots 9 and 1, for a distance of 299.90 feet to the point of i tersection with the
northerly boundary of said Lot 1; thence run N87°47'15" E along said no erly boundary of Lot
1 for a distance of 30.03 feet to a point of cusp and curvature of a circular curve concave to the
southeast and having a radius of 25.00 feet and a tangent bearing of S87° 5'49" W; thence
turning 180°, run westerly, southwesterly and southerly along said curve to the left through a
central angle of 90°04'06" for an arc length of 39.30 feet to a point of to gency on a line that is
5.00 feet easterly and parallel with the westerly boundary of said Lots 1 and 9; thence run
S02°16'51" E along said line that is 5.00 feet easterly and parallel to sa d westerly boundary of
Lots 1 and 9, for a distance of 234.80 feet to the point of beginning of circular curve concave to
the left, through a central angle of 90°07'20" for an arc distance of 39. 2 feet to the point of
tangency and a point on a line that is 15.00 feet northerly and parallel i ith the southerly
boundary of said Lots 9, 10, 11, 12, 13, 14, and 15; thence run N87°35'49" E along said line that
is 15.00 feet northerly and parallel to the southerly boundary of Lots 9, 10, 11, 12, 13, 14, and
15, for a distance of 319.95 feet to a point on the easterly boundary of said Lot 15; thence run
21
S02°16'51" E along said easterly boundary of said Lot 15, for a distance of 15.00 feet to the
southeast corner of said Lot 15; thence run S87°35'49" W along said southerly boundary of Lots
9, 10, 11, 12, 13, 14, and 15, for a distance of 350.00 feet to the point of beginning.
Together with;
Brickell CityCentre West
Lots 1, 2, 3 in block S3S, of amended Plat Book 38A and the North 1/2 of Block 53S City of
Miami, according to plat thereof as recorded in Plat Book 1, at Page 74, of the public records of
Miami -Dade County, Florida.
And:
Lots 4, 5, 6, 7, 8, 9, 16, 17, 18, 19, 20, 21, 22, 23, and 24, in Block 53S, of map of Miami -Dad,,
County, Florida; less the South 10 feet of the West 55 feet of said Lot 22 and less the South
10.00 feet of said Lots 16,17, 19, 20, and 21.
Less:
That portion of Lot 22, Block 53S, of the map of Miami -Dade County, Florida, according to the
plat thereof as recorded in Plat Book B, at Page 41, of the public records of Miami -Dade ounty,
Florida, and being more particularly described as follows:
Begin at the point of intersection of the northerly right of way line of S.W. 8th Street with the
westerly right of way of S. Miami Avenue as shown on the Florida Depaitiiient of Tra sportation
right of way maps for Section 87120-2513; thence run South 87°42'43" West along s id
northerly right of way line for a distance of 25 feet to the point of beginning of a cir9 lar curve
concave to the northwest and having for its elements a radius of 25.00 feet and a toll/gent bearing
of North 87°42'43" East; thence run northeasterly, northerly, and northwesterly al Ong the arc of
said circular curve to the left, through a central angle of 89°59'34" for a distance f 39.27 feet to
the point of tangency and a point of said westerly right of way line; thence run S th 02° 16' 51"
East along said westerly right of way line for a distance of 25.00 feet to the poi ntiof beginning,
Per right of way dedication, recorded in Official Records Book 12159, page 4e'2 of the public
records of Miami -Dade County, Florida.
Parcel ii:
The East 50 feet of Lots 10, 11, and 12 in Block 53A, amended plat of Blacks 38A and the North
half of Block 53S City of Miami, according to the plat thereof as recordea in Plat Book 1, at
Page 74, of the public records of Miami -Dade County, Florida.
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Parcel iii:
The East 50 feet of Lots 13, 14, and 15, Block 53S, map of Miami -Dade County, Florida,
visi /
according to the plat thereof as recorded in Plat Book B, at Page 41, of the public records of
Miami -Dade County, Florida, less the South 10 feet thereof.
Together with;
Brickell CityCentre N2
Lots 1 through 7, in Block 108 South, of S.1. & J.B. Patterson and J.F. & B.T. Olive Subdi
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 pylblic
records of Miami -Dade County, Florida.
Together with;
One BCC
Lot 1, Less the Easterly 5 feet thereof, Block 106A, of MARY BRICKELL'S ADDITION TO
THE MAP OF MIAMI, according to the Plat thereof, as recorded in Plat Book "B', Page 113, of
the Public Records of Miami -Dade County, Florida.
TOGETHERWITH:
Lots 2, Less the Easterly 5 feet thereof, and all of Lots 3, 4, 12, 13, Block 106�, of MARY
BRICKELL'S ADDITION TO THE MAP OF MIAMI, according to the Platt hereof, as recorded
in Plat Book "B", Page 113, of the Public Records of Miami -Dade County, Florida.
TOGETHERWITH:
Lots 14 and 15, of Block 106A, of MARY BRICKELL'S ADDITION TO�THE MAP OF
MIAMI, according to the Plat thereof, as recorded in Plat Book "B", Pag 113, of the Public
Records of Miami -Dade County, Florida;
LESS AND EXCEPT therefrom that part thereof conveyed to the Citygf Miami for street and
sidewalk purpose pursuant to that Warranty Deed recorded in Official ecords Book 1790, Page
604, of the Public Records of Miami -Dade County, Florida, and being pore particularly therein
described as follows: Beginning at the Northeasterly corner of Lot 15, lock 106A, of the
AMENDED MAP OF BRICKELL'S ADDITION TO THE MAP OF MIAMI, according to the
Plat thereof, as recorded in Plat Book "B", at Page 113, of the Public Records of Miami -Dade
County, Florida; thence run Southwardly along the Easterly line of Lots 15 and 14 of said Block
106A for a distance of 138 feet, more or less, to the Southeasterly corner of said Lot 14; thence
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run Westwardly along the Southerly line of said Lot 14 for a distance of 30 feet to a point; thence
run Eastwardly, Northeastwardly and Northwardly along the arc of a curve to the left, having a
radius of 25 feet, through a central angle of 89°59'50" with an arc distance of 39.27 feet to a
point of tangency; thence run Northwardly along a line 5 feet West of and parallel with the
Easterly line of said Lots 14 and 15 for a distance of 113 feet to a point of intersection with the
Northerly line of said Lot 15; thence run Easterly along the Northerly line of said Lot 15 for a
distance of 5 feet to the Point of Beginning.
Said lands situate, lying and being in Miami -Dade County, Florida.
AND TOGETHER WITH:
Lots 5, 6, 8, 81/2, 9, 10 and 11, Block 106A, "AMENDED MAP OF BRICKELLS ADDITION
TO THE MAP OF MIAMI", according to the Plat thereof as recorded in Plat Book "B", Page
113 of the Public Records of Dade County, Florida, LESS therefrom a portion of the South
feet of said Lot 9 (as deeded to the City of Miami in Official Records Book 10551, Page 10 4, of
the Public Records of Dade County, Florida), said portion being more particularly describgd as
follows:
BEGINNING at the most Southwesterly corner of said Lot 9, said point of beginning being also
on the North Right -of -Way Line of S.E. 8th Street; thence, along the West Line of said Lot 9,
N.0°07'30"E. for 10.00 feet to its intersection with the North Base Building Line of said S.E. 8th
Street; thence, along said Base Building Line, East for 10.61 feet to its intersection with the
Northwesterly extension of the South Line of Block 106A; thence, along said Sout ine of said
Block 106A, S.74°39'31 "E. for 37.80 feet to a point on the Northerly Right-of-Wa Line of said
S.E. 8th Street; thence, along said Right -of -Way Line and along the South Line of said Lot 9,
West for 47.08 feet to the POINT of BEGINNING.
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EXHIBIT "B" (to Development Agreement)
INSURANCE REQUIREMENTS
BRICKELL CITY CENTRE PROJECT LLC-SWIRE
I. Commercial General Liability (Primary & Non Contributory)
A. Limits of Liability
Bodily Injury and Property Damage Liability
Each Occurrence $1,000,000
General Aggregate Limit $2,000,000
Products/Completed Operations $1,000,000
Personal and Advertising Injury $1,000,000
B. Endorsements Required
City of Miami listed as an additional insured
Contingent & Contractual Liability
Premises & Operations Liability
Explosion, Collapse and Underground Hazard
Primary Insurance Clause Endorsement
II. Business Automobile Liability
A. Limits of Liability
Bodily Injury and Property Damage Liability
Combined Single Limit
Any Auto/Owned Autos/Scheduled
Including Hired, Borrowed or Non -Owned Autos
Any One Accident $1,000,000
B. Endorsements Required
City of Miami listed as an additional insured
III. Worker's Compensation
Limits of Liability
Statutory -State of Florida
Waiver of subrogation
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Employer's Liability
A. Limits of Liability
$500,000 for bodily injury caused by an accident, each accident.
$500,000 for bodily injury caused by disease, each employee
$500,000 for bodily injury caused by disease, policy limit
IV. Umbrella Policy/Excess Liability (Excess Follow Form)
V.
A. Limits of Liability
Bodily Injury and Property Damage Liability
Each Occurrence $2,000,000
Aggregate $2,000,000
B. Endorsements Required
City of Miami listed as an additional insured
Owners & Contractor's Protective
Each Occurrence
General Aggregate
City of Miami listed as named insured
$1,000,000
$1,000,000
The above policies shall provide the City of Miami with written notice of cancellation o r material
change from the insurer not less than (30) days prior to any such cancellation or mater al change,
or in accordance to policy provisions.
Companies authorized to do business in the State of Florida, with the following qualificati•ns, shall issue
all insurance policies required above:
The company must be rated no less than "A-" as to management, and no less than lass V" as to
Financial Strength, by the latest edition of Best's Insurance Guide, published by A . Best Company,
Oldwick, New Jersey, or its equivalent. All policies and /or certificates of insuranle are subject to
review and verification by Risk Management prior to insurance approval.
26