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HomeMy WebLinkAboutExhibit A-SUBCITY OF MIAMI, FLORIDA 0 THIS DOCUMENT IS A SUBSTITUTION TO ORIGINAL. BACKUP ORIGINAL CAN BE SEEN AT THE END OF THIS DOCUMENT. INTER -OFFICE MEMORANDUM TO: Honorable Mayor and DATE: May 16, 2014 Members of the City Commission FROM: Daniel J. Alfonso tyvlanager SUBJECT: May 22, 2014 Planning and Zoning City Commission Meeting PZ.3, PZ.4 and PZ.17 REFERENCES: ENCLOSURES: Please be advised of the following modifications to the Planning and Zoning portion of the May 22, 2014 City Commission Agenda: The draft development agreement needs to be substituted. The draft development agreement was provided online to the general public on May 14, 2014. The substitution is a result of modifications to the draft development agreement that have not been provided to the general public or distributed to the elected officials and needs to be included into the public record as well as incorporated to your printed documents. PZ4: The legislation needs to be included as part of the documents submitted for your review and consideration. The legislation was made available online to the general public on May 14, 2014 but was inadvertently omitted from the printed documents you received. Exhibit A is also attached for inclusion into the public record and to your printed documents. PZ17: The legislation needs to be included as part of the documents submitted for your review and consideration. The legislation was made available online to the general public on May 14, 2014 but was inadvertently omitted from the printed documents you received. Exhibit A is also attached for inclusion into the public record and to your printed documents. cc: \Alice N. Bravo, P.E., Deputy City Manager, Chief of Infrastructure kFrancisco J. Garcia, Director, Planning and Zoning Julia D. Hernandez, Agenda Coordinator ,4-0005'tdet- habitR- Sue , THIS DOCUMENT IS A SUOTUTION TO ORIGINAL. BACKUP ORIGINAL CAN BE SEEN AT THE END OF THIS DOCUMENT. PZ.3 HIS DOCUMENT IS A SUBSTITUTION TO ORIGINAL. BACKUP ORIGINAL CAN BE SEEN AT THE END OF THIS DOCUMENT. Second Reading Draft DEVELOPMENT AGREEMENT BETWEEN THE CITY OF MIAMI, FLORIDA AND RANSOM EVERGLADES SCHOOL, INC. REGARDING DEVELOPMENT OF THE RANSOM EVERGLADES SCHOOL UPPER CAMPUS PROJECT THIS AGREEMENT is entered this _ day of , 2014, by and between RANSOM EVERGLADES SCHOOL, INC., a Florida private school ("Ransom Everglades" or "School"), and the CITY OF MIAMI, FLORIDA, a municipal corporation and a political subdivision of the State of Florida ("City"), (Ransom Everglades and the City together referred to as the "Parties"). WITNESSETH: WHEREAS, Ransom Everglades holds fee simple title to approximately 11.45 acres +/- of property located at 3575 Main Highway within the City ( "Upper School Campus"); and WHEREAS, the properties which comprise the Ransom Everglades Upper School Campus are more particularly identified on Exhibit "A" ( "Properties" or "Upper School Campus Properties"); 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; to encourage a variety of building heights, massing and streetscape design; and to provide greater flexibility so as to result in higher and specialized quality buildings and streetscape design; and WHEREAS, the result of this master planning process is known as a "Special Area Plan" ("SAP"); and WHEREAS, Section 3.9.1 of Miami 21 and the Florida Local Government Development Agreement Act, Florida Statutes, 163.3220 through 163.3243, requires development within an SAP to be governed by a Development Agreement between the property owner(s) and the City; and WHEREAS, the City and Ransom Everglades wish for the Ransom Everglades School Upper Campus Properties to have a Special Area Plan Overlay pursuant to Section 3.9 of Miami 21; and WHEREAS, this Development Agreement ("Agreement") satisfies the requirement set forth in Miami 21 and the Florida Statutes; and WHEREAS, the City and Ransom Everglades wish for development within the Upper School Campus to proceed substantially in accordance with the Ransom Everglades Special Area Plan Regulating Plan and Concept Book attached as Exhibit 'B" ("Regulating Plan and Concept Book"); and WHEREAS, the property is designated Single Family Residential in the Miami Neighborhood Comprehensive Plan; and Page 1 of 13 ist DOCUMENT IS A SUBSTITUTION TO ORIGINAL. BACKUP ORIGINAL CAN BE SEEN AT THE END OF THIS DOCUMENT. Second Reading Draft WHEREAS, the City and Ransom Everglades wish for development of the Project to proceed in a manner which is consistent with the Comprehensive Plan; 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. , adopted on , has authorized the City Manager to execute this Agreement upon the terms and conditions set forth below, and the Developer has been duly authorized to execute this Agreement upon the terms and conditions set forth below. NOW THEREFORE, in consideration of the mutual covenants and agreements hereinafter contained, the Parties mutually agree and bind themselves as set forth herein: Section 1. Consideration. The Parties hereby agree that the consideration and obligations recited and provided for under this Agreement constitute substantial benefits to both Parties and thus adequate consideration for this Agreement. Section 2. Rules of Legal Construction. For all purposes of the Agreement, unless otherwise expressly provided: (a) A defined term has the meaning assigned to it; (b) Words in the singular include the plural, and words in 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 Ransom Everglades, as all Parties are drafters of this Agreement; and (f) The recitals are true and correct and are incorporated into and made a part of this Agreement. The attached exhibits shall be deemed adopted and incorporated into the Agreement; provided, however, that this Agreement shall be deemed to control in the event of a conflict between the attachments and this Agreement. Section 3. Definitions. Capitalized terms which are not specifically defined herein shall have the meaning given in Miami 21. "Agreement" means this Agreement between the City and Ransom Everglades. Page 2 of 13 14,DOCUMENT IS A SUBSTITUTION TO ORIGINAL. BACKUP ORIGINAL I CAN BE SEEN AT THE END OF THIS DOCUMENT. Second Reading Draft "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 (2011), meeting the requirements of Section 163.3177, Florida Statutes (2011), Section 163.3178, Florida Statutes (2011) and Section 163.3221(2), Florida Statutes (2011), which is in effect as of the Effective Date. "County" means Miami -Dade County, a political subdivision of the State of Florida. "Effective Date" means the date of recordation of the executed, original version of this Agreement. "Existing Zoning" means the zoning designation and regulations of the Zoning Ordinance, the City Charter, and the City Code in effect as of the time of the Effective Date of this Agreement. "Land" means the earth, water, and air, above, below, or on the surface, and includes any improvements or structures customarily regarded as land. "Laws" means all ordinances, resolutions, regulations, comprehensive plans, land development regulations, and rules adopted by a federal, state, or local government affecting the development of land. "Parties" mean the Ransom Everglades and the City who are all signatories to this Agreement. "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. "Ransom Everglades" or "School" means Ransom Everglades School, Inc., a private school in the City. "Ransom Everglades School Upper Campus" means the 11.45 acres +/- of property located at 3575 Main Highway within the City. "Special Area Plan" or "SAP" means the Ransom Everglades School Upper Campus Special Area Plan, including the Regulating Plan and Concept Book. Section 4. Purpose. The purpose of this Agreement is for the City to authorize Ransom Everglades to redevelop the Ransom Everglades School Upper Campus pursuant to the SAP. This Agreement will establish, as of the Effective Date, the land development regulations which will govern the development of the Ransom Everglades School Upper Campus, thereby providing the Parties with additional certainty during the development process. This Agreement satisfies the requirements of Section 3.9.1.f., Miami 21. Page 3 of 13 Ilk DOCUMENT IS A SUBSTITUTION TO ORIGINAL. BACKUP ORIGINAL CAN BE SEEN AT THE END OF THIS DOCUMENT. Second Reading Draft Section 5. Intent. Ransom Everglades and the City intend for this Agreement to be construed and implemented so as to effectuate the purpose of the SAP, this Development Agreement, Existing Zoning, the Comprehensive Plan, and the Florida Local Govemment Development Agreement Act, s 163.3220 —163.3243, Florida Statutes (2011). Section 6. Applicability. This Agreement only applies to the Ransom Everglades School Upper Campus Properties identified in Exhibit "A." Section 7. Term of Agreement, Effective Date and Binding Effect. This Agreement is authorized and governed by Sections 163.3220-163.3242, Florida Statues, known as the "Florida Local Government Development Agreement Act", shall have a term of thirty (30) years from the Effective Date, shall be recorded in the public records of the County, and shall be filed with the City Clerk. The term of this Agreement may be extended by mutual consent of the Parties in writing and subject to a public hearing, pursuant to s. 163.3225, Florida Statutes (2011). This Agreement shall become effective on the Effective Date and shall constitute a covenant running with the land that shall be binding upon, and inure to, the benefit of the Parties, their successors, assigns, heirs, legal representatives, and personal representatives. Section 8. Permitted Development Uses and Building Intensities. (a) Ransom Everglades School SAP Designation. The City has designated certain Property within the District as T3-R Sub -Urban Transect Zone with a NCD-3 Coconut Grove Neighborhood Conservation District Overlay 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" and provide for any deviations from the underlying regulations of the Zoning Ordinance. In approving the SAP, the City has determined that the uses and intensities of development permitted thereunder are consistent with the Comprehensive Plan and the Existing Zoning. (b) Intensity, Uses, and Building Heights. (1) As of the Effective Date and the pursuant to the Ransom Everglades School Upper Campus Special Area Plan, the intensity proposed for the SAP shall be consistent with the intensities permitted by the Existing Zoning and are consistent with the Comprehensive Plan. (2) As of the Effective Date and the pursuant to the Ransom Everglades School Upper Campus Special Area Plan, the Uses proposed for the SAP are permitted by the Existing Zoning and are consistent with the Comprehensive Plan. (3) As of the Effective Date and pursuant to the Ransom Everglades School Upper Campus Special Area Plan, the Heights proposed for the SAP are permitted by the Existing Zoning and are consistent with the Comprehensive Plan. (c) Environmental. The City finds that the proposed development will maintain a significant tree canopy in the area. The Parties agree that Ransom Everglades will comply with the intent and requirements of Chapter 17 of the City Code. Section 9. Project Approval. Page 4 of 13 *DOCUMENT IS A SUBSTITUTION TO ORIGINAL. BACKUP ORIGINAL CAN BE SEEN AT THE END OF THIS DOCUMENT. Second Reading Draft (a) Future Development Review. Future development within the Ransom Everglades School Upper Campus Special Area Plan shall proceed pursuant to the process established in the Regulating Plan and Concept Book, attached as Exhibit "B". The criteria to be used in determining whether future development shall be approved is consistency with the Comprehensive Plan, this Agreement, and substantial compliance the Ransom Everglades School Upper Campus Special Area Plan, (b) Prohibition on Downzoninq. (1) The Comprehensive Plan, this Agreement, and the Ransom Everglades School Upper Campus Special Area Plan shall govern the development of the Upper Campus Properties designated part of the SAP for the duration of the Agreement. The City's laws and policies adopted after the Effective Date may be applied to the SAP only if the determinations required by s. 163.3233(2), Florida Statutes (2011) have been made after 30 days written notice to the Developer and after a public hearing or as otherwise provided herein. (2) Pursuant to Section 163.3233(3), Florida Statutes (2011), this prohibition on downzoning supplements, rather than supplants, any rights that may vest to Ransom Everglades under Florida or Federal law. As a result, Ransom Everglades 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 (2011). Section 10. Local Development Permits. (a) The development of the Properties in accordance with the SAP is contemplated by Ransom Everglades. Redevelopment of the Properties may require additional permits or approvals from the City, County, State, or Federal government and any division thereof. Subject to required legal process and approvals, the City shall make a good faith effort to take all reasonable steps to cooperate with and facilitate all such approvals, including acting as an applicant. Such approvals include, without limitation, the following approvals and permits and any successor or analogous approvals and permits: (1) Building permits; (2) Certificates of use and/or occupancy; (3) Stormwater Permits; and (4) Any other official action of the City, County, or and other government agency having the effect of permitting development of the Property. (b) In the event that the City substantially modifies its land development regulations regarding site plan approval procedures, authority to approve any plans, buildings, or development on the Properties shall be vested solely in the City Manager, with the recommendation of the Planning Director or any other relevant party. 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. Page 5 of 13 1110IIS DOCUMENT IS A SUBSTITUTION TO ORIGINAL. BACKUP ORIGINAL CAN BE SEEN AT THE END OF THIS DOCUMENT. Second Reading Draft Section 11. Consistency with Comprehensive Plan. The City finds that development of the SAP is in conformity with the Existing Zoning and is consistent with the Comprehensive Plan. In the event that the Existing Zoning or the Comprehensive Plan requires the School to provide additional Public Facilities to accommodate the Project, the School will provide such Public Facilities consistent with the timing requirements of Section 163.3180, Florida Statutes (2010). The School shall be bound by the City impact fees and assessments in existence as of the date of obtaining a building permit, per chapter 13 of the City Code. Section 12. Necessity of Complying with Local Regulations Relative to Development Permits. The Parties 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 the School of the necessity of complying with the regulation governing said permitting requirements, conditions, fees, terms, licenses, or restrictions. Section 13. Archaeological. Due to the Project's location in a high probability Archaeological Conservation Area, the City will require the School to obtain a Certificate to Dig, pursuant to Chapter 23 of the City Code, to dig prior to any ground disturbing activities. Section 14. Historical Environmental Preservation. (a) Due to the contributing nature of the campus' specimen trees to the significance of the site, the School shall present a tree survey provided by a certified arborist describing size and condition of existing trees along with a tree protection plan, tree disposition plan, and mitigation plan to the City's Chief of Environmental Resources for approval. (b) All design related to the built and natural resources of the site shall assure the continued preservation of The Pagoda, the Paul Ransom Cottage, and the specimen trees, based on the designation report's identification of them as contributing resources. Section 15. Seawall. The School shall be responsible for any repairs to the seawall in compliance with the standards set forth by the Army Corps of Engineers, Miami 21, and the City Code. Section 16. Student Enrollment. The enrollment of full-time on -site students enrolled in Ransom Everglades School Upper Campus has historically varied between approximately 150- 165 students per grade, due to attrition, international studies and market dynamics. For purposes of this Agreement, the baseline student enrollment is 160 students per grade ("Baseline Enrollment") as of the Effective Date of this Agreement and Ransom Everglades agrees not to deviate by more than three percent (3%) from this on -site Baseline Enrollment, without seeking an amendment to this Development Agreement. Section 17. Civic Space. The Civic Space designated on page B4.17 of the Concept Book shall be open for use only during scheduled events and activities. These events include, but are not limited to, state and regional athletic events, community athletic events, and Coral Gables High School swim team events. Ransom Everglades School specifically reserves the right to refuse access to any individual who has not received approval by the School and maintains the Page 6 of 13 IIS DOCUMENT IS A SUBSTITUTION TO ORIGINAL. BACKUP ORIGINAL CAN BE SEEN AT THE END OF THIS DOCUMENT. Second Reading Draft right to engage in reasonable security practices consistent with its operation as a school. Access to the Civic Space on Ransom Everglades School Upper Campus will continue to be through security gated access points on Main Highway exclusively. Ransom Everglades may be allowed to close the Civic Space for an extended period of time in the event of security concerns, damage to the facilities or other unforeseen circumstances upon Notice to the City. Section 18. Job Creation and Employment Opportunities. The School shall consult with local and state economic development entities regarding job training and job placement services for area City residents seeking employment opportunities with potential employers, particularly during construction of proposed new buildings. Section 19. Periodic Review (a) The School 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 the School. Any information required of the School during the periodic review shall be limited to that necessary to determine the extent to which the School 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 the School has not proceeded in good faith to comply with the terms of the Agreement, the City may terminate or amend this Agreement after providing thirty (30) days written notice to the School pursuant to the provisions of Section 30 stated herein and shall commence a public hearing before the City Commission. Section 20. Emergency Management. The School shall ensure public safety and protection of property within the coastal zone from the threat of hurricanes. The School will review the Development's potential impact on evacuation times and shelter needs in the event of a hurricane or similar natural disaster. Section 21. Reservation of Development Rights. (a) For the term of this Agreement, the City hereby agrees that it shall permit the development of the Properties in accordance with the Existing Zoning, the Comprehensive Plan and the Agreement. (b) Nothing herein shall prohibit an increase in the density or intensity of development permitted in the SAP in a manner consistent with (a) the Existing Zoning and/or the Comprehensive Plan, (b) any zoning change subsequently requested or initiated by Ransom Everglades in accordance with applicable provision of law or (c) any zoning change subsequently enacted by the City. (c) The expiration or termination of this Agreement shall not be considered a waiver of, or limitation upon, the rights, including, but not limited to, any claims of vested rights or equitable estoppel, obtained or held by Ransom Everglades or its successors or assigns to continue development of the Property in conformity with Existing Zoning Page 7 of 13 OIS DOCUMENT IS A SUBSTITUTION TO ORIGINAL. BACKUP ORIGINAL CAN BE SEEN AT THE END OF THIS DOCUMENT. Second Reading Draft and all prior and subsequent development permits or development orders granted by the City. Section 22. Notices. (a) All notices, demands and requests which may or are required to be given hereunder shall, except as otherwise expressly provided, be in writing and delivered by personal service or sent by United States Registered or Certified Mail, return receipt requested, postage prepaid, or by overnight express delivery, such as Federal Express, to the parties at the addresses listed below. Any notice given pursuant to this Agreement shall be deemed given when received. Any actions required to be taken hereunder which fall on Saturday, Sunday, or United States legal holidays shall be deemed to be performed timely when taken on the succeeding day thereafter which shall not be a Saturday, Sunday, or legal holiday. To the City: City Manager City of Miami 3500 Pan American Drive Miami FL, 33133 With a copy to: City Attorney Miami Riverside Center 444 S.W. 2nd Ave.,_9th Floor Miami, FL 33130 To Ransom Everglades: Ransom. Everglades School 3575 Main Highway Coconut Grove, FL 33133 With Copies to: Shubin and Bass 46 S.W. 1st St., 3`d Floor Miami, FL 33130 (b) Any Party to this Agreement may change its notification address(es) by providing written notification to the remaining parties pursuant to the terms and conditions of this section. Section 23. 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, including but not limited to Sections 163.3220-163.3242, Florida Statutes, and any applicable federal law, both as to interpretation and performance, and that any action at law, suit in equity or judicial proceedings for the enforcement of this Agreement or any provision hereof shall be instituted only in the courts of the State of Florida or federal courts and venue for any such actions shall lie exclusively in a court of competent jurisdiction in the County. In addition to Page 8 of 13 BPS DOCUMENT IS A SUBSTITUTION TO ORIGINAL. BACKUP ORIGINAL CAN BE SEEN AT THE END OF THIS DOCUMENT. Second Reading Draft any other legal rights, the City and Ransom Everglades shall each have the right to specific performance of this Agreement in court. Each party shall bear its own attorney's fees. Each party waives any defense, whether asserted by motion or pleading, that the aforementioned courts are an improper or inconvenient venue. Moreover, the Parties consent to the personal jurisdiction of the aforementioned courts and irrevocably waive any objections to said jurisdiction. The Parties irrevocably waive any rights to a jury trial. Section 24. Voluntary Compliance. The Parties agree that in the event all or any part of this Agreement is struck down by judicial proceeding or preempted by legislative action, the Parties shall continue to honor the terms and conditions of this Agreement to the extent allowed by law. Section 25. No Oral Change or Termination. This Agreement and the exhibits and appendices appended hereto and incorporated herein by reference, if any, constitute the entire Agreement between the Parties with respect to the subject matter hereof. This Agreement supersedes any prior agreements or understandings between the Parties with respect to the subject matter hereof, and no change, modification, or discharge hereof in whole or in part shall be effective unless such change, modification or discharge is in writing and signed by the party against whom enforcement of the change, modification or discharge is sought. This Agreement cannot be changed or terminated orally. Section 26. Compliance with Applicable Law. Subject to the terms and conditions of this Agreement, throughout the term of this Agreement, Ransom Everglades and the City shall comply with all applicable federal, state, or local laws, rules, regulations, codes, ordinances, resolutions, administrative orders, permits, policies, 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 27. Representations; Representatives. Each party represents to the others that this Agreement has been duly authorized, delivered and executed by such party and constitutes the legal, valid, and binding obligation of such party, enforceable in accordance with its terms. Section 28. No Exclusive Remedies. No remedy or election given by any provision in the 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 of law or equity arising from such even-t of default, except where otherwise expressly provided. Section 29. 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 30. Events of Default. Page 9 of 13 Ilk DOCUMENT IS A SUBSTITUTION TO ORIGINAL. BACKUP ORIGINAL CAN BE SEEN AT THE END OF THIS DOCUMENT. Second Reading Draft (a) Ransom Everglades shall be in default under this agreement if Ransom Everglades fails to perform or breaches any term(s), covenant(s), or condition(s) 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 reasonable be cured within thirty (30) days, then Ransom Everglades shall not be in default if it commences to cure such breach within thirty (30) days 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 the Ransom Everglades specifying the nature of such breach; provided, however, that if such breach cannot reasonable by cured within thirty (30) days, the City shall not be in default if it commences to cure such breach within thirty (30) days and diligently prosecutes such cure to completion. (c) It shall not be a default under this Agreement if either party is declared bankrupt by a court of competent jurisdiction. All rights and obligations in this Agreement shall survive such bankruptcy of either party. The Parties hereby forfeit any right to terminate this Agreement upon the bankruptcy of the other party. (d) The default of a successor or assignee of any portion of Ransom Everglades rights hereunder shall not be deemed a breach by Ransom Everglades. Section 31. 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, Ransom Everglades and the City agree that any party may seek specific performance of this Agreement, and that seeking specific performance shall not waive any right of such party to also seek monetary damages, injunctive relief, or any other relief other than termination of this Agreement. The City hereby acknowledges that any claim for damages under this Agreement is not limited by sovereign immunity or similar limitation of liability. Section 32. 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 of 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 33. Assignment, Transfer, & Joinder. This Agreement shall be binding on Ransom Everglades and its heirs, successors, and assigns, including the successor to or assignee. Any such assignee shall assume all applicable rights and obligations under this Agreement. Section 34. Obligations Surviving Termination Hereof. Notwithstanding and prevailing over any contrary term of 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 Page 10 of 13 0IS DOCUMENT IS A SUBSTITUTION TO ORIGINAL. BACKUP ORIGINAL CAN BE SEEN AT THE END OF THIS DOCUMENT. Second Reading Draft effect until the expiration of a one (1) year term following the earlier of the effective date of such termination or expiration of the Term: (i) the exclusive venue and choice of law provision contained herein; (ii) rights of any party arising during or attributable to the period prior to expiration or earlier termination of this Agreement; and (iii) any other term or provision herein which expressly indicates either that it survives the termination or expiration hereof or is or may be applicable or effective beyond the expiration or permitted early termination hereof. Section 35. Lack of Agency Relationship. Nothing contained herein shall be construed as establishing an agency relationship between the City and Ransom Everglades and neither Ransom Everglades 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 Ransom Everglades or their subsidiaries, divisions, or affiliates. Section 36. Cooperation; Expedited Permitting; 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 approvals in an effort to assist Ransom Everglades in achieving its development and construction milestones. The City will accommodate requests from Ransom Everglades' general contractor and subcontractors for review of phased or multiple permitting packages, such as those for excavation, site work and foundations, building shell, core, and interiors. In addition, the City will designate an individual within the City Manager's Office who will have a primary (though not exclusive) duty to serve as the City's point of contact and liaison with Ransom Everglades 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 Ransom Everglades does not only comply with the applicable requirements of the Existing Zoning, the Comprehensive Plan, this Agreement and applicable building codes. Section 37. Enforcement. (a) In the event that Ransom Everglades, their successors, or assigns fail 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 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, Page 11 of 13 IIPI-IIS DOCUMENT IS A SUBSTITUTION TO ORIGINAL. BACKUP ORIGINAL CAN BE SEEN AT THE END OF THIS DOCUMENT. • Second Reading Draft such sum as the Court may adjudge to be reasonable for the services of his/her/its attorney. (c) This enforcement provision shall be in addition to any other remedies available at law, in equity or both. Section 38. Amendment or Termination by Mutual Consent. This Agreement may not be amended or terminated during its term except by mutual agreement of Ransom Everglades and the City and in writing. Prior to any amendment or termination of this Agreement during its term, the City shall hold two (2) public hearings to consider and deliberate such amendment or termination. Section 39. Third Party Defense. The City and Ransom Everglades 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 (2011); (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 Ransom Everglades 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 40. No Conflict of Interest. Ransom Everglades agrees to comply with Section 2-612 of the City Code as of the Effective Date, with respect to conflicts of interest. Section 41. No Third -Party Beneficiary. No persons or entities other than Ransom Everglades and the City, their heirs, permitted successors and assigns, shall have any rights whatsoever under this Agreement. Section 42. 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. NOW, WHEREOF, the City and Ransom Everglades have caused this Agreement to be duly executed. [Signature Pages to Follow] Page 12 of 13 DOCUMENT IS A SUBSTITUTION TO ORIGINAL. BACKUP ORIGINAL CAN BE SEEN AT THE END OF THIS DOCUMENT. Second Reading Draft IN WITNESS WHEREOF, I have hereunto set my/our hand(s) and seal(s) this _ day of January, 2014. RANSOM EVERGLADES SCHOOL, INC. Witness Signature By: Witness Name NAME STATE OF FLORIDA—COUNTY OF MIAMI-DADE Theforegoing was acknowledged before me this day of 20 , by , in his/her capacity as , on behalf of Ransom Everglades School, Inc. He is personally known to me and did not take an oath. (Stamp) ATTEST: Signature CITY OF MIAMI, a municipal corporation BY: Todd Hannon, City Clerk Daniel J. Alfonso, City Manager APPROVED AS TO FORM AND CORRECTNESS: Victoria Mendez City Attorney Page 13 of 13 -SUBSTITUTED DRAFT DEVELOPMENT AGREEMENT BETWEEN THE CITY OF MIAMI, FLORIDA AND RANSOM EVERGLADES SCHOOL, INC. REGARDING DEVELOPMENT OF THE RANSOM EVERGLADES SCHOOL UPPER CAMPUS PROJECT HIS AGREEMENT is entered this _ day of - , 2014, by and between RANSO ` EVERGLADES SCHOOL, INC., a Florida private school ("Ransom Everglades" or "School"), nd the CITY OF MIAMI, FLORIDA, a municipal corporation and a political subdivision •` .he State of Florida ("City"), (Ransom Everglades and the City together referred to as the "Parties WITNESSETH: WHEREAS, R som Everglades holds fee simple title to approximately 11.45 acres +/- of property located at 3'`-, 5 Main Highway within the City of Miami ("Upper School Campus"); and WHEREAS, the prop , les which comprise the Ransom Everglades Upper School Campus are more particularly i" -ntified on Exhibit "A" ("Properties" or "Upper School Campus Properties"); and WHEREAS, a process exists ithin the City's zoning code ("Miami 21") which allows parcels of more than nine (9) abutting a es to be master planned to allow greater integration of public improvements and infrastructure; t•' :-ncourage a variety of building heights, massing and streetscape design; and to provide greater exibility so as to result in higher and specialized quality buildings and streetscape design; and WHEREAS, the result of this master plan • process is known as a "Special Area Plan" ("SAP"); and WHEREAS, Section 3.9.1 of Miami 21 and the orida Local Government Development Agreement Act, Florida Statutes, 163.3220 through 163. °.. 43, requires development within an SAP to be governed by a Development Agreement betwee ' .he property owner(s) and the City; and WHEREAS, the City and Ransom Everglades wish for the Properties to have a Special Area Plan Overlay pursuant to Section 3.9 of Miami 21; and WHEREAS, this Development Agreement ("Agreement") sati ' .-s the requirement set forth in Miami 21 and the Florida Statutes; and WHEREAS, the City and Ransom Everglades wish for developme within the Upper School Campus to proceed substantially in accordance with the Ransom E glades Special Area Plan Regulating Plan and Concept Book attached as Exhibit "B" ("Regu':. ing Plan and Concept Book"); and WHEREAS, the property is designated Single Family Residential in t' .: Miami Neighborhood Comprehensive Plan; and Page 1 of 13 SUBSTITUTED DRAFT WHEREAS, the City and Ransom Everglades wish for development of the Project to roceed in a manner which is consistent with the Comprehensive Plan; and WHEREAS, the lack of certainty in the approval of development can result in a waste of eco ' is and land resources, discourage sound capital improvement planning and financing, escala the cost of housing and development, and discourage commitment to comprehensive planning, nd WH AS, assurance to Ransom Everglades that it may proceed in accordance with existing laws - , • policies, subject to the conditions of a development agreement, strengthens the public plann process, encourages sound capital improvement planning and financing, assists in assuring ere are adequate capital facilities for the development, encourages private participation in comp ensive planning, and reduces the economic costs of development; and WHEREAS, the , has authoriz conditions set forth below, a Agreement upon the terms and Commission pursuant to Ordinance No. , adopted on the City Manager to execute this Agreement upon the terms and Ransom Everglades has been duly authorized to execute this nditions set forth below. NOW THEREFORE, in c hereinafter contained, the Parties mut sideration of the mutual covenants and agreements Ily agree and bind themselves as set forth herein: Section 1. Consideration. The Partie ereby agree that the consideration and obligations recited and provided for under this Agreeme ., constitute substantial benefits to both Parties and thus adequate consideration for this Agreeme Section 2. Rules of Legal Construction. For all purposes of the Agreement, unless oth ise expressly provided: (a) A defined term has the meaning assigned to it, (b) Words in the singular include the plural, and worin the plural include the singular; (c) A pronoun in one gender includes and applies to o r genders as well; (d) The terms "hereunder", "herein", "hereof", "hereto" a such similar terms shall refer to the instant Agreement in its entirety and not to indivi•':.-I sections or articles; (e) The Parties hereto agree that this Agreement shall not ' e more strictly construed against either the City or Ransom Everglades, as all Pa es are drafters of this Agreement; and (f) The recitals are true and correct and are incorporated into an •` ade a part of this Agreement. The attached exhibits shall be deemed adopted an.' ncorporated into the Agreement; provided however, that this Agreement shall be dee ; d to control in the event of a conflict between the attachments and this Agreement. Section 3. Definitions. Capitalized terms which are not specifically defined herein all have the meaning given in Miami 21. "Agreement" means this Agreement between the City and Ransom Everglades Page 2 of 13 SU STITUTED DRAFT "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. C Flori (2011) Statutes omprehensive Plan" means the comprehensive plan known as the Miami prehensive Neighborhood Plan, adopted by the City pursuant to Chapter 163, Statutes (2011), meeting the requirements of Section 163.3177, Florida Statutes ection 163.3178, Florida Statutes (2011) and Section 163.3221(2), Florida 011), which is in effect as of the Effective Date. "County" m ns Miami -Dade County, a political subdivision of the State of Florida. "Effective Date means the date of recordation of the executed, original version of this Agreement. "Existing Zoning" Zoning Ordinance, th time of the Effective Da ans the zoning designation and regulations of the ity Charter, and the City Code in effect as of the of this Agreement. "Land" means the earth, wa' , and air, above, below, or on the surface and includes and improvements or structures stomarily regarded as land. "Laws" means all ordinances, r-::.•lutions, regulations, comprehensive plans, land development regulations, and rules ::opted by a federal, state, or local government affecting the development of land. "Parties" mean the Ransom Everglades Agreement. d the City who are all signatories to this "Public Facilities" means major capital impro transportation, sanitary sewer, solid waste, draina and recreational, streets, parking and health systems ments, including, but not limited to, potable water, educational, parks d facilities. "Ransom Everglades" or "School" means Ransom Ev school in the City of Miami, Florida. lades School, Inc., a private "Ransom Everglades School Upper Campus" means the 1 -5 acres +/- of property located at 3575 Main Highway within the City of Miami. "Special Area Plan" or "SAP" means the Ransom Everglades Sc' col Upper Campus Special Area Plan, including the Regulating Plan and Concept Book. Section 4. Purpose. The purpose of this Agreement is for the City to auth•ize Ransom Everglades to redevelop the Ransom Everglades School Upper Campus pursuant the SAP. This Agreement will establish, as of the Effective Date, the land development regulati• is which will govern the development of the Ransom Everglades School Upper Campus, ereby providing the Parties with additional certainty during the development process. This Agre- ' ent satisfies the requirements of Section 3.9.1.f., Miami 21. Page 3 of 13 SUBSTITUTED DRAFT ection 5. Intent. Ransom Everglades and the City intend for this Agreement to be c.' strued and implemented so as to effectuate the purpose of the SAP, this Development Agr ment, Existing Zoning, the Comprehensive Plan, and the Florida Local Government Devel..'ment Agreement Act, s 163.3220 — 163.3243, Florida Statutes (2011). Section Applicability. This Agreement only applies to the Ransom Everglades School Upper Cam s Properties identified in Exhibit "A." Section 7. m of Agreement, Effective Date and Binding Effect. This Agreement is authorized and • : erned by Sections 163.3220-163.3242, Florida Statues, known as the "Florida Local Gove ,. ment Development Agreement Act" and shall have a term of thirty (30) years from the Effecti Date, and shall be recorded in the public records of Miami -Dade County and filed with the City CI =- . The term of this Agreement may be extended by mutual consent of the Parties subject to a p is hearing, pursuant to s. 163.3225, Florida Statutes (2011). This Agreement shall become eff- ive on the Effective Date and shall constitute a covenant running with the land that shall be bindi upon, and inure to, the benefit of the parties, their successors, assigns, heirs, legal representati , and personal representatives. Section 8. Permitted Developme Uses and Building Intensities. (a) Ransom Everglades School AP Designation. The City has designated certain Property within the District as Sub -Urban Transect Zone with a NCD-3 Coconut Grove Neighborhood Conservatio' Iistrict Overlay on the official zoning Atlas of the City, pursuant to the applicable prdures in Miami 21. The Regulating Plan and Design Guidelines are attached as ibit "B" and provide for any deviations from the underlying regulations of Miami In approving the SAP, the City has determined that the uses and intensities development permitted thereunder are consistent with the Comprehensive Plan and e Existing Zoning. (b) Intensity, Uses, and Building Heights. (1) As of the Effective Date and the pursuant to th--SAP, the intensity proposed for the SAP shall be consistent with the intensities p: itted by the Existing Zoning and are consistent with the Comprehensive Plan. (2) As of the Effective Date and the pursuant to the SAP, , e Uses proposed for the SAP are permitted by the Existing Zoning and t: consistent with the Comprehensive Plan. (3) As of the Effective Date and the pursuant to the SAP, the '`'-fights proposed for the SAP are permitted by the Existing Zoning and are csistent with the Comprehensive Plan. (c) Environmental. The City finds that the proposed development will significant tree canopy in the area. The Parties agree that Ransom Ever comply with the intent and requirements of Chapter 17 of the City Code. Section 9. Project Approval. Page 4 of 13 aintain a des will SUBSTITUTED DRAFT (a) Future Development Review. Future development within the SAP shall proceed pursuant to the process established in the Regulating Plan and Concept Book, attached as Exhibit "B". The criteria to be used in determining whether future development shall be approved is consistency with the Comprehensive Plan, this Agreement and the SAP_ (b) rohibition on Downzonin ( - The Comprehensive Plan, this Agreement, and the SAP shall govern the velopment of the Upper Campus Properties designated part of the SAP for the tion of the Agreement. The City's laws and policies adopted after the ve Date may be applied to the SAP only if the determinations required by 233(2), Florida Statutes (2011) have been made after 30 days written ansom Everglades and at a public hearing or as otherwise provided (2) d Effe s. 16 notice t herein. Pursuant to downzoning s Ransom Evergl Everglades may development regulat limited to, equitable es accrue by virtue of Chap construed as an agreeme Ransom Everglades in the fu Section 10. Local Development Permits. ection 163.3233(3), Florida Statutes (2011), this prohibition on plements, rather than supplants, any rights that may vest to es under Florida or Federal law. As a result, Ransom hallenge any subsequently adopted changes to land s based on (i) common law principles including, but not pel and vested rights, or (ii) statutory rights which may 70, Florida Statutes (2011). This section shall not be by the City to any challenge that may be raised by e. (a) The development of the Properties in a Ransom Everglades. Redevelopment permits or approvals from the City, County, division thereof. Subject to required legal make a good faith effort to take all reasonable all such approvals, including acting as an applica include, without limitation, the following approvals analogous approvals and permits: (1) Building permits; (2) Certificates of use and/or occupancy; (3) Stormwater Permits; and (4) Any other official action of the City, County, or and othe having the effect of permitting development of the Property. (b) In the event that the City substantially modifies its land develo ordance with the SAP is contemplated by the Properties may require additional tate, or Federal government and any cess and approvals, the City shall ps to cooperate with and facilitate or co -applicant. Such approvals a permits and any successor or overnment agency ent regulations regarding site plan approval procedures, authority to approve any pla ,, buildings, or development on the Properties shall be vested solely in the City Man er, with the recommendation of the Planning Director or any other relevant party. A such site plan shall be approved if it meets the requirements and criteria of the xisting Zoning, the Comprehensive Plan and the terms of this Agreement. Page 5 of 13 SUBSTITUTED DRAFT ection 11. Consistency with Comprehensive Plan. The City finds that development of the S is in conformity with the Existing Zoning and is consistent with the Comprehensive Plan. In the ent that the Existing Zoning or the Comprehensive Plan requires the School to provide additi• I Public Facilities to accommodate the Project, the School will provide such Public Facilitie onsistent with the timing requirements of Section 163.3180, Florida Statutes (2010). The Scho•. hall be bound by the City impact fees and assessments in existence as of the date of obtaining •uilding permit, per chapter 13 of the City Code. Section 12. essit of Com.l in. with Local Re•ulations Relative to Development Permits. The Parties agree at the failure of this Agreement to address a particular permit, condition, fee, term license or triction in effect on the Effective Date shall not relieve the School of the necessity of complyin• ith the regulation governing said permitting requirements, conditions, fees, terms, licenses, or rictions. Section 13. Archaeologic. Due to the Project's location in a high probability Archaeological Conservation Area, the City wi -quire the School to obtain a Certificate to Dig, pursuant to Chapter 23 of the City Code, to d •rior to any ground disturbing activities. Section 14. Historical Environmen <, Preservation. (a) Due to the contributing nate of the campus' specimen trees to the significance of the site, the School shall prent a tree survey provided by a certified arborist describing size and condition o fisting trees along with a tree protection plan, tree disposition plan, and mitigation pl. '; to the City's Chief of Environmental Resources for approval. (b) All design related to the built and n: ral resources of the site shall assure the continued preservation of the Pagoda, th Paul Ransom Cottage, and the specimen trees, based on the designation report' identification of them as contributing resources. Section 15. Seawall. The School shall be responsible for compliance with the standards set forth by the Army Corps of City Code, and Miami 21. Section 16. Periodic Review (a) The School shall provide the City on an annual basis a state{:• of the project in order for the City to conduct an annual review of the Development. `_. is requirement shall commence twelve (12) months after the Effective Date. repairs to the seawall in ineers, the City Charter, the (b) During its annual review, the City may ask for additional information .ot provided by the School. Any information required of the School during the periodic r- .'ew shall be limited to that necessary to determine the extent to which the School is p eeding in good faith to comply with the terms of this Agreement. (c) If the City finds on the basis of competent substantial evidence that the Schoo" as not proceeded in good faith to comply with the terms of the Agreement, the City Page 6 of 13 BSTITUTED DRAFT terminate or amend this Agreement after providing 30 days written notice to the School pursuant to the provisions of Section 32 stated herein and shall commence a public earing before the City Commission. Section 17. mer•enc Mana•ement. The School shall ensure public safety and protection of property with! the coastal zone from the threat of hurricanes. The School will review the Project's potenti impact on evacuation times and shelter needs in the event of a hurricane. Section 18. Res- ation of Develo ment Ri. hts. (a) For the ter of this Agreement, the City hereby agrees that it shall permit the development >f the Properties in accordance with the Existing Zoning, the Comprehensive ' an and the Agreement. (b) Nothing herein sh: , prohibit an increase in the density or intensity of development permitted in the SA in a manner consistent with (1) the Existing Zoning and the Comprehensive Plan, '-•) any zoning change subsequently requested or initiated by Ransom Everglades in L, ordance with applicable provision of law or (3) any zoning change subsequently ena d by the City. (c) The expiration or terminatio •f this Agreement shall not be considered a waiver of, or limitation upon, the rights, i `` uding, but not limited to, any claims of vested rights or equitable estoppel, obtained s held by Ransom Everglades or its successors or assigns to continue development •.. the Property in conformity with Existing Zoning and all prior and subsequent develo•ent permits or development orders granted by the City. Section 19. Notices. (a) All notices, demands and requests which ma shall, except as otherwise expressly provide personal service or sent by United States Registe requested, postage prepaid, or by overnight exp Express, to the parties at the addresses listed below. this Agreement shall be deemed given when received. taken hereunder which fall on Saturday, Sunday, or U shall be deemed to be performed timely when taken thereafter which shall not be a Saturday, Sunday, or legal holi To the City: City Manager City of Miami 3500 Pan American Drive Miami FL, 33133 With a copy to: City Attorney Miami Riverside Center Page 7 of 13 r are required to be given hereunder be in writing and delivered by d or Certified Mail, return receipt ss delivery, such as Federal ny notice given pursuant to ny actions required to be d States legal holidays the succeeding day Su STITUTED 444 S.W. 2nd Ave., 9th Floor Miami, FL 33130 To Ransom Everglades: Ransom Everglades School 3575 Main Highway Coconut Grove, Florida 33133 h Copies to: Shubin and Bass 46 S.W. 1st St., 3rd Floor Miami, FI 33130 DRAFT (b) Any Party this Agreement may change its notification address(es) by providing written notific=:.'on to the remaining parties pursuant to the terms and conditions of this section. Section 20. Exclusive Venu-.. Choice of Law S•ecific Performance. It is mutually understood and agreed by the parties heret•' hat this Agreement shall be governed by the laws of the State of Florida, including but not limiter; to Sections 163.3220-163.3242, Florida Statutes, and any applicable federal law, both as to int •retation 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 tState of Florida or federal courts and venue for any such actions shall lie exclusively in a cou competent jurisdiction in the County. In addition to any other legal rights, the City and Ranso Everglades shall each have the right to specific performance of this Agreement in court. Eac •arty shall bear its own attorney's fees. Each party waives any defense, whether asserted b otion or pleading, that the aforementioned courts are an improper or inconvenient venue. M• over, the Parties consent to the personal jurisdiction of the aforementioned courts and it ocably waive any objections to said jurisdiction. The Parties irrevocably waive any rights to ury trial. Section 21. Voluntary Compliance. The Parties agree -t in the event all or any part of this Agreement is struck down by judicial proceeding or preempby legislative action, the Parties shall continue to honor the terms and conditions of this Agree t to the extent allowed by law. Section 22. No Oral Change or Termination. This Agree ' ;-nt and the exhibits and appendices appended hereto and incorporated herein by reference, any, constitute the entire Agreement between the Parties with respect to the subject matte ereof. This Agreement supersedes any prior agreements or understandings between the Pa -s with respect to the subject matter hereof, and no change, modification, or discharge hereof in hole or in part shall be effective unless such change, modification or discharge is in writing and . • ned by the party against whom enforcement of the change, modification or discharge is sough ` This Agreement cannot be changed or terminated orally. Section 23. Compliance with Applicable Law. Subject to the terms and condi'•.•ns of this Agreement, throughout the Term of this Agreement, Ransom Everglades and the ity shall comply with all applicable federal, state, or local laws, rules, regulations, codes, ord _-nces, Page 8 of 13 SUBSTITUTED DRAFT esolutions, administrative orders, permits, policies, and procedures and orders that govern or to to the respective Parties' obligations and performance under this Agreement, all as they ma be amended from time to time. Sectio 24. Representations; Representatives. Each party represents to the others that this Agreem- has been duly authorized, delivered and executed by such party and constitutes the legal, valid, nd binding obligation of such party, enforceable in accordance with its terms. Section 25. o Exclusive Remedies. No remedy or election given by any provision in the Agreement shal •e deemed exclusive unless expressly so indicated. Wherever possible, the remedies granted 'ereunder upon a default of the other party shall be cumulative and in addition to all other : edies of law or equity arising from such even-t of default, except where otherwise expressly pr. ided. Section 26. Failure to -rcise Ri•hts not a Waiver: Waiver Provisions. The failure by either party to promptly exercise a right arising hereunder shall not constitute a waiver of such right unless otherwise expressly p',vided herein. No waiver or breach of any provision of this Agreement shall constitute a ='ver of any subsequent breach of the same or any other provision hereof, and no waiver sh:` be effective unless made in writing. Section 27. Events of Default. (a) (b) (c) (d) Ransom Everglades shall be i fails to perform or breaches Agreement which is not cured with City specifying the nature of such b cannot reasonably be cured within 30 default if it commences to cure such brea such cure to completion The City shall be in default under this Agr breaches any term, covenant, or condition of th cured within 30 days after receipt of written no specifying the nature of such breach; provided, ho reasonably by cured within 30 days, the City shall not cure such breach within 30 days and diligently prosecute It shall not be a default under this Agreement if either part court of competent jurisdiction. All rights and obligations survive such bankruptcy of either party. The parties hereb terminate this Agreement upon the bankruptcy of the other part not absolve Ransom Everglades of any of its obligations pursuan should it declare bankruptcy, including but not limited to ensuring tha sites, buildings, structures, and excavation sites are safe. The default of a successor or assignee of any portion of Ransom Everg hereunder shall not be deemed a breach by Ransom Everglades. Section 28. Remedies Upon Default. Page 9 of 13 efault under this agreement if Ransom Everglades term(s), covenant(s), or condition(s) of this 30 days after receipt of written notice from the ach; provided, however, that if such breach s, then Ransom Everglades shall not be in within 30-days and diligently prosecutes ment if the City fails to perform or Agreement and such failure is not e from the Ransom Everglades er, that if such breach cannot in default if it commences to uch cure to completion. declared bankrupt by a this Agreement shall forfeit any right to This section does the City Code II construction es rights fir STITUTE D DRAFT (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, Ransom Everglades 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 lief, or any other relief other than termination of this Agreement. Section 29. ,everability. If any term or provision of this Agreement or the application thereof to any person circumstance shall, to any extent, hereafter be determined to be invalid or unenforceable, th emainder of this Agreement or the application of such term of provision to persons or circumst ces other than those as to which it is held invalid or unenforceable shall not be affected thereb nd shall continue in full force and effect. Section 30. Assiqnmen Transfer, & Joinder. This Agreement shall be binding on Ransom Everglades and its heirs, ccessors, and assigns. Any such assignee shall assume all applicable rights and obligatio under this Agreement. Section 31. Obligations Surviv _q Termination Hereof. Notwithstanding and prevailing over any contrary term of provision con ined herein, in the event of any lawful termination of this Agreement, the following obligations .II survive such termination and continue in full force and effect until the expiration of a one (1) y-., term following the earlier of the effective date of such termination or expiration of the Term: the exclusive venue and choice of law provision contained herein; (b) rights of any party : sing during or attributable to the period prior to expiration or earlier termination of this Agreement; and (c) any other term or provision herein which expressly indicates either that it survives ': e termination or expiration hereof or is or may be applicable or effective beyond the expiration or -rmitted early termination hereof. Section 32. Lack of Agency Relationship. Nothin• . ontained herein shall be construed as establishing an agency relationship between the Cit .nd Ransom Everglades and neither Ransom Everglades nor its employees, agents, contracto subsidiaries, divisions, affiliates, or guests shall be deemed agents, instrumentalities, employee, or contractors of the City for any purpose hereunder, and the City, its contractors, agents, an• -mployees shall not be deemed contractors, agents, or employees of Ransom Everglades or eir subsidiaries, divisions, or affiliates. Section 33. Cooperation: Expedited Permitting and Time is of the ence. (a) The Parties agree to cooperate with each other to the full exte practicable pursuant to the terms and conditions of this Agreement. The Parties agr= - that time is of the essence in all aspects of their respective and mutual responsibiliti . pursuant to this Agreement. The City shall use its best efforts to expedite the •ermitting and approvals in an effort to assist Ransom Everglades in achieving its de < - lopment and construction milestones. The City will accommodate requests fr•' i Ransom Everglades' general contractor and subcontractors for review of phased multiple permitting packages, such as those for excavation, site work and fou _ ations, Page 10 of 13 SUBSTITUTED DRAFT building shell, core, and interiors. In addition, the City will designate and individual within the City Manager's office who will have a primary (though not exclusive) duty to serve as the City's point of contact and liaison with Ransom Everglades 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 'ty which have the authority or right to review and approve all applications for such pe its and licenses. (b) No hstanding the foregoing, the City shall not be obligated to issue development permit to the extent Ransom Everglades does not only comply with the applicable requirem is of the Existing Zoning, the Comprehensive Plan, this Agreement, the applicable ilding codes, or any other Laws. Section 34. Enforcem t. (a) In the event that accordance with th City shall seek enforc (b) Enforcement of this A violating, or attempting t prevailing party in any acti shall be entitled to recover, such sum as the Court may attorney. (c) This enforcement provision shall law, in equity or both. ansom Everglades, their successors, and/or assigns fail to act in terms of the Existing Zoning, the SAP, or this Agreement, the ent of said violation upon the subject property. ement shall be by action against any parties or person violate, any covenants set forth in this Agreement. The or suit pertaining to or arising out of this Agreement addition to costs and disbursements allowed by law, a• dge to be reasonable for the services of his/her/its b in addition to any other remedies available at Section 35. Amendment or Termination b Mut I Consent. This Agreement may not be amended or terminated during its term except by mut ` agreement of Ransom Everglades and the City. Prior to any amendment or termination of this reement during its term, the City shall hold two (2) public hearings to consider and deliberate suc amendment or termination. Section 36. Third Party Defense. The City and Ransom Erglades shall each, at their own cost and expense, vigorously defend any claims, suits or de nds brought against them by third parties, challenging the Agreement or the Project, or objting to any aspect thereof, including, without limitation, (a) a consistency challenge pursuant t . Section 163.3215, Florida. Statutes (2011), (b) a petition for writ of certiorari, (c) an action for d aratory judgment, or (d) any claims for loss, damage, liability, or expense (including reasonab'' attorneys' fees). The City and Ransom Everglades shall promptly give the other written noticof any such action, including those that are pending or threatened and all responses, filings,., nd pleadings with respect thereto. Section 37. No Conflict of Interest. Ransom Everglades agrees to comply withection 2-612 of the City Code as of the Effective Date, with respect to conflicts of interest. Page 11 of 13 SUBSTITUTED DRAFT ection 38. No Third -Party Beneficiary. No Persons or entities other than Ransom rglades and the City, their heirs, permitted successors and assigns, shall have any rights oever under this Agreement. Section . 9. Counterparts. This Agreement may be executed in two (2) or more counterparts, each of w'.ch shall constitute an original but all of which, when taken together shall constitute one and the me agreement. NOW, EREOF, the City and Ransom Everglades have caused this Agreement to be duly executed. [Signature Pages to Follow] Page 12 of 13 SU r, STITUTED DRAFT IN WITNESS WHEREOF, I have hereunto set my/our hand(s) and seal(s) this day o anuary, 2014. RAN `=' M EVERGLADES SCHOOL, INC. Witness Si. .ture By: Witness Name NAME STATE OF FLORIDA — COU Y OF MIAMI-DADE The foregoing was acknowled• yd before me this day of 20 , by , i is/her capacity as , on behalf of Ransom Everglades School, Inc. e is personally known to me and did not take an oath. (Stamp) ATTEST: Todd Hannon, City Clerk APPROVED AS TO FORM AND CORRECTNESS: Victoria Mendez City Attorney Signature BY: Daniel J. Alfons City Manager OF MIAMI, a municipal corporation Page 13 of 13