HomeMy WebLinkAboutExhibitEXHIBIT
DEVELOPMENT AGREEMENT BETWEEN THE CITY OF MIAMI, FLORIDA AND
4201 NE 2ND AVE LLC REGARDING THE DEVELOPMENT OF THE BLOCK 5 EAST
PORTION OF THE MIAMI DESIGN DISTRICT RETAIL STREET SPECIAL AREA
PLAN PROJECT.
THIS AGREEMENT is entered into the day of , 2015, by and between 4201 NE
2ND AVE LLC, a Florida limited liability company ("Owner" or "Developer") and the CITY OF MIAMI,
FLORIDA, a municipal corporation and subdivision of the State of Florida ("City") (the Developer and the City
together referred as the "Parties").
WITNESSETH:
WHEREAS, the Owner holds fee simple title to approximately 1.9 acres +/- of property situated on the
east side of NE 2"d Avenue between NE 42"d and 43rd Streets as more particularly described in Exhibit "A"
("Property"), and located within the Miami Design District ("District") in the City; and
WHEREAS, the District is in the midst of a transformation to an internationally recognized center for
design, the arts, high fashion, luxury retail, and a center of creative employment; and
WHEREAS, the emerging status of the District is consistent with the City's vision to become a world class
city and the City wishes to encourage redevelopment within the District; and
WHEREAS, the Developer wishes to integrate the Property as part of the more than 20 acres that comprise
the boundaries of the Miami Design District Retail Street Special Area Plan ("SAP"), approved pursuant to the
adoption of Ordinance No. 13334 by the City Commission on July 26, 2012, and subsequently amended by
Ordinance No. 13414 on October 24, 2013, in order to ensure that its redevelopment is carried out in a fashion
consistent with that master plan's goals and standards; and
WHEREAS, Section 3.9.1 of Miami 21, the Zoning Ordinance of the City, and the Florida Local
Government Development Agreement Act, s. 163.3220 through 163.3243, Florida Statutes (2013), requires
development within a special area plan to be governed by a Development Agreement between the property owner(s)
and the City; and
WHEREAS, the City and the Developer mutually desire the Property to become part of the SAP pursuant
to Section 3.9 of Miami 21; and
WHEREAS, the City and the Developer wish for development on the Property of the SAP to proceed
substantially in accordance with the Miami Design District Retail Street SAP Regulating Plan and Concept Book
attached as Exhibit "B" ("Regulating Plan and Concept Book"); and
WHEREAS, the City and the Developer wish for the redevelopment of the Property to proceed in a
manner 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 investment planning and finance, escalate the cost of housing and
development, and discourage commitment to comprehensive planning; and
WHEREAS, the 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
City Commission — Second Reading
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 _February 26,
2015 after two (2) public hearings, has authorized the City Manager to execute this Development Agreement
("Agreement") upon substantially similar terms and conditions set forth herein 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 ascribed 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 other 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 the Owner, as all Parties are drafters of this Agreement; and
(f)
The recitals are true and correct and are incorporated into and made 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 any 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 the Owner.
"Block 5 East" means that portion of the SAP area comprised of the Property.
"City" means the City of Miami, a municipal corporation and political subdivision of the State of Florida,
and all departments, agencies, and instrumentalities subject to the jurisdiction thereof.
"Code" means the City Charter and Code of Ordinances in effect as of the Effective Date.
City Commission — Second Reading
"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 163.4177, 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.
"Concept Book" means the Miami Design District Retail Street SAP Concept Book attached hereto as part
of Exhibit `B".
"County" means Miami -Dade County, a political subdivision of the State of Florida.
"Developer" means 4201 NE 2"d Ave LLC.
"Effective Date" means the date of recordation of the executed, original version of this Agreement.
"Existing Zoning" means (a) the Miami 21 regulations as of April 2013, specifically including the Miami
Design District Retail Street Special Area Plan Regulating Plan and Concept Book, as amended, and related
modifications to the Transect designations of lots within the Miami Design District Retail Street Special Area Plan
area; and (b) the provision of the Code which regulates development, specifically including Chapters 4, 10, 13, 22,
23, 36, 54, 55, and 62 of the Code, as amended, through the Effective Date, which together comprise the effective
land development regulations governing the development of the SAP Area.
"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, development regulations, and
rules adopted by the City, County, State, or federal government affecting the development of land.
"Owner" has the same meaning as the Developer.
"Parties" means the Developer and the City, both of whom are signatories to this Agreement.
"Property" means the parcel more specifically described in Exhibit "A" to this Agreement and which is
more commonly referred to as 220 NE 43rd Street, Miami, FL 33137 (Folio No. 01-3219-009-0070).
"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.
"Regulating Plan" means the Miami Design District Retail Street SAP Regulating Plan attached hereto as
part of Exhibit `B".
"SAP Area" means the area within the boundary or forming part of the Miami Design District Retail Street
Special Area Plan.
"Special Area Plan" or "SAP" means the Miami Design District Retail Street Special Area Plan, Second
Amendment, including the Regulating Plan and Concept Book.
City Commission — Second Reading
"Term" means the duration of this Agreement which shall commence on the Effective Date and continue
in force for 30 years thereafter, consistent with the authority provided pursuant to s. 163.3229, Florida Statutes
(2013).
Section 4. Purpose. The purpose of this Agreement is for the City to authorize Owner to redevelop the Block
5 East, as identified in the Block Key Plan of the Concept Book, pursuant standards set forth in the Special Area
Plan. This Agreement will establish, as of the Effective Date, the land development regulations, referred to as the
"Existing Zoning" which will govern development of the Block 5 East, thereby providing the Parties with additional
certainty during the development process. This Agreement satisfies the requirements of Section 3.9.1.f, Miami 21.
Section 5. Intent. The Developer and the City intend for this Agreement to be construed and implemented so
as to effectuate the purpose of the Miami Design District Retail Street Special Area Plan, Second Amendment, this
Development Agreement, the Comprehensive Plan, Miami 21, and the Florida Local Government Development
Agreement Act, s. 163.3220 — 163.3243, Florida Statutes (2013).
Section 6. Applicability. This Agreement only applies to the Project.
Section 7. Term of Agreement, Effective Date, & Binding Effect. This Agreement shall have a term of thirty
(30) years from the Effective Date, shall be recorded in the public records of Miami -Dade County, at Developer's
sole cost and expense, 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
(2013). 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) Miami Design District Retail Street SAP Designation. The City has designated the Property as
part of the Miami Design District Retail Street 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" and provide for any deviations from the underlying zoning regulations
of Miami 21. 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) Density, Intensity, Uses, and Building Heights.
(1) As of the Effective Date and pursuant to the 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 pursuant to the 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 Special Area Plan, the Building Heights
proposed for the SAP are permitted by the Existing Zoning and are consistent with the
Comprehensive Plan.
City Commission — Second Reading
(4) Nothing herein shall prohibit the Developer from requesting a change of zoning, pursuant
to the requirements of Article 7 of Miami 21, to increase the density or intensity of
development permitted on the Property, as long as such increase in density or intensity is
consistent with the Comprehensive Plan and the procedures established in Miami 21 as
they exists on the Effective Date.
(5)
In the event the City should amend its Comprehensive Plan to permit the transfer of
densities within a specified area so as to permit densities in excess of the density limits
set forth in a particular Future Land Use Map category, nothing herein shall prohibit the
Developer from requesting such a density transfer.
(c) Environmental. The City finds that the proposed development will significantly improve the
publicly accessible tree canopy in the area. The Parties will comply with the intent and
requirements of Chapter 17 of the City Code.
Section 9. Public Facilities. As of the Effective Date, the Developer has conducted an extensive analysis of
the Public Facilities available to serve the proposed development. In the event that the Existing Zoning and/or
Comprehensive Plan require the Developer to provide Public Facilities to address any deficiencies in required levels
of service occasioned by future development on Block 5 East, the Developer shall provide such Public Facilities
consistent with the timing requirements of s. 163.3180(2)(a), (b), and (c), Florida Statutes (2013), or as otherwise
required by the City Code, if applicable. The Developer shall be bound by the City impact fees and assessments in
existence as of the Effective Date of this Agreement.
Section 10. Project Approval.
(a) Future Development Review. Future development on Block 5 East shall proceed pursuant to and
in accordance with the processes and standards 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 are: (1) consistency with the Comprehensive Plan; (2) consistency with this
Agreement; (3) compliance with the Miami Design District Retail Street Special Area Plan; and
(iv) any other applicable local, state, or federal rules, regulations, statutes, and ordinances.
(b) Prohibition on Downzoning.
(1) The Comprehensive Plan, the Existing Zoning, and this Agreement shall govern the
development of Block 5 East within the Miami Design District Retail Street Special Area
Plan area. The City's laws and policies adopted after the Effective Date may be applied
to the SAP only if the determination required by s. 163.3233(2), Florida Statutes (2013)
has been made following a public hearing or as otherwise provided herein.
(2) Pursuant to s. 163.3233(3), Florida Statutes (2013), this prohibition on downsizing
supplements, rather than supplants, any rights that may vest to the Developer under
Florida or Federal law. As a result, the Developer may challenge any subsequently
adopted changes to land development regulations based on (i) common law principles
including, but not limited to, equitable estoppel and vested rights; or (ii) statutory rights
which may accrue by virtue of Chapter 70, Florida Statutes (2011).
Section 11. Alcoholic Beverage Sales. A certificate of use and/or occupancy may be issued to any applicant
for the consumption or sale of liquor either on premises or off the premises and/or beer and wine for consumption on
City Commission — Second Reading
the premises, as defined under the laws of the State of Florida, on Block 5 East notwithstanding any minimum
distance requirements for such license establishments set forth in Section 4-7 of the City Code. Any such
establishment must comply with all other regulations of Chapter 4 of the City Code and Miami 21.
Section 12. Street Right -of -Way Improvements. In order to foster a uniform aesthetic within the SAP Area,
the Developer agrees to coordinate with other SAP Area property owners in order to replicate or, at a minimum,
compliment the street right-of-way improvements implemented elsewhere within the SAP Area. The Developer
agrees to maintain, at its sole cost and expense, any non-standard improvements within the right-of-way.
Section 13. Open Space Contribution. The Developer shall strive to provide a minimum of ten percent (10%)
of Open Space on the subject property, but in no event shall the Developer provide less than six and one-half percent
(6.5%) of Open Space consistent with the requirements set forth in the Regulating Plan and Concept Book. Should
the Open Space on the subject Property at completion of all phases of the proposed development or within five (5)
years of the Effective Date of this Agreement, whichever is earlier, equal less than the aforementioned ten percent
(10%) goal, then the Developer shall make a cash contribution to the City's Public Parks and Open Space Trust
Fund, as contemplated under Section 3.14.4.b.3 of Miami 21, at the rate of $10.81 per square feet for the square
footage comprising the difference between the ten percent (10%) Open Space goal and the Open Space actually
provided at or above the minimum requirement of six and one-half percent (6.5%) of Open Space on the subject
Property.
Section 14. Local Development Permits.
(a) The development of Block 5 East in accordance with the SAP is contemplated by the Developer.
Redevelopment of Block 5 East 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 when applicable. Such approvals
include, without limitation, the following approvals and permits and any successor or analogous
approvals and permits:
(1) Subdivision plat and/or wavier of plat approvals;
(2) Covenant in Lieu of Unity of Title, Restrictive Covenant, or Unity of Title acceptance or
the release of existing unities or covenants;
(3) Building permits;
(4) Certificates of use and/or occupancy;
(5) Stormwater Permits; and
(6) Any other official action of the City, County, and/or 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
City Commission — Second Reading
requirements and criteria of the Existing Zoning; the Comprehensive Plan; the terms of this
Agreement; and any other local, state, and federal law, statutes, ordinances, rules, and regulations.
Section 15. Necessity of Complying with Local Regulations Relative to Development Permits. The Parties
agree that 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 Developer of the necessity of complying with the regulation
governing said permitting requirements, conditions, fees, terms, licenses, or restrictions.
Section 16. Job Creation and Employment Opportunities. The Developer shall consult with the City and other
local economic development entities regarding job training and job placement services for area City residents
seeking employment opportunities with potential employers which will locate or establish a business on Block 5
East.
(a) Construction Employment. The Developer shall use diligent, good faith efforts to work with the
City in the following areas:
(1) Job Sourcing. The Developer shall require its general contractor to use diligent, good
faith efforts to work with the City's CareerSource South Florida Career Center or similar
program(s) to source job opportunities for both skilled and unskilled labor seeking
employment opportunities within the construction industry.
(2) Local Subcontractor Participation. The Developer shall require its general contractor(s)
to use diligent, good faith efforts to award a minimum of twenty percent (20%) of the
hard construction contract costs to subcontractors located within the City.
(3)
Local Workforce Participation. The Developer shall require its general contractor(s) to
use diligent, good faith efforts to employ a minimum of twenty percent (20%) of on -site
labor from persons residing within the municipal boundaries of the City.
(b) Retail Employment. The Developer anticipates that a number of job opportunities in the
hospitality sector will be generated on Block 5 East. The Developer shall use diligent, good faith efforts to work
with Miami Dade College, through its hospitality institute, or similar institutions and organizations, in consultation
with the City, to place qualified program graduates in employment opportunities created on Block 5 East.
Section 17. Reservation of Development Rights.
(a) For the term of this Agreement, the City hereby agrees that it shall permit the development of
Block 5 East in accordance with the Existing Zoning; the Comprehensive Plan; the Agreement;
and all other local, state, and federal laws, statutes, ordinances, rules, and regulations.
(b) Nothing herein shall prohibit an increase in the density or intensity of development permitted in
the SAP area or Block 5 East in a manner in a consistent with (1) the Existing Zoning and/or the
Comprehensive Plan, (2) any zoning change subsequently requested or initiated by a developer in
accordance with applicable provisions of law, or (3) 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 the Developer or its successor or assigns to continue development of the
City Commission — Second Reading
Property in conformity with Existing Zoning and all active prior and subsequent development
permits or development orders granted by the City.
Section 18. Annual Review.
(a) The City shall review the development that is subject to this Agreement once every twelve (12)
months, commencing twelve (12) months after the Effective Date. The City shall begin the review
process by giving notice to the Developer a minimum of thirty (30) days prior to the anniversary
date of the Agreement, of its intention to undertake the annual review of this Agreement.
(b) Any information required of the Developer during an annual review shall be limited to that
necessary to determine the extent to which the Developer is proceeding in good faith to comply
with the terms of this Agreement.
(c) If the City finds on the basis of competent substantial evidence that the Developer 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 Developer and shall
commence a public hearing before the City Commission.
Section 19. Notices.
(a) All notices, demands, and requests which may or are required to be given hereunder shall, except
as otherwise expressly provided, be in writing and delivered by personal service or sent by United
States Registered or Certified Mail, return receipt requested, postage prepaid, or by overnight
express delivery, such as Federal Express, to the Parties at the addresses listed below. Any notice
given pursuant to this Agreement shall be deemed given when received. Any actions required to
be taken hereunder which fall on Saturday, Sunday, or United States legal holidays shall be
deemed to be performed timely when taken on the succeeding day thereafter which shall not be a
Saturday, Sunday, or legal holiday.
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 Avenue, 9th Floor
Miami, FL 33130
To Developer:
4201 NE 2nd Ave LLC
c/o Helm Equities
150 Broadway, Ste. 800
New York, NY 10038
With a copy to:
City Commission — Second Reading
Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A.
Attn: Javier E. Fernandez, Esq.
Museum Tower, Ste. 2200
150 W. Flagler Street
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 20. Exclusive Venue, Choice of Law, Specific Performance. It is mutually understood and agreed by
the Parties that this Agreement shall be governed by the laws of the State of Florida, and any applicable federal law,
both as to the 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 other legal rights, the Parties shall each have the right to specific performance of this Agreement in
court. Each party shall bear its own attorney's fees. Each party waives any defense, whether asserted by motion or
pleading, that the aforementioned courts are an improper or inconvenient venue. Moreover, the Parties consent to
the personal jurisdiction of the aforementioned courts and irrevocably waive any objections to said jurisdiction. The
Parties irrevocably waive any rights to a jury trial.
Section 21. Voluntary Compliance. 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 22. No Oral Change or Termination. This Agreement and the exhibits and appendices appended
hereto and incorporated herein by reference, if any, constitute the entire Agreement between the Parties with respect
to the subject matter hereof. This Agreement supersedes any prior agreements or understandings between the
Parties with respect to the subject matter hereof, and no change, modification, or discharge unless 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. Any change, modification, or discharge requires two (2) public hearings
before the City Commission.
Section 23. Compliance with Applicable Law. Subject to the terms and conditions of this Agreement,
throughout the term of this Agreement, the Parties shall comply with all applicable federal, state, or local laws,
regulations, codes, ordinances, resolutions, administrative orders, permits, policies and procedures, and orders that
govern or relate to the respective Parties' obligations and performance under this Agreement, all as they may be
amended from time to time.
Section 24. Representations; Representatives. Each party represents to the others that this Agreement has
been duly authorized, delivered, and executed by such party and constitutes the legal, valid, and binding obligations
of such party, enforceable in accordance with its terms.
Section 25. No Exclusive Remedies. No remedy or election given by any provision in this Agreement shall be
deemed exclusive unless expressly so indicated. Wherever possible, the remedies granted hereunder upon a default
of the other party shall be cumulative and in addition to all other remedies of 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
City Commission — Second Reading
provided herein. No waiver or breach of any provision of this Agreement shall constitute a waiver of any
subsequent breach of the same or any other provision hereof, and no waiver shall be effective unless made in
writing.
Section 27. Events of Default.
(a) The Developer shall be in default under this Agreement if the Developer 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 be reasonably cured within thirty (30) days, then the
Developer 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 Developer specifying the nature of such breach; provided,
however, that if such breach cannot be reasonably cured within thirty (30) days, then 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 right 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 the Developer 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 the Developer's rights hereunder shall not
be deemed a breach by the Developer.
Section 28. Remedies Upon Default.
(a) Neither party may terminate this Agreement upon the default of the other party, but shall have all
of the remedies enumerated herein.
(b) Upon the occurrence of a default by a party to this Agreement not cured within the applicable
grace period, the Developer and the City agree that any party may seek specific performance of
this Agreement, and that seeking specific performances 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.
Section 29. Severability. If any term or provision of this Agreement or the application thereof to any person
or circumstance shall, to any extent, hereafter be determined to be invalid or unenforceable, the remainder of this
Agreement or the application of such term 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 30. Assignment & Transfer. This Agreement shall be binding on the Developer and its heirs,
successors, and assigns, including the successor to or assignee of any property interest. The Developer, in its sole
discretion, may assign, in whole or in part, this Agreement or any of its rights and obligations hereunder, or may
City Commission — Second Reading
extend the benefits of this Agreement, to any holder of a property interest without the prior written consent of or any
other approval of the City. Notice of any assignment or transfer shall be provided to the City in writing in
accordance with the requirements of Section 19 within thirty (30) days of any such assignment or transfer. Any
such assignee shall assume all applicable rights and obligations under this Agreement.
Section 31. Obligations Surviving Termination Hereof. Notwithstanding and prevailing over any term or
provision to the contrary contained herein, in the event of any lawful termination of this Agreement, the following
obligations shall survive such termination and continue in full force and effect until the expiration of a one-year term
following the earlier of the effective date of such termination or the expiration of the Term: (a) the exclusive venue
and choice of law provisions contained herein; (b) the rights of any party arising 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 the termination or expiration hereof or is or may be applicable or effective
beyond the expiration or permitted early termination hereof.
Section 32. Lack of Agency Relationship. Nothing contained herein shall be construed as establishing an
agency relationship between the City and the Developer and neither the Developer 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 the Developer or their subsidiaries, divisions, or affiliates.
Section 33. Cooperation; Expedited Permitting; Time 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 the Developer in achieving its
development and construction milestones. The City will accommodate requests from the
Developer's general contractor and subcontractors for review of completed 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 the Developer in order to expedite the processing and issuance of all permit and
license applications and approvals across the various departments and office 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 obligate to issue development permits to the
extent that the Developer does not comply with the applicable requirements of the Existing
Zoning, the Comprehensive Plan, this Agreement, the applicable building codes, or any other
local, state, or federal laws, regulations, statutes, or ordinances.
Section 34. Enforcement.
(a) In the event that the Developer, its 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 any parties or persons violating, or attempting
to violate any covenants set forth in this Agreement. If any such action proceeds to a court of law,
each party shall bear its own attorneys' fees and costs.
City Commission — Second Reading
(c) This enforcement provisions shall be in addition to any other remedies available at law, in equity,
or both.
Section 35. Amendment or Termination by Mutual Consent. This Agreement may not be amended or
terminated during its term except by mutual, written agreement of the Developer and the City. 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 36. Third Party Defense. The City and the Developer 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: (a) consistency challenge pursuant to s.
163.3215, Florida Statutes (2013); (b) a petition for writ of certiorari; (c) an action for declaratory judgment; or (d)
any claims for loss, damage, liability, or expense (including reasonable attorneys' fees). The City and the Developer
shall promptly give the other written notice of any such action, including those that are pending or threatened and all
responses, filings, and pleading with respect thereto.
Section 37. No Conflict of Interest. The Developer agrees to comply with Section 2-612 of the City Code as
of the Effective Date, with respect to conflicts of interest.
Section 38. No Third -Party Beneficiary. No persons or entities other than the Developer and the City, their
heirs, 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.
NOW, WHEREOF, the City and the Developer have caused his Agreement to be duly executed.
[Signature Pages to Follow]
City Commission — Second Reading
IN WITNESS WHEREOF, I have hereunto set my/our hand(s) and seal(s) this day of
,2015.
CITY
ATTEST: CITY OF MIAMI, a municipal corporation located
within the State of Florida
BY:
Todd B. Hannon
City Clerk
APPROVED AS TO FORM AND CORRECTNESS:
Victoria Mendez, Esq.
City Attorney
Daniel J. Alfonso
City Manager
City Commission — Second Reading
IN WITNESS WHEREOF, I have hereunto set my/our hand(s) and seal(s) this day of
, 2015.
DEVELOPER:
WITNESSES: 4201 NE 2ND AVE LLC, a Florida limited
liability company
Print Name: BY:
Print Name:
Print Name: Title:
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
)
)
)
(Authorized Corporate Officer)
The foregoing was acknowledged before me this day of , 2015, by
, in his/her capacity as , on behalf of 4201 NE 2nd Ave LLC.
He/she is personally known to me or produced as identification.
(Notary Seal)
Print Name:
Notary Public, State of Florida
Commission No.
My Commission Expires
City Commission — Second Reading
Exhibit "A"
Legal Description of the Property
City Commission — Second Reading
LOT 5, BLOCK 2, OF BRENTWOOD, ACCORDING TO THE PLAT THEREOF AS RECORDED IN PLAT
BOOK 40, PAGE 66, PUBLIC RECORDS OF DADE COUNTY, FLORIDA AND TRACT 2, OF REVISED
PLAT OF TRACT 'A' AND BLOCKS 1, 2, 3, 8, 9, 10, 11, AND 12, OF BRENTWOOD, ACCORDING TO THE
PLAT THEREOF AND RECORDED IN PLAT BOOK 44, PAGE 6, PUBLIC RECORDS OF MIAMI-DADE
COUNTY, FLORIDA.
SAID LANDS SITUATE, LYING AND BEING IN THE CITY OF MIAMI, MIAMI-DADE COUNTY,
FLORIDA, AND CONTAINING 80,980 SQUARE FEET (1.8590 ACRES) MORE OR LESS.
Also known as: 220 NE 43rd Street, Miami, FL 33137
Folio ID No. 01-3219-009-0070
City Commission — Second Reading
Exhibit "B"
Miami Design District Retail Street SAP Regulating Plan & Concept Book
Original copies of the Miami Design District SAP Regulating Plan and Concept Book are on file and available for
public review at the Office of the City Clerk, City of Miami, 3500 Pan American Drive, Miami, FL 33133
City Commission — Second Reading