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Home My WebLink AboutFR & SR Exhibit B11-01196da3 - Exhibit B Prepared by and return to: Steven J. Wernick, Esq. Akerman LLP One SE Third Avenue, 25th Floor Miami, FL 33131 PARTIAL RELEASE AND AMENDMENT TO AMENDED AND RESTATED DEVELOPMENT AGREEMENT THIS PARTIAL RELEASE AND AMENDMENT TO AMENDED AND RESTATED DEVELOPMENT AGREEMENT (this "Amendment") is made as of the day of , 2016 by and between INSTITUTE OF CONTEMPORARY ART, MIAMI, INC., a Florida not -for -profit corporation ("ICA") and CITY OF MIAMI, FLORIDA, a municipal corporation and a political subdivision of the State of Florida ("City"). WHEREAS, the City and Flagler Holding Group, Inc. a Florida corporation, Monte Carlo Associates (Del.) LLC, Half -Circle Property (Del.) LLC, Norwegian Wood Acquisitions, LLC, Oak Plaza Associates (Del.) LLC, Ben Newton LLC, Sweet Virginia Acquisitions LLC, Dacra Design Moore (Del.) LLC, FCAA, LLC, Dacra Design 414 1 LLC, Penny Lane Acquisitions, LLC, Uptown Girl Development, LLC, Sun King, LLC, MDDA Morning Dew, LLC, and Tiny Dancer Acquisitions, LLC, all Delaware limited liability companies unless noted (each, individually, "Developer Party", and collectively, the "Developer Parties"), entered into that certain Amended and Restated Development Agreement, dated as of September 5, 2014 and recorded in Official Records Book 29314, at Page 1880, of the Public Records of Miami -Dade County, Florida (the "Development Agreement"); and WHEREAS, the Development Agreement sets forth the zoning of, and conditions by which the properties located within the Miami Design District Retail Street Special Area Plan ("SAP") are to be developed; and WHEREAS, one of the original Developer Parties, Sweet Virginia Acquisitions LLC ("Sweet Virginia") was the fee simple owner of two properties within the SAP located at 53 N.E. 41st Street, Miami, Florida 33137 and at 61 N.E. 41st Street, Miami, Florida 33137, referred to in the Concept Book as Parcels 39 and 40 (collectively, the "Property"), and more particularly described in the attached Exhibit A; and WHEREAS, Midnight Rambler, LLC, a Delaware limited liability company ("Midnight Rambler") acquired the Property from Sweet Virginia, as evidenced by that certain Special Warranty Deed dated as of July 25, 2013, recorded in Official Record Book 28746, at Page 3748 of the Public Records of Miami -Dade County, Florida; and WHEREAS, ICA acquired the Property from Midnight Rambler, as evidenced by that certain Special Warranty Deed dated as of December 18, 2014, recorded in Official Record Book 29443, at Page 295 of the Public Records of Miami -Dade County, Florida; and WHEREAS, ICA is currently the fee simple owner of the Property and a Developer Party, pursuant to Section 7 of the Development Agreement; and WHEREAS, the City has issued certain approvals under the City's Zoning Ordinance ("Miami 21") to allow ICA's development of the Property as a contemporary art museum separate and apart from the development program contemplated by the SAP; and {36568601;1}1 ICA - Amendment to Amended + Restated Development Agreement — Amendment to Amended and Restated Development Agreement WHEREAS, as part of the aforementioned approvals, on June 25, 2015, the City Commission approved an amendment to the Property's future land use map designation to "Major Institutional, Public Facilities, Transportation, and Utilities", pursuant to Ordinance No. 13529, and a companion amendment to the Property's zoning to CI — Civic Institutional under Miami 21, pursuant to Ordinance No. 13530; and WHEREAS, on October 22, 2015, the City Commission denied an appeal, and upheld the decision by the City's Planning Zoning and Appeals Board approving an Exception for a community facility, with conditions and certain identified Waivers from Miami 21 standards, pursuant to Resolution No. R-15-0472; and WHEREAS, the City Commission and the Developer Parties are in the process of amending the SAP to remove the Property from the area subject to the SAP' s regulations; and WHEREAS, pursuant to Section 36 of the Development Agreement, the Development Agreement may be amended by "mutual agreement of a Developer Party and the City", provided that the City has held, prior to the amendment, two public hearings before the City Commission to consider and deliberate regarding such amendment; and WHEREAS, the City held public hearings before the City Commission on , 2016, and again on , 2016, and this Amendment has been approved by the City Commission; and WHEREAS, ICA and the City desire to amend the Development Agreement as set forth herein. NOW, THEREFORE, in consideration of the receipt of good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, ICA and the City hereby agree as follows: 1. Incorporation of Recitals. The above recitals are true and correct and are incorporated herein as if set forth in full. 2. Defined Terms. All defined terms used herein shall have the meaning ascribed to such terms in the Development Agreement, unless otherwise noted. 3. Conflict. In the event of a conflict between the terms and provisions contained within this Amendment and the terms and provisions contained within the Development Agreement with regard to the subject matter hereof, the terms and provisions contained within this Amendment shall control. All the terms and conditions of the Development Agreement not amended hereby shall remain in full force and effect. 4. Release. The parties hereto mutually desire that the Property: (i) be deleted from the Miami Design District Special Area Plan, and instead developed exclusively subject to CI — Civic Institutional zoning under Miami 21 and (ii) be released from the Development Agreement. 5. Miscellaneous. This Amendment and the obligations of the parties hereunder shall survive any conveyance of the Property and shall be binding upon and inure to the benefit of the parties hereto and their respective legal representatives, successors and assigns. [Signatures on the following page] {36568601;1 }2 ICA - Amendment to Amended + Restated Development Agreement — Amendment to Amended and Restated Development Agreement IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first above written. CITY OF MIAMI, FLORIDA, a municipal corporation and a political subdivision of the State of Florida By: Name: Title: INSTITUTE OF CONTEMPORARY ART, MIAMI, INC., a Florida not -for -profit corporation By: Name: Title: {36568601;1 } 3 ICA - Amendment to Amended + Restated Development Agreement — Amendment to Amended and Restated Development Agreement IN WITNESS WHEREOF, the undersigned, being the Developer Parties, as defined in the Development Agreement, do hereby consent and join in the foregoing Amendment. OAK PLAZA ASSOCIATES (DEL.) LLC, a Delaware limited liability company, for itself and as successor by merger to Monte Carlo Associates (Del.) LLC, Half -Circle Property (Del.) LLC, Ben Newton, LLC, Sweet Virginia Acquisitions, LLC, Dacra Design Moore (Del.) LLC, FCAA, LLC, Penny Lane Acquisitions, LLC, by MIAMI DESIGN DISTRICT ASSOCIATES MANAGER, LLC, a Delaware limited liability company, its manager By Steven Gretenstein, Vice President NORWEGIAN WOOD ACQUISITIONS, LLC, a Delaware limited liability company, by MDDA SWEET BIRD MANAGER, LLC, a Delaware limited liability company, its manager By Steven Gretenstein, Vice President LOVELY RITA CQUISITIONS, LLC, a Delaware limited liability company, by MDDA SWEET BIRD MANAGER, LLC, a Delaware limited liability company, its manager By Steven Gretenstein, Vice President DACRA DESIGN 4141, LLC, a Delaware limited liability company, by DACRA 4141 MANAGING MEMBER, INC., a Florida corporation, its managing member By Steven Gretenstein, Vice President {36568601;1}4 ICA - Amendment to Amended + Restated Development Agreement — Amendment to Amended and Restated Development Agreement UPTOWN GIRL DEVELOPMENT, LLC, a Delaware limited liability company, by MDDA Stardust Manager, LLC, a Delaware limited liability company, its Manager By Steven Gretenstein, Vice President TINY DANCER ACQUISITIONS, LLC, a Delaware limited liability company, by MDDA Stardust Manager, LLC, a Delaware limited liability company, its Manager By Steven Gretenstein, Vice President SUN KING, LLC, a Delaware limited liability company by MDDA Phase III Holdings, LLC, a Delaware limited liability company, its sole member by Miami Design District Associates Manager, LLC, a Delaware limited liability company, its Manager By Steven Gretenstein, Vice President MDDA MORNING DEW, LLC, a Delaware limited liability company by MDDA Phase III Holdings, LLC, a Delaware limited liability company, its sole member by Miami Design District Associates Manager, LLC, a Delaware limited liability company, its Manager By Steven Gretenstein, Vice President {36568601;1 } 5 ICA - Amendment to Amended + Restated Development Agreement — Amendment to Amended and Restated Development Agreement FLAGLER HOLDING GROUP, INC., a Florida corporation By Ricardo Dunin, President {36568601;1 } 6 ICA - Amendment to Amended + Restated Development Agreement — Amendment to Amended and Restated Development Agreement EXHIBIT A LEGAL DESCRIPTION Lots 19, 20 and the West % of Lot 21, Block 8, of BILTMORE, according to the Plat thereof, as recorded in Plat Book 6, at Page 67, of the Public Records of Miami -Dade County, Florida. {36568601;1 } 7 ICA - Amendment to Amended + Restated Development Agreement — Amendment to Amended and Restated Development Agreement