HomeMy WebLinkAboutExhibit - SUBThis instrument Prepared by and
after Recording Return To:
Daniel M. Mackler, Esq.
Gunster, Yoakley & Stewart, PA
600 Brickell Avenue
Brickell World Plaza, Suite 3500
Miami, Florida 33131
THIS DOCUMENT IS A SUBSTITUTION. THE
ORIGINAL CAN BE SEEN AT THE END OF
THIS DOCUMENT.
PUBLIC BENEFIT AGREEMENT REGARDING CONSTRUCTION OF
THE NEW FIRE STATION NO. 4
THIS PUBLIC BENEFIT AGREEMENT is entered this day of
2018 by and between SOUTHSIDE PLACE, LLC, a Florida limited liability company
("Southside"), and the CITY OF MIAMI, FLORIDA, a municipal corporation and a political
subdivision of the State of Florida ("City") (Southside and the City together referred to as the
"Parties").
RECITALS:
WHEREAS, the City owns the City Property, which is currently valued at approximately
$13,382,500.00 (based on an average of two appraisals), and currently contains an operating fire
station; and
WHEREAS, Southside owns the abutting Southside Property, which is currently valued
at approximately $4,477,500.00 (based on an average of two appraisals) and currently contains a
multi -family apaittnent building; and
WHEREAS, Southside shall consolidate the Southside Property with the City Property,
for no compensation, for creation of two (2) separate parcels — one shall be an Air Rights Parcel
owned by Southside, and the other shall be a Fee Parcel owned by the City, as defined in Section
3 below; and
WHEREAS, Southside shall construct a new, larger, state of the art Fire Station for the
City on the Fee Parcel at a cost of approximately Eight Million Dollars ($8,000,000.00) at
Southside's expense, consisting of approximately thirty-one thousand seven hundred and eight
(31,708) square feet of space, two floors with a mezzanine, new workout equipment, and ample
space for the different size fire -rescue trucks the City will be obtaining; and
WHEREAS, Southside shall contribute Two Million Two Hundred Thousand Dollars
($2,200,000.00) as an additional Public Benefits Contribution for the purchase of one (1) ladder
truck, one (1) engine truck, two (2) fire -rescue trucks and two (2) Ford trucks, and a furnishing,
fixtures, and equipment ("FF&E") allowance of One Hundred Thousand Dollars ($100,000.00)
and the Advance Profit Participation Payment provided for pursuant to Section 38 below and
Exhibit H; and
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MIA ACTIVE 4685362.6
WHEREAS, Southside shall convey the Public Parking Spaces (as defined below), i.e., all
the parking spaces on the first parking level of the Parking Garage that Southside shall construct,
consisting of approximately fifty (50) parking spaces valued at approximately One Million Five
Hundred Thousand Dollars ($1,500,000.00) for use by the City, with management by the City's
Department of Off -Street Parking, also known as the Miami Parking Authority ("MPA"); and
WHEREAS, in addition to the new Fire Station, Southside also intends to develop a mixed
use tower with first (lst) floor retail and a parking garage; and
WHEREAS, the Southside Property is currently zoned Urban Core Transect (T6-24A-O)
and is designated Restricted Commercial, in the Miami Comprehensive Neighborhood Plan;
WHEREAS, the City Property is currently zoned Civic Institution and is designated Major
Institutional, Public Facilities, Transportation and Utilities in the Comprehensive Plan; and
WHEREAS, in furtherance of Southside's construction of the Project, Southside shall
provide a Profit Participation Payment, including an Advance Profit Participation Payment of
Eight Hundred Thousand Dollars ($800,000), as provided for pursuant to Section 38 below and
Exhibit H, with profits of any potential future sale or lease going directly towards the City' s
Department of Fire -Rescue; and
WHEREAS, in furtherance of Southside's conveyance of the Southside Property to the
City, construction of the new Fire Station and a public/private Parking Garage, in addition to the
other Public Benefits, the City has agreed to the creation of the Fee Parcel and the Air Rights
Parcel, as defined in Section 3 below; and
WHEREAS, the City Commission, pursuant to Resolution No. R-17-0330, adopted on
July 13, 2017, has authorized the City Manager to execute this Agreement upon the terms and
conditions as set forth below and to further take all actions required to effectuate the intent of this
Agreement; and
WHEREAS, Southside is authorized to execute this Agreement upon the terms and
conditions set forth below; and
WHEREAS, Southside has agreed to provide the Public Benefits within the Project and
the City has agreed to the creation of the Parcels, subject to the terms and conditions set forth in
this Agreement;
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 this Agreement, unless otherwise expressly provided:
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(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 Southside, 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 this Agreement. This Agreement and the attached
exhibits shall be interpreted to avoid conflicts; provided, however, that
this Agreement shall be deemed to control in the event of an express
conflict between the exhibits and this Agreement.
Section 3. Definitions. Capitalized terms which are not specifically defined herein
shall have the meaning given in Miami 21.
"Agreement" means this Agreement between the City and Southside
regarding construction of the Project.
"Air Rights Parcel" means the parcel created by the City and owned by
Southside, consisting of the Ground Floor Retail, Parking Garage and
Mixed -Use Tower, as further identified in Exhibit B.
"Approvals" means the final approvals and building permits required for
the construction of the Project. The Approvals shall include, without
limitation: (i) a change of Future Land Use Map and Zoning Map
designation for the City Property from "Major Public Facility" and "CI" to
"Restricted Commercial" and "T6-24A-O"; (ii) approval of any documents
required for the specific purpose of creating the Parcels; (iii) approval of a
site plan for the Project, including the approval of any Waivers which may
be required and (iv) approval of any other documents or resolutions that
may be required for the construction of the Project.
"City" means the City of Miami, a municipal corporation and a political
subdivision of the State of Florida, and all departments, agencies, and
Instrumentalities subject to the jurisdiction thereof.
"City Property" means the parcel of property, consisting of folios #
0141380510420, 0141380510390, 0141380510410, and 0141380510400
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MIA ACTIVE 4685362.6
described on Exhibit C attached hereto, as to which the City has obtained
the following appraisals: (a) Appraisal dated April 20, 2017, from Joseph J.
Blake & Associates, Inc., containing a valuation of $14,800,000, which is
attached as Exhibit D and (b) Appraisal dated April 29, 2017, from Armada
Appraisal & Consulting Company containing a valuation of $11,965,000,
which is attached as Exhibit E.
"Closing" means the simultaneous occurrence of the following: (a)
Southside's conveyance of the Southside Property to the City; (b) the
consummation by the Parties of the creation of the Parcels; and (c) the
Parties shall execute and deliver all of the Closing Documents.
"Collective Ownership Structure" means Southside's right to convert and
submit the overall Project or portions thereof, including the Fire Station, to
a condominium form of ownership or another collective ownership
structure.
"Comprehensive Plan" means the comprehensive plan known as the
Miami Comprehensive Neighborhood Plan, adopted by the City pursuant to
Chapter 163, Florida Statutes (2016), meeting the requirements of Section
163.3177, Florida Statutes (2016), Section 163.3178, Florida Statutes
(2016), and Section 163.3221(2), Florida Statutes (2016), which is in effect
as of the Effective Date.
"Construction" means the building of the various components of the
Project, and shall include any clearing or other similar site preparation work
on the Parcels.
"County" means Miami -Dade County, a political subdivision of the State
of Florida.
"Effective Date" means the date the City Manager executed this Agreement
with approval from the City Commission.
"Fee Parcel" means the parcel created and owned by the City, consisting
of the new Fire Station, as further identified in Exhibit B.
"Fire Department" means the City of Miami Fire Department.
"Fire Station" means a turn -key, approximately 31,078 square foot, state
of the art fire station, with an additional $100,000 allowance for furniture,
fixtures and equipment (e.g., kitchen equipment, but will exclude fire-
fighting equipment) within the Project, for the exclusive use of the Fire
Department that will be constructed on the Fee Parcel.
"Fire Station Improvements" means the construction of the new Fire
Station No. 4 consisting of approximately 31,078 square feet of gross
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building area for a Fire -Rescue facility as part of the Project to be developed
for the exclusive use and ownership of the City of Miami Fire Department.
"Impact Fees" means a fee imposed by any local government or agency
based upon the new development's proportionate share of the average cost
of new development including impact fees imposed by Miami -Dade
County, the City of Miami, and the Miami -Dade County Public Schools
System.
"Impact Fee Credit" shall mean the credit applied by the City to satisfy
any and all: (1) Fire Rescue Impact Fees for the Project, as set forth in
Section 13-10 of the City Code of Ordinances; and (2) Impact fees
generated by the development of the Fire Station Improvements on the Fee
Parcel, as set forth in Sections 13-9 through 13-12 of the City Code of
Ordinances.
"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 applicable ordinances, resolutions, regulations,
comprehensive plans, land development regulations, and rules adopted by a
local, state, or federal government affecting the development of the Project.
"Parcels" mean both the Air Rights Parcel and Fee Parcel, as further
identified in Exhibit B.
"Parking Garage" means the new parking garage, containing
approximately 255 parking spaces, to be constructed by Southside as part
of the Project.
"Profit Participation Payments" is defined in Exhibit H.
"Project" means the proposed mixed -use development initially proposed to
consist of approximately 21 stories and up to 196 residential units
containing the Parking Garage, approximately 5,346 square feet of retail use
on the first (1st) floor located on the Air Rights Parcel, and the Fire Station,
that Southside shall construct upon the Fee Parcel.
"Public Benefits" shall be those described in Exhibit A.
"Public Facilities" means major capital improvements for the benefit of the
public, including, but not limited to, transportation, sanitary sewer, solid
waste, drainage, potable water, educational, parks and recreational, streets,
parking, and health systems and facilities.
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"Public Parking Spaces" means all the parking spaces on the first parking
level of the Parking Garage consisting of approximately fifty (50) parking
spaces to be conveyed to the City' s Department of Off -Street Parking.
"Southside" means the person or entities undertaking the development of
the Project, defined in the preamble to this Agreement as SOUTHSIDE
PLACE, LLC, a Florida limited liability company, its successors and
assigns.
"Southside Conveyance" means Southside's conveyance of the Southside
Property to the City.
"Southside Property" means the parcel of property, folio #
0141380510430, described on Exhibit F attached.
Section 4. Purpose. The purpose of this Agreement is for the City to authorize
Southside to develop the Project pursuant to the site plan dated June 6, 2017 and prepared by
Revuelta Architecture International and attached hereto as Exhibit G.
Section 5. Intent. Southside and the City intend for this Project to be construed and
implemented so as to effectuate the Project pursuant to the site plan and this Agreement.
Specifically, the Parties, based on substantial benefits to each, intend for the City to gain ownership
of the Southside Property, receive a new state-of-the-art Fire Station and receive other Public
Benefits as further described herein. In exchange, the City will assist in effectuating the Approvals
as defined herein, allowing Southside to construct the Project.
Section 6. Applicability. This Agreement and any rights and obligations contained
herein applies only to the Project.
Section 7. Term of Agreement, Effective Date, and Binding Effect. This
Agreement shall have a term of five (5) years with the right of Southside to request an extension
of the term for an additional five (5) years by providing written notice to the City Manager prior
to the expiration of the initial term, which shall be granted in the City Manager's reasonable
discretion. Thereafter, the City Manager may extend the term at the City Manager's sole discretion,
but in no event shall such extension exceed thirty (30) years from the Effective Date. 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. Additionally, this Agreement
shall be recorded in the public records of Miami -Dade County and filed with the City Clerk. If
Southside has not commenced construction during the initial term of this Agreement, as may be
extended hereunder, the City may seek alternative development plans for the City Property, which
do not include Southside or the Project.
Section 8. Filing of Applications for Approvals. Southside hereby agrees to file the
necessary applications for the Approvals, and the City will assist with such Approvals where
possible and, as applicable, execute or otherwise join such applications, within thirty (30) days of
the execution of this Agreement. The Parties agree that any modifications required to the Project
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MIA ACTIVE 4685362.6
and/or the Approvals required in order to permit the Project will be reviewed pursuant to the land
regulations in effect at that time.
Section 9. Fire Station Construction. The City and Southside agree that Southside
will construct the Fire Station as part of the Project and deliver said Fire Station to the City upon
the issuance of a final Certificate of Occupancy. The City shall retain ownership of the Fire Station
at all times. Subject to the foregoing, the Parties agree that the Fire Station will be completed in
substantial compliance with all of the following:
(a) Fire Station Plan. The Fire Station shall be constructed in substantial
conformance with the conceptual development plans attached as Exhibit
G or as otherwise mutually agreed to by the Parties. The final plans for
the Fire Station shall be subject to the City's prior review and approval.
(b) Proposed Plan Changes to the Fire Station Plan. Any material changes,
modifications, amendments or substitutions to: (a) increase the gross
floor area of the Fire Station beyond 31,078 sq. ft.; or (b) which
substantially modify the plans for the Fire Station, provided in Exhibit
G, shall be accomplished via a change order approved in writing by the
City Manager and Southside (collectively, the "Proposed Plan
Change"). Design changes required for compliance with the Approvals
and Florida Building Code standards shall not constitute Proposed Plan
Changes. The Parties shall review and approve any and all Proposed Plan
Change(s) to determine the effect of the Proposed Plan Change upon the
Fire Station, including the construction budget and construction
schedule. The City shall be solely responsible for payment to Southside
of any increases to the costs of construction for the Fire Station that result
from any Proposed Plan Changes expressly requested by the City after
the design development plans have been reviewed and approved by the
Parties. The amount due by the City in connection with any Proposed
Plan Changes shall not exceed the total actual costs charged to Southside
by the general contractor; notwithstanding the above, the general
contractor shall not be permitted to charge greater than market value for
such Proposed Plan Changes.
(c) Commencement of Construction. Upon: (a) the issuance of the
Approvals, to the extent deemed reasonably necessary by Southside; (b)
Southside's reasonable satisfaction that the condition of the City
Property and title thereto are sufficient for the Project; and (c) the Parties'
agreement to the form and substance of the Closing Documents,
Southside shall promptly proceed with the construction of the Fire
Station and shall use its reasonable efforts to complete construction of
the Fire Station within thirty-six (36) months, as more particularly
defined in Section 16. A Temporary Certificate of Occupancy ("TCO")
for the mixed -use tower and Parking Garage shall not be issued prior to
(1) the issuance of the TCO for the Fire Station and, (2) the completion
and transfer by Southside, as applicable, of the other Public Benefits.
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Construction shall comply with all applicable Building, Zoning, City and
County codes, and other applicable laws, rules and regulations required
to be complied with as part of the process of building permit issuance.
Upon commencement of construction of the Fire Station, the City shall
no longer have access to the current parking area for the existing fire
station.
(d) Alternate Parking. During construction, Southside shall provide alternate
parking spaces for Fire Department employees of the existing fire station
within 1,000 feet of the Parcels. Southside shall have the right to
terminate this alternate parking area once both the TCO for the Fire
Station is issued and the Fire Station Parking is available.
(e) Costs. Southside shall construct the Fire Station at its sole cost and
expense, up to and not to exceed $8,000,000, subject to Section 9(b)
above. Notwithstanding any language in this Agreement to the contrary,
any costs or expenses incurred to construct the Fire Station, which are
not a result of the City' s request, delay, or Proposed Plan Changes, shall
be paid for by Southside.
Floor Area Limitation. The Fire Station' s building Floor Area shall not
exceed 31,078 gross square feet, inclusive of mechanical and common
areas.
Design and Review Process. All plans and applications related to the Fire
Station are subject to review and approval by the City for compliance
with this Agreement and all other applicable laws, regulations and
ordinances.
(h) Fire Station Permitting Fees. The City shall be solely responsible for
payment of any and all municipal or governmental fees from any
jurisdiction having authority, including but not limited to City, County,
State and Federal related to any permits, certifications, development
orders, inspections and approvals required for the development of the
Fire Station, including but not limited to fees for building permits, public
works approvals, zoning approvals, Certificates of Use, Certificates of
Occupancy, Department of Environmental Resource Management
approvals and Miami -Dade County Water and Sewer Department
approvals and agreements to provide water and sewer service. The City
shall also be responsible for all other permitting, municipal or
governmental fees related to construction of the interior finishes and
interior build -out, and occupancy of the Fire Station.
(i)
Water and Sewer Connection Charges and Utilities. Southside at its sole
cost and expense shall (a) pay all water and sewer connection charges
and (b) provide and construct all water and sewer infrastructure required
to support the Project and the Fire Station.
MIA ACTIVE 4685362.6
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(j) Cooperation; Expedited Permitting; and Time is of the Essence.
(i)
The Parties agree to cooperate with each other to the full extent
practicable pursuant to the terms and conditions of this Agreement.
The Parties agree that time is of the essence in all aspects of their
respective and mutual responsibilities pursuant to this Agreement.
The City shall use its best efforts to expedite the permitting and
approval process for the Project in an effort to assist Southside in
obtaining the Approvals and achieving its development and
construction milestones, including, without limitation, substantial
completion of the Fire Station.
(ii) Notwithstanding the foregoing, the City shall not be obligated to
issue any permit to the extent Southside does not comply with the
applicable requirements of the Approvals, the Comprehensive Plan,
this Agreement, applicable building codes, and any other statute,
ordinance, rule, or regulation.
(iii) Southside shall have the right to enter upon and inspect the City
Property and otherwise conduct such tests and investigations as
Southside deems necessary in connection with the development of
the City Property. The foregoing shall include, without limitation,
water and soil sampling and other environmental inspections,
obtaining surveys and geotechnical testing.
(iv) The City shall grant to Southside a general access easement to enter
upon the City Property in order to construct the Fire Station.
(v) Southside shall have the right to review and inspect title to the City
Property in order to determine its status.
(k) Indemnity; Insurance. Southside shall indemnify, defend and hold
harmless the City and its officials and employees, for claims (collectively
referred to as "Indemnitees") and each of them from and against all loss,
costs, penalties, fines, damages, claims, expenses (including attorneys'
fees) or liabilities (collectively referred to as "Liabilities") by reason of
any injury to or death of any person or damage to or destruction or loss
of any property arising out of, resulting from, or in connection with (i)
the negligent performance or non-performance of the services
contemplated by this Agreement (whether active or passive) of Southside
or its employees, contractors or subcontractors (collectively referred to
as "Southside") which is directly caused, in whole or in part, by any act,
omission, default or negligence (whether active or passive or in strict
liability) of the Indemnitees, or any of them, or (ii) the failure of
Southside to comply materially with any of the requirements herein, or
the failure of Southside to conform to statutes, ordinances, or other
regulations or requirements of any governmental authority, local, federal
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MIA ACTIVE 4685362.6
or state, in connection with the performance of this
Agreement. Southside expressly agrees to indemnify, defend and hold
harmless the Indemnitees, or any of them, from and against all liabilities
which may be asserted by any employee or former employee of
Southside, or any of its contractors or subcontractors, as provided above,
for which Southside's liability to such employee or former employee
would otherwise be limited to payments under the state's Workers'
Compensation or similar laws. Southside further agrees to indemnify,
defend and hold harmless the Indemnitees from and against (i) any and
all Liabilities imposed on account of the violation of any law, ordinance,
order, rule, regulation, condition, or requirement, related directly to
Southside's negligent performance under this Agreement, compliance
with which is required by this Agreement of Southside, and (ii) any and
all claims, and/or suits for labor and materials furnished by Southside or
utilized in the performance of this Agreement or otherwise.
In the event that any third -party asserts a claim against Southside and/or
the Indemnitees for which Southside is defending the Indemnitees
relating to the services provided, Southside shall have the right to select
its legal counsel for such defense, subject to the approval of the City,
which approval shall not be unreasonably withheld. It is understood and
agreed that in the event that counsel selected by Southside charges rates
greater than those customarily paid by the City at the time that such claim
is asserted, the parties shall, in good faith, attempt to agree upon such
rates or upon an allocation of payment of such rates.
This section shall be interpreted to comply with Sections 725.06 and/or
725.08, Florida Statutes. Southside's obligations to indemnify, defend
and hold harmless the Indemnitees shall survive the termination of this
Agreement.
Southside understands and agrees that any and all liabilities regarding the
use of any contractor or subcontractor for Services related to this
Agreement shall be borne solely by Southside throughout the duration of
this Agreement and that this provision shall survive the termination of
this Agreement. Southside further understands that its contractors or
subcontractors shall provide the City with the very same insurance
requirements as those Southside shall provide the City.
(1) Insurance. Southside shall and shall cause its general contractor and
subcontractors to obtain, and maintain in force for the term of this
agreement, adequate insurance coverage deemed acceptable by the City
as defined in the composite insurance exhibit included as Exhibit I, and
made part of this agreement
Section 10. Fire Station Operation. The Parties hereby agree upon the following with
respect to the operation of the Fire Station:
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(a) Environmental Remediation and Indemnification Subject to the limits
provided for in Florida Statutes 768.28, the City agrees to indemnify and
hold harmless Southside from and against any and all loss, cost, expense
or other liability incurred by Southside as a result of the presence of any
hazardous materials or waste (all as defined under applicable local, state,
or federal laws, rules, and regulations) on the City Property. Specifically,
City shall be responsible for any damage, expense, or cost arising from
the fuel tanks currently on City Property or any remediation required by
release of hazardous materials therefrom. It is agreed to by Southside and
City that once and if the presence of any hazardous materials or waste on
the City Property is confirmed and notice is provided to the City of such,
either City or Southside may (i) elect to unilaterally terminate this
Agreement or (ii) agree to pursue remediation subject to the limits
provided for herein.
(b) Occupancy. Upon receipt of TCO for the Fire Station, the Fire
Department will be permitted to take possession of the Fire Station.
(c) Nuisance. As detailed in Section 316.271, Florida Statutes, Fire
Department service vehicles' sirens, whistles or bells "shall not be used
except when the vehicle is operated in response to an emergency call, in
which event the driver of the vehicle shall sound the siren, whistle, or
bell when reasonably necessary to warn pedestrians and other drivers of
the approach thereof" If the Fire Department service vehicles are not
responding to an emergency call or warning pedestrians or other drivers,
then the use of sirens will be prohibited in order to avoid any disturbance
and nuisance to residents and neighbors. The Fire Department shall adopt
and enforce policies that minimize the noise caused by the same, or at
the Fire Station.
(d) Utilities and Operating Expenses. The City shall be responsible for
payment of expenses directly serving and solely attributable to the Fire
Station including but not limited to utility expenses such as electricity,
cable, water and sewer service, and operational expenses including but
not limited to maintenance costs. The Southside shall be responsible for
installation of separate meters and/or connections for electrical, cable,
water and sewer utilities to service the Fire Station. The cost of other
services such as solid waste removal and any costs of shared facilities
within the Project allocable to the Fire Station will be paid by the City.
(e) Taxes. The Fire Department' s use and ownership of the Fire Station is
solely for the specific, exclusive municipal public purpose and essential
public service of providing a Fire -Rescue Station and is not subject to ad
valorem taxation. In the event the County Property Appraiser assesses
ad -valorem taxes against the Fire Station or the remaining fee interest
owned by the City after the Closing, Southside will cooperate with the
City's efforts to ensure that no taxes are assessed against the Fire Station,
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at no expense to the City. Southside and City shall each be responsible
for the payment of any taxes for which its property is assessed after both
the Closing has been completed and the Collective Ownership Structure
and/or reciprocal easement and operating agreement has been entered
into by the Parties. Until such time, Southside shall be responsible for the
payment of any taxes assessed against the Fire Station as a result of this
Agreement and the project contemplated herein.
Section 11. Closing
(a) Closing. The Closing shall occur no later than one hundred and eighty
days (180) days from the Effective Date.
(b) Closing Documents. Upon the Closing, the Parties shall simultaneously
enter into the following documents, in addition to any other documents
necessary to effectuate the Closing, all of which shall be in form and
substance reasonably acceptable to the Parties (collectively, the "Closing
Documents"):
(i) In order to consummate the Southside Conveyance, Southside shall
execute a deed to the City for the Southside Property (the
"Southside Deed").
(ii) In order to consummate the creation of the Air Rights Parcel, the
Parties shall execute (a) any documents, deeds, etc. establishing the
Air Rights Parcel and Southside's ownership thereof, and (b) all
other documents reasonably required and legally permissible in
order to maximize the development rights to the Project.
(iii) The Parties shall execute a Declaration of Restrictive Covenants
providing for (a) various easements of support, access and utilities,
(b) prohibited uses on the retail space, (c) the terms for the
public/private use of the Parking Garage and the Fire Station
Parking, (d) the provisions of clause (iv) below, and (e) such other
matters regarding the interrelationship between the Fire Station and
the rest of the Project.
(iv) The Parties shall execute such title affidavits and other documents
reasonably and customarily required by each Party's applicable title
company in order to insure title thereto.
(v) The Parties shall execute such other documents as are reasonably
required to effectuate the transactions contemplated by this
Agreement.
Section 12. Permitted Uses and Building Intensities.
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(a) The density proposed for the Project shall not exceed that which is
permitted by the Approvals.
(b) The uses permitted on the Parcels include, but are not limited to, the
following uses: office, hotel, retail, entertainment, and any other uses
permitted by the Approvals.
(c) Nothing herein shall prohibit Southside from requesting an increase in
the density or intensity or modification of any other zoning regulation of
the Project permitted on the Property, as long as such increase in density
or intensity or modification of any other zoning regulation is consistent
with the Comprehensive Plan, the Approvals and this Agreement as it
exists on the Effective Date, and said increase does not negatively affect
the Fire Station' s provision of service.
(d) The Project is eligible for the bonus height and Floor Lot Ratio benefits
due to the Public Benefits that the Project encompasses.
(e) Public Benefits resulting in additional benefits are those delineated in
Exhibit A. The total costs of the public benefits for the Project are above
and beyond the monetary payment which would be required under the
Public Benefits Trust Fund regulations of Miami 21 and Chapter 62 of
the City Code.
Section 13. Approvals. Once and if the Approvals are granted, the Approvals shall
govern development of the Parcels for the duration of this Agreement.
Section 14. Local Permits.
(a) Construction of the Project in accordance with the Approvals
contemplated by Southside. The Project may require additional permits
or approvals from the City, County, State, or Federal government and
any divisions thereof. Subject to required legal process and approvals,
the City shall make a good faith effort to take all reasonable steps to
cooperate with and facilitate all such approvals, including acting as an
applicant or co -applicant when applicable. Such approvals include,
without limitation, the following approvals and permits and any
successor or analogous approvals and permits:
(i) Subdivision plat or waiver of plat approvals;
(ii) Covenant in Lieu of Unity of Title, Unity of Title, or Restrictive
Covenant acceptance or the release of existing unities or covenants;
(iii) Building permits;
(iv) Certificates of use;
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MIA ACTIVE 4685362.6
(v) Certificates of occupancy;
(vi) Stormwater Permits;
(vii) Any other official action of the City, County, or any other
government agency having the effect of permitting of the Project.
(b) In the event that the City substantially modifies its Land regulations
regarding site plan approval procedures, authority to approve any site
plan for a project on the Parcels shall be vested solely in the City
Manager's designee(s), with the recommendation of the Planning
Director and other departments, as applicable. Any such site plan shall
be approved if it meets the requirements and criteria of the Approvals,
the Comprehensive Plan, and the terms of this Agreement.
Section 15. No Contract Zoning/Express Reservation of Police Powers. The City
cannot, and hereby specifically does not, waive or relinquish any of its regulatory approval or
enforcement rights and obligations as it may relate to regulations of general applicability which
may govern any of the properties referenced in this Agreement. Nothing in this Agreement shall
be deemed to create an affirmative duty of City to abrogate its sovereign right to exercise its police
powers by approving or disapproving or taking any other action in accordance with its zoning and
land use codes, administrative codes, ordinances, rules and regulations, federal laws and
regulations, state laws and regulations, and grant agreements. In addition, nothing herein shall be
considered zoning by contract.
Section 16. Construction Timeframe. Construction of the Project shall commence
within thirty-six (36) months of the Effective Date, unless otherwise extended as provided in
Section 7 above, and six (6) months from the date of the issuance of the building permit for the
Project. Construction shall be as defined in Section 3 above. Construction of the Fire Station must
be completed within thirty-six (36) months from the issuance of the building permit for the Fire
Station. In the event Southside is delayed as a direct result of litigation against or involving (but
in no event initiated by) Southside, the deadlines specified in this Section 16 shall be extended by
the length of such delay.
Section 17. Consistency with Comprehensive Plan. The City finds that the
construction of the Parcels in conformity with the Approvals is consistent with the Comprehensive
Plan. As of the Effective Date, Southside is conducting an extensive analysis of the Public
Facilities available to serve the Project. In the event that Southside is required to provide additional
Public Facilities to accommodate the Project, Southside will provide such Public Facilities
consistent with the timing requirements of Section 163.3180, Florida Statutes (2016). Southside
shall be bound by City impact fees and assessments in existence as of the Effective Date of this
Agreement.
Section 18. Consistency with Federal, State, Miami -Dade County and City of
Miami Laws and Regulations. The City has undertaken review of this Agreement for compliance
with the laws, ordinances, regulations and policies of the City of Miami, and has determined that
construction of the Project will be consistent with the State Constitution and Statutes, the Florida
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MIA ACTIVE 4685362.6
Building Code, and the American with Disabilities Act ("ADA"). Southside agrees that it shall
develop the Project in a manner and shall endeavor to obtain Approvals that are consistent with
the purpose, intent, and spirit of the Miami 21 Zoning Code.
Section 19. Necessity of Complying with Local Regulations Relative to Permits.
Southside and the City agree that the failure of this Agreement to address a particular permit,
condition, fee, term, license, or restriction in effect on the Effective Date shall not relieve Southside
of the necessity to comply with the regulation governing said permitting requirements, conditions,
fees, terms, licenses, or restrictions as long as compliance with said regulation and requirements
do not require Southside to construct the Parcels in a manner inconsistent with the design and
purpose of the Project and the laws of the City of Miami in existence as of the Effective Date.
Section 20. Reservation of Construction Rights.
(a) Notwithstanding any language herein to the contrary, this Agreement
shall not be interpreted to provide for any vested development rights in
favor of Southside. For the term of this Agreement, the City hereby
agrees that it shall permit the construction of the Project in accordance
with the Approvals and this Agreement.
(b) 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
Southside or its successors or assigns to continue construction of the
Project in conformity with the Approvals and all prior and subsequent
permits or orders granted by the City concerning this Project.
Notwithstanding the aforementioned, if Southside has not commenced
construction during this initial term or an extended term, as provided in
Section 7 and Section 16, the City may seek alternative development
plans, for the City Property, which do not include Southside or the
Project, whereupon the portion of the Southside Property that is owned
by the City will be reconveyed by the City to Southside and the portion
of the City Property that is owned by Southside shall be reconveyed by
Southside to the City. Furthermore, Southside or its successors or
assigns shall have no rights, including, but not limited to, any claims of
vested rights or equitable estoppel, to continue the Project whatsoever if
this Agreement is terminated pursuant to Section 21, below. In the event
the City terminates this Agreement pursuant to Section 21 below and
construction of the Project has not yet commenced under Section 16
above, the portion of the Southside Property that is owned by the City
will be reconveyed by the City to Southside and the portion of the City
Property that is owned by Southside shall be reconveyed by Southside to
the City.
Section 21. Bi-Annual Review.
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MIA ACTIVE 4685362.6
(a) Southside shall provide the City on a bi-annual basis a status of the
Project in order for the City to conduct an annual review of the
Development. Bi-annual, as the term is used herein, shall refer to twice
in a single year. This requirement shall commence three (3) months after
the Effective Date.
(b) During its review, the City may ask for additional information not
provided by Southside. Any additional information required of Southside
during a review shall be limited to that which is reasonably necessary to
determine the extent to which Southside is proceeding in good faith to
comply with the terms of this Agreement. Notwithstanding any language
in this Agreement to the contrary, the City shall also be entitled to review
at any time, within ten (10) days' written notice, and at Southside's main
accounting office or other mutually acceptable location, any and all
financial information which is reasonably necessary to confirm
information or resolve issues that may subject to Audit, including but not
limited to, profit and loss statements, construction updates, balance
sheets, check registers, and other financial information.
(c) If the City finds on the basis of competent substantial evidence that
Southside has not proceeded in good faith to comply with the terms of
this Agreement, the City may terminate or amend this Agreement after
providing thirty (30) days written notice to Southside and after a public
hearing before the City Commission.
Section 22. Collective Ownership Structure. Southside's right to convert and submit
the overall Project or portions thereof, including the Fire Station, to a condominium form of
ownership or another collective ownership structure (a "Collective Ownership Structure") at any
time is expressly reserved under this Agreement. The City hereby expressly agrees and grants its'
consent, subject to the City's review and approval of the applicable documents, to permit the
conversion and submission of the Project or portions thereof, including the Fire Station, to a
Collective Ownership Structure, whether before or after the Closing. The declaration and/or
instruments governing any Collective Ownership Structure that includes the Fire Station shall
contain appropriate disclosures regarding the location of the Fire Station in the Project and
intended operations therefrom consistent with this Agreement. The Fire Station shall not be
subject to any assessments by the condominium association.
Section 23. 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
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MIA ACTIVE 4685362.6
To the City:
deemed to be performed timely when taken on the succeeding day
thereafter which shall not be a Saturday, Sunday, or legal holiday.
City Manager
City of Miami
3500 Pan American Drive
Miami, FL 33133
With copies to:
To Southside:
City Attorney
Miami Riverside Center
444 S.W. 2nd Avenue
9th Floor
Miami, FL 33130
Director — Department of Real Estate and Asset Management
Miami Riverside Center
444 S.W. 2nd Avenue
3rd Floor
Miami, FL 33130
Southside Place, LLC
Att: Mr. Alain Lantigua
4143 SW 74th Court
Suite B
Miami, Florida 33155
With a copy to:
Gunster, Yoakley & Stewart, PA
600 Brickell Avenue
Brickell World Plaza, Suite 3500
Miami, Florida 33131
ATT: Mario Garcia -Serra, Esq.
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 24. Good Faith; Further Assurances. The Parties to this Agreement have
negotiated in good faith. It is the intent and agreement of the Parties that they shall cooperate with
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MIA ACTIVE 4685362.6
each other in good faith to effectuate the purposes and intent of and to satisfy their obligations
under this Agreement in order to secure to themselves the mutual benefits created under this
Agreement. The Parties shall execute such further documents as may be reasonably necessary to
effectuate the provisions of this Agreement provided that the foregoing shall in no way be deemed
to inhibit, restrict, or require the exercise of the City's police power or actions of the City when
acting in a quasi-judicial capacity.
Section 25. Exclusive Venue, Choice of Law, Specific Performance. It is mutually
understood and agreed by the Parties hereto, that this Agreement shall be governed by the laws of
the State of Florida, and any applicable federal law, both as to interpretation and performance, and
that any action at law, suit in equity, or judicial proceedings for the enforcement of this Agreement
or any provision hereof shall be instituted only in the courts of the State of Florida or federal courts
and venue for any such actions shall lie exclusively in a court of competent jurisdiction in Miami -
Dade County. In addition to any other legal rights, the City and Southside 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.
Each party shall bear its own attorneys' fees in civil actions between them arising out of this
Agreement. The Parties irrevocably waive any rights to a jury trial.
Section 26. Voluntary Compliance. Southside and the City agree that in the event all
or any part of this Agreement is struck down by judicial proceeding or preempted by legislative
action, Southside and the City shall continue to honor the terms and conditions of this Agreement
to the extent allowed by law.
Section 27. 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 and the same is
recorded in the Public Records of Miami -Dade County, Florida. This Agreement cannot be
changed or terminated orally.
Section 28. Compliance with Applicable Law. Subject to the terms and conditions of
this Agreement, throughout the Term of this Agreement, Southside and the City shall comply with
all applicable federal, state, and local laws, rules, regulations, codes, ordinances, resolutions,
administrative orders, permits, policies and procedures, and orders that govern or relate to the
respective Parties' obligations and performance under this Agreement, all as they may be amended
from time to time.
Section 29. Representations; Representatives. Each party represents to the other that
this Agreement has been duly authorized, delivered, and executed by such party and constitutes
the legal, valid, and binding obligation of such party, enforceable in accordance with its terms.
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Section 30. No Exclusive Remedies. No remedy or election given by any provision in
this Agreement shall be deemed exclusive unless expressly so indicated. Wherever possible, the
remedies granted hereunder upon a default of the other party shall be cumulative and in addition
to all other remedies at law or equity arising from such event of default, except where otherwise
expressly provided.
Section 31. 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 32. Force Majeure. If any Party to this Agreement shall be delayed in the
performance of any obligation herein as a result of a Force Majeure, then the performance of such
obligation shall be extended by the length of such delay. A "Force Majeure" shall mean an event
beyond the reasonable control of either the City or Southside, which prevents either the City or
Southside from complying with any of its obligations under this Agreement, including but not
limited to: act of God (such as, but not limited to, fires, explosions, earthquakes, and hurricanes);
war, hostilities, acts of threat or terrorism (whether war be declared or not); riots, strikes, lock outs
or disorder. The Party prevented from carrying out its obligations hereunder (the "Affected
Party") shall give notice to the other Party of an Event of Force Majeure upon it being foreseen
by, or becoming known to, the Affected Party. In response to and during any delay caused by a
Force Majeure, the Parties shall at all times act diligently and in good faith to bring about the
termination or removal of the Force Majeure as promptly as reasonably possible and any Party
seeking an excuse of performance due to such Force Majeure shall work diligently and in good
faith to reduce or eliminate any damage, cost or delay caused by such Force Majeure. Neither the
City nor the Southside shall be considered in breach of this Agreement to the extent that
performance of their respective obligations is prevented by an Event of Force Majeure that arises
after the Effective Date of this Agreement.
Section 33. Events of Default.
(a) Southside shall be in default under this Agreement if Southside 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 City specifying the nature of such breach;
provided, however, that if such breach cannot reasonably be cured within
thirty (30) days, then Southside shall not be in default if it commences to
cure such breach within said thirty (30) day period and diligently
prosecutes such cure to completion.
(b) The City shall be in default under this Agreement if the City fails to
perform or breaches any term, covenant, or condition of this Agreement
and such failure is not cured within thirty (30) days after receipt of
written notice from Southside specifying the nature of such breach;
provided, however, that if such breach cannot reasonably be cured within
thirty (30) days, the City shall not be in default if it commences to cure
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MIA ACTIVE 4685362.6
such breach within said thirty (30) day period and diligently prosecutes
such cure to completion.
(c) It shall not be a default under this Agreement if either party is declared
bankrupt by a court of competent jurisdiction. All rights and obligations
in this Agreement shall survive such bankruptcy of either party. The
Parties hereby' forfeit any right to terminate this Agreement upon the
bankruptcy of the other party. This section does not absolve Southside
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 Southside' s rights
and obligations hereunder shall not be deemed a breach by Southside that
has assigned such rights and obligations.
Section 34. 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, Southside and the City agree that any
Party may seek specific performance of this Agreement, and that seeking
specific performance shall not waive any right of such Party to also seek
monetary damages, injunctive relief, or any other relief other than
termination of this Agreement. Each Party shall bear its own attorney' s
fees in any such action.
Section 35. Partial Invalidity or Unenforceability. If any term or provision of this
Agreement or the application thereof to any person or circumstance shall, to any extent, hereafter
be determined to be invalid or unenforceable, the remainder of this Agreement or the application
of such term or provision to persons or circumstances other than those as to which it is held invalid
or unenforceable shall not be affected thereby and shall continue in full force and effect.
Section 36. Severability. In the event that any provision of this Agreement, or the
application thereof, becomes or is declared by a court of competent jurisdiction to be illegal, void,
invalid or unenforceable, the remainder of this Agreement will continue in full force and effect
and the application of such provisions to other persons or circumstances will be interpreted so as
reasonably to effect the intent of the Parties. The Parties further agree to replace such illegal, void,
invalid or unenforceable provision of this Agreement with a legal, valid and enforceable provision
that will achieve, to the extent possible, the economic, business and other purposes of such illegal,
void, invalid or unenforceable provision.
Section 37. Assignment and Transfer. This Agreement shall be binding on Southside
and its heirs, successors, and assigns, including the successor to or assignee of Southside' s interest
in the Air Rights Parcel. Southside, at its sole discretion, may assign, in whole or in part, this
Agreement or any of its rights and obligations hereunder, or may extend the benefits of this
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MIA ACTIVE 4685362.6
Agreement, to any subsequent owner of the Air Rights Parcel only after obtaining the City' s prior
written consent and approval, which shall not be unreasonably withheld; provided, however that
such consent and approval of the City shall not be so required in the event that certificates of
occupancy have been issued for the mixed use tower, Parking Garage, and Fire Station comprising
the Project; however, in such an event, the Participation Payment specified in Section 38 below
shall continue to be required prior to the first assignment, transfer, or conveyance to a third party.
Any such assignee shall assume all applicable rights and obligations under this Agreement. Any
reference to Southside in this Agreement also applies to any heir, successor, or assignee of
Southside.
Section 38. Profit Participation Payments. Southside shall provide additional Public
Benefits by making the Profit Participation Payments which shall be payable pursuant to Exhibit
H.
Section 39. Obligations Surviving. Notwithstanding any language in this Agreement
to the contrary, 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 one (1)
year term following the earlier of the effective date of such termination or the expiration of the
Term: (i) the exclusive venue and choice of law provisions contained herein; (ii) rights of any party
arising during or attributable to the period prior to expiration or earlier termination of this
Agreement; and (iii) any other term or provision herein which expressly indicates either that it
survives the termination or expiration hereof or is or may be applicable or effective beyond the
expiration or permitted early termination hereof.
Section 40. Lack of Agency Relationship. Nothing contained herein shall be construed
as establishing an agency relationship between the City and Southside and neither Southside 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 Southside or its subsidiaries, divisions, or affiliates.
Section 41. Cooperation; Expedited Permitting; and Time is of the Essence.
(a) The Parties agree to cooperate with each other to the full extent
practicable pursuant to the terms and conditions of this Agreement. The
Parties agree that time is of the essence in all aspects of their respective
and mutual responsibilities pursuant to this Agreement. The City shall
use its best efforts to expedite the permitting and approval process in an
effort to assist Southside in achieving its construction milestones. The
City will accommodate requests from Southside' s general contractor and
subcontractors for review of phased or multiple permitting packages,
such as those for excavation, site work and foundations, building shell,
core, and interiors. In addition, the City Manager will designate an
individual who will have a primary (though not exclusive) duty to serve
as the City' s point of contact and liaison with Southside in order to
facilitate expediting the processing and issuance of all permit and license
applications and approvals across all of the various departments and
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MIA ACTIVE 4685362.6
offices of the City which have the authority or right to review and
approve all applications for such permits and licenses.
(b) Notwithstanding the foregoing, the City shall not be obligated to issue
any permit to the extent Southside does not comply with the applicable
requirements of the Approvals, the Comprehensive Plan, this Agreement,
applicable building codes, and any other statute, ordinance, rule, or
regulation.
Section 42. Enforcement.
(a) In the event that Southside, its successors, or assigns fail to act in
accordance with the terms of the Approvals or this Agreement, the City
shall have the right to enforce the provisions of this Agreement. In the
event that the City, its successors, or assigns fail to act in accordance with
the terms of Approvals or this Agreement, Southside shall have the right
to enforce the provisions of this Agreement.
(b) Enforcement of this Agreement by any Party shall be by action against
any Parties or person violating, or attempting to violate, any covenants
set forth in this Agreement. In the event of a suit for the enforcement of
this Agreement, each Party shall be responsible for their own attorney' s
fees.
Section 43. Amendment or Termination by Mutual Consent. This Agreement may
not be amended or terminated during its term except by mutual written agreement of Southside
and the City and subject to City Commission approval of such termination or release. Any
amendment or termination shall be recorded in the public records of the County at Southside's sole
cost.
Section 44. Third Party Defense. Southside and City shall defend any claims, suits, or
demands brought against Southside and the City by third Parties challenging this Agreement or
the Project, with each party bearing its own attorney' s fees and costs; including, without limitation,
(i) a petition for writ of certiorari, (ii) an action for declaratory judgment, or (iii) any claims for
loss, damage, liability, or expense (including reasonable attorneys' fees). In the event that this
Agreement is challenged as being in violation of the City of Miami Charter provisions regarding
the conveyance of City property, Southside shall exclusively bear the fees and costs of defense.
Southside shall promptly give the City written notice of any such action, including those that are
pending or threatened, and all responses, filings, and pleadings with respect thereto.
Section 45. No Conflict of Interest. Southside agrees to comply with Section 2-612 of
the City Code as of the Effective Date, with respect to conflicts of interest.
Section 46. No Third -Party Beneficiary. No persons or entities other than Southside
and the City, their heirs, permitted successors, and assigns, shall have any rights whatsoever under
this Agreement.
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Section 47. 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. In addition, any counterpart signature page may be
executed by any Party wheresoever such Party is located, and may be delivered by electronic
transmission of PDF, and any such electronically transmitted signature pages sent by PDF may be
attached to one or more counterparts of this agreement, and such signature(s) sent by PDF shall
have the same force and effect, and be as binding as if original signatures had been executed and
delivered in person.
Section 48. Public Records. The Parties shall comply with the Florida Public Records
Act, Chapter 119, Florida Statutes, as amended, as further provided in Exhibit H. Southside shall
seek the City' s input and obtain the City' s prior written approval for any statements made to the
public or press or any press releases regarding the Project.
Section 49. Abutting Property Owners. The City and Southside have a mutual interest
in ensuring that construction of the Project proceeds in a manner which is respectful of and
sensitive to owners of property abutting the Project ("Abutting Owners"). In recognition of this
concern, during construction of the Project, Southside agrees to ensure that Abutting Owners are
compensated for any actual damages which directly result from accidental loss of utility service
caused by Southside, its contractors, or subcontractors at Southside' s sole cost and expense.
Section 50. Status. Upon request from time to time by Southside, or its successor,
assigns, or any mortgagee of Southside, its successor, or assign, the City shall deliver to such
requesting party a letter (in recordable form, if requested) stating whether the obligations of
Southside or its successor or assign under this Agreement are current and in good standing or have
been satisfied. In the event Southside or its successor or assign is not current in its obligations or
such obligations are not satisfied, said letter shall state the particular manner in which such
person' s obligations under this Agreement are not current and in good standing or have not yet
been satisfied.
Section 51. Estoppel. Within ninety (90) days of receipt of written request from a
Southside party, but in no event more often than three (3) times per year, the City Manager or his
designee, shall execute an estoppel certificate or similar document on behalf of the City, in form
and substance reasonably acceptable to the City Attorney, affirming Southside's compliance with
the conditions set forth in this Agreement.
Section 52. Accord and Satisfaction. No payment by Southside or receipt by the City
of a lesser amount than a Profit Participation Payment or other amount due as specified herein
shall be deemed in satisfaction of any such amounts owed; nor shall any endorsement or statement
on any check remitting partial payment or any letter accompanying any partial payment be deemed
an accord and satisfaction of Southside' s obligations. The City shall accept such check or payment
without prejudice to the City's right to recover the balance of any Profit Participation Payment or
pursue any other remedy provided herein or by law.
Section 53. Entire Agreement. This Agreement and the exhibits attached hereto and
forming a part thereof as if fully set forth herein constitute all of the covenants, promises,
agreements, conditions and understandings between the City and Southside concerning the
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Southside Property and there are no covenants, promises, conditions or understandings, either oral
or written, between them other than those set forth herein. All representations, either oral or
written, made between the Parties shall be deemed to be merged into this Agreement. No course
of prior dealings between the Parties or their officers, employees, agents or affiliates shall be
relevant or admissible to supplement, explain or vary any of the terms of this Agreement.
Acceptance of, or acquiescence in, a course of performance rendered under this Agreement or any
prior agreement between the Parties or their affiliates shall not be relevant or admissible to
determine the meaning of any of the terms of this Agreement. Except as herein otherwise provided,
no subsequent alteration, change or addition to this Agreement shall be binding upon the City or
Southside unless reduced to writing and signed by the Parties. Any amendments to this Agreement
must be approved with the same formalities as were used in its execution; providing, however, that
the City Manager may administratively execute non -material (i.e. non -substantial) amendments of
this Agreement in the exercise of his professional discretion. This Agreement has been negotiated
"at arm's length" by and between the City and Southside, each having the opportunity to be
represented by legal counsel of its choice and to negotiate the form and substance of this
Agreement, and therefore, in construing the provisions of this Agreement neither party will be
deemed disproportionately responsible for draftsmanship.
Section 54. Independent Parties. It is understood and agreed by the Parties hereto that
this Agreement does not create a fiduciary or other relationship between the Parties. The City and
Southside are and shall be independent contracting parties and nothing in this Agreement is
intended to make either Party a general or special agent, joint venture, partner or employee of the
other for any purpose.
Section 55. Captions and Section Numbers. The captions, section numbers, and
article numbers in this Agreement are inserted only for convenience and in no way defines, limit,
construe or describe the scope or intent of such sections or articles of this Agreement nor in any
way affect this Agreement.
Section 56. Consents. Wherever in this Agreement, the consent of one party is required
for an act of the other party, unless otherwise specified, such consent shall not be unreasonably
withheld, delayed or conditioned.
Section 57. Construction of the Agreement. The parties agree that they have been
represented by counsel during, and each has been active in, the negotiation, preparation and
execution of this Agreement, and therefore, waive the application of any law or rule of construction
providing that ambiguities in an agreement or other document will be construed against the party
drafting such agreement or document.
Section 58. City Approvals. To the extent allowed by the City Charter and the City
Code, approvals required by this Agreement may be made administratively by the City Manager
or if authorized by a delegation from the Manager, the Director of the City of Miami Department
of Real Estate Asset Management as his authorized delegate. This Agreement requires the approval
of the City Commission for it to be legally effective and binding. The failure of such approval shall
render this Agreement null and void without further action of the Parties.
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[The remainder of this page intentionally left blank]
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NOW WHEREOF, the City and Southside have caused this Agreement to be duly
executed.
IN WITNESS WHEREOF, the Parties have executed this Agreement.
ATTEST: CITY OF NHANH, a Florida municipal
(SEAL: Todd Hannon, City Clerk corporation
By:
Emilio T. Gonzalez
City Manager
Dated:
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
The foregoing instrument was acknowledged before me this day of , 20
by Daniel J. Alfonso, as the CITY OF NHANH, a Florida municipal corporation who appeared
before me and is personally known to me, or has produced as
identification, and did take an oath.
My Commission Expires: NOTARY:
Print Name:
Notary Public, State of Florida at Large
(Notary Seal)
APPROVED AS TO LEGAL FORM APPROVED AS TO INSURANCE
AND CORRECTNESS: REQUIREMENT
Victoria Mendez
City Attorney
Anne Marie Sharpe
Risk Management Director
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WITNESSES:
Print Name:
SOUTHSIDE PLACE, LLC,
a Florida limited liability company,
By:
Name:
This Title:
Print Name: Dated:
STATE OF FLORIDA
)
)
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me this day of
20 by and , as the and
respectively, of SOUTHSIDE PLACE, LLC, a Florida limited liability
company, who appeared before me and is personally known to me, or has produced as
identification, and did take an oath.
My Commission Expires: NOTARY:
Print Name:
Notary Public, State of Florida at Large
(Notary Seal)
27
MIA ACTIVE 4685362.6
EXHIBIT A
Public Benefits
City Property: Conveyance of Southside Parcel to City
$4,477,500.00
New Fire Station: Construction of new Fire Station ("Fire Station Improvements")
$8,000,000.00
Cash Contribution: Payable upon issuance of a Temporary Certificate of Occupancy
for the Fire Station (inclusive of the Advanced Participation Payment)
$2,200,000.00
Public Parking: Conveyance of approximately fifty (50) parking spaces to the City's
Department of Off Street Parking
$1,500,000.00
Public Streetscape: construction of unified streetscape, landscaping, etc. along SW
2" d Ave and portions of SW 12th Street. The Public Streetscape shall be acceptable to
the City of Miami Administration.
$200,000.00
Profit Participation Payment: Paid annually pursuant to Exhibit H
5% of Available
Cash
TOTAL PUBLIC BENEFITS
$16,377,500 PLUS
28
MIA ACTIVE 4685362.6
EXHIBIT B
Air Rights Parcels
"7://///77
Air Rights
Parcel
relf/Lif/l/A/A
Fir /
Old Fire Station
(City Owned Land)
Fire Station Space Dimensions
Height
39 feet approximately
Length
140 feet approximately
Width
150 feet approximately
New Fire Station
(Southside Land to be Conveyed to City)
29
MIA ACTIVE 4685362.6
EXHIBIT C
City Property
30
MIA ACTIVE 4685362.6
EXHIBIT D
Appraisal by Joseph J. Blake & Associates, Inc.
[to be inserted prior to execution]
31
MIA ACTIVE 4685362.6
EXHIBIT E
Appraisal by Armada Appraisal & Consulting Company
[to be inserted prior to execution]
32
MIA ACTIVE 4685362.6
EXHIBIT F
Southside Property
Lot 13, LESS the West 10 feet thereof; together with the South 75 feet of Lot
13-1/2, Block 85 South, MIAMI HEIGHTS, according to the map or plat thereof
as recorded in Plat Book 5, at Page 29, of the Public Records of Miami -Dade
County, Florida.
33
MIA ACTIVE 4685362.6
EXHIBIT G
Site Plan/Conceptual Development Plans
34
MIA ACTIVE 4685362.6
EXHIBIT H
Profit Participation Payments
1. Definitions. The initially capitalized terms used in this Exhibit H that are not otherwise
defined shall have the following meanings:
a. "Available Cash" means, for the applicable or pertinent period, cash receipts
derived by Southside from Gross Revenues (without deduction for depreciation or
for other noncash expenses or items), after deduction for (a) amounts used or
necessary to pay Operating Expenses, (b) Reserves, (c) repayment in full of interest
and principal on the senior/primary secured loan made to Southside (excluding any
and all lower priority or secondary loans such as unsecured, subordinated, or
mezzanine loans), and (d) Southside Fees.
b. "Capital Contributions" means all contributions (excluding land) to the capital of
Southside made by the members, partners or shareholders thereof. For the
avoidance of doubt, no Capital Contribution credit shall be received in connection
with the City' s conveyance to Southside of the air rights necessary to create the Air
Rights Parcel, or Southside's conveyance of the Southside Land to the City.
c. "Southside Fees" means the fees that Southside shall be permitted to pay to any
parties, including, without limitation, the members, partners or shareholders of
Southside (or affiliates thereof') or designees. The Southside Fees shall be excluded
from Gross Revenues for purposes of the Profit Participation Payments. The fees
set forth on Schedule A attached hereto shall be deemed to be approved by the City
as Southside Fees.
d. "Distributions" means all cash distributions made by Southside to the members,
partners or shareholders thereof pursuant to Paragraph 2 below.
e. "Final Asset Disposition Event" means the date Southside has (as determined in
its sole discretion) disposed of all remaining non -cash assets, or all membership
interests, of Southside and has made Profit Participation Payments and distributions
of all or substantially all remaining Available Cash allocable to Southside and the
City, other than the Reserves, and any other amounts required for liability reserves
in connection with Southside's dissolution, if any, to the extent they exceed the
Reserves.
f. "GAAP" means generally accepted accounting principles, consistently applied, as
recognized by the accounting industry and standards within the United States.
g.
"Gross Revenues" means, for the applicable period, all cash and the fair market
value of any property received from all sources (including cash on hand at the
beginning of such period to the extent not held in Reserves, proceeds from a sale
35
MIA ACTIVE 4685362.6
of assets and any funds released during such period from Reserves previously
established) by Southside from the Project during such period.
h. "Operating Expenses" means for the applicable or pertinent period, all cash
expenditures or payments to make cash expenditures or payments made by
Southside (or any other of Southside' s companies) in connection with the Project
during such period directly or indirectly in connection with Southside' s business or
operations (or such other of Southside's companies, business or operations) in
connection with the Project, including expenditures incurred for insurance, taxes,
and other expenditures paid through a third -party management company for the
operation of the Project, including accounting or bookkeeping, printing, travel,
telephone, and postage. For the avoidance of doubt, Operating Expenses do not
include capital expenditures.
i. "Profit Participation Payments" shall mean the payments made to the City under
Paragraph 2 below.
j. "Profit Participation Statement" means the written notice to be delivered by
Southside to the City following the payment of a Profit Participation Payment and
following the occurrence of the Final Asset Disposition Event pursuant to
Paragraph 3 below.
k. "Reserves" means funds set aside or amounts allocated during such period to
reserves which shall be maintained for working capital and to pay taxes, insurance,
debt service, liabilities or other costs or expenses incident to Southside' s operations
and business (or such other of Southside' s companies business or operations) in
connection with the Project, including its dissolution and winding up, as determined
by Southside in its sole discretion from time to time. For the avoidance of any
doubt, Southside may continue to maintain Reserves following the Final Asset
Disposition Date, subject to Paragraph 3 (c) below.
2. Profit Participation Payments. During the period that the Profit Participation Payments
are payable under this Agreement, Southside shall pay out Available Cash as Profit
Participation Payments and Distributions in accordance with this Agreement, whenever
practicable, but no less frequently than annually, subject to Southside having Available
Cash. Notwithstanding Southside' s discretion regarding when to make Available Cash
payments and/or distributions, Available Cash when paid and/or distributed, must be done
so as follows: (i) to the City as Profit Participation Payments and (ii) to Southside as
Distributions, in the following amounts and order:
a. First, $800,000.00 to the City at the time of issuance of a final certificate of
occupancy for the Fire Station (the "Advance Profit Participation Payment");
b. Then, 100% to Southside until such time as the balance of Southside's unreturned
Capital Contributions is reduced to zero;
36
MIA ACTIVE 4685362.6
c. Thereafter, (i) ninety five percent (95%) to Southside and (ii) five percent (5%) to
the City with a credit of $800,000 being applied for the Advance Profit
Participation Payment).
Though Southside retains sole discretion on the selection of a development program for
the Project, at all times Southside will use best efforts to realize the greatest possible
profitability for the Project.
3. Profit Participation upon Final Asset Disposition Event.
a. Following the payment of a Profit Participation Payment and following the
occurrence of the Final Asset Disposition Event, Southside shall deliver to the City
the Profit Participation Statement (a) setting forth the calculation of the payments
made to the City under Paragraph 2 and/or the final payments due under
Paragraph 2 as of the date of the Final Asset Disposition Event, as applicable. All
calculations for purposes of determining whether any final Profit Participation
Payments or Distributions shall be due hereunder shall be determined in accordance
with the tenets of good faith in Southside's reasonable discretion, subject to
subsection (b) below and GAAP. All Profit Participation Payments made to the
City under this Agreement shall be paid to the City at the address specified herein
for notice to the City.
b. The City shall have thirty (30) days after receipt to review the Profit Participation
Statement and Southside shall provide the City with access to Southside' s books
and records and accounting personnel at the principal office of Southside located at
, as reasonably required to review such computation. In the
event that the City does not agree with the determination of the amount of unpaid
or overpaid (as the case may be) Profit Participation Payments as set forth in the
Profit Participation Statement, it shall advise Southside in writing within a sixty
(60) day period inclusive of the preceding thirty (30) day period. Such notice shall
state that it disputes the determination of the unpaid Profit Participation Payments
and detail the particular items in the Profit Participation Statement with which it
disagrees. In such event, the Parties shall agree to engage a national certified public
accounting firm acceptable to both Parties (the "CPA"), to review and confirm the
determination of the aggregate amount of Profit Participation Payments due
hereunder compared with the amount and confirm the determination of Profit
Participation Payments that have been paid to the City to determine the aggregate
amount of unpaid or overpaid Profit Participation Payments. The decision of the
CPA shall be binding upon the Parties (unless fraud or a material misrepresentation
is shown in a civil action in which case it shall not be binding). The determination
of the aggregate amounts of unpaid Profit Participation Payments due and payable
to the City, or any overpayment of any Profit Participation Payments, as determined
by Southside and as detailed in the Profit Participation Statement shall be
conclusive and binding on the Parties; except that if the City gives timely written
notice of any disputes, the aggregate amount of Profit Participation Payments due
and payable to the City, or any overpayment of such amounts, as agreed upon in
37
MIA ACTIVE 4685362.6
writing by Parties or pursuant to the decision rendered by the CPA (as the case may
be) shall be conclusively determinative for all such purposes. Within thirty (30)
Days following such final determination, either (I) Southside shall cause Southside
to pay to the City its remaining Profit Participation Payments, if any, as determined
in accordance with this Section or (II) the City shall return to Southside any
overpayment of Profit Participation Payments it has received in accordance with
this Paragraph 3. Any payment owed to Southside by the City or by the City to
Southside pursuant to this Paragraph 3 (b) that is not paid within such thirty (30)
day period will accrue interest at a rate of 8% per annum or, if lower, the highest
rate permitted by applicable law. If the Parties engage the CPA and the aggregate
amount of unpaid Profit Participation Payments payable to the City, as determined
by the CPA, was understated, or the aggregate amount of any overpayment of Profit
Participation Payments was overstated, in the Profit Participation Statement by
more than ten percent (10%), the cost of the CPA shall be borne solely by
Southside. Otherwise, the cost of the CPA shall be borne solely by the City.
c. In the event that after the Final Asset Disposition Event, Southside has Available
Cash from any amounts previously held in Reserves, such Available Cash shall be
paid in accordance with Paragraph 2.
4. No Participation in Management. Notwithstanding anything in this Exhibit H to the
contrary, in no event shall the City have the right to approve any aspect of Southside' s
operations or management whatsoever, including any sale of all or any portion of the Air
Rights Parcel or other non -cash assets of Southside, the determination of Reserves or
Available Cash or the amount of or date upon which Profit Participation Payments and
Distributions shall be made, all of which shall be in Southside's sole discretion.
Accordingly, the City shall in no event have any liability, responsibility, culpability, or
duty relative to any management decision or any management omission or action.
5. No Assignment. The City shall not, directly or indirectly, by operation of law or otherwise,
transfer, assign, delegate, pledge or encumber in any manner whatsoever, in whole or in
part, the right to receive the Profit Participation Payment under this Agreement, which right
shall be personal to the City under this Agreement, except that the City may choose to
assign its right to receive the Profit Participation Payments to an agency or instrumentality
of the City if it so wishes at the City' s sole option by providing written notice of such
assignment to Southside. For the avoidance of doubt, the City shall not have the right to
assign any rights under this Agreement other than the right to receive Profit Participation
Payments without the prior written consent of Southside.
6. Subordination of Participation Payments to Loan Documents; Covenant Not
Running with the Land. It is expressly acknowledged and agreed that the City' s right to
receive the Profit Participation Payments in accordance with this Agreement is and shall
be deemed to be automatically subordinate to any senior secured loan now or hereafter
encumbering the Air Rights Parcel or made to Southside in connection with the Project and
the underlying loan documents evidencing and securing any such loan, including, without
limitation, the mortgage loan. This subordination shall expressly be limited to only the first
38
MIA ACTIVE 4685362.6
debt, which shall mean the senior/primary secured loan, and shall not include any lower
priority or secondary loans such as unsecured, subordinated, or mezzanine loans. By
execution of this Agreement, the City agrees to execute any and all written
acknowledgements of such subordination in favor of any lender providing any such
senior/primary secured loan to Southside in connection with the Project. It is further
expressly acknowledged and agreed that the City' s right to receive the Profit Participation
Payments and Southside' s obligation hereunder to pay the same (a) shall be the personal
obligation of Southside Place, LLC under this Agreement, (b) shall in no event run or pass
with the Air Rights Parcel, and (c) shall in any event expire upon the payment of the Profit
Participation Payment due to the City, if any, following the Final Asset Disposition Event.
Without limiting generality of the foregoing, and for the avoidance of doubt, the obligations
of Southside Place, LLC under this Agreement to pay the Profit Participation Payment shall
not be binding upon or effective against any successor owner of the Air Rights Parcel, or
any portion thereof (other than Southside Place, LLC), whether title is acquired by deed or
other instrument, foreclosure, deed -in -lieu of foreclosure, trustee sale or otherwise,
including any mortgagee or other person or entity who is Southside at foreclosure or who
acquires title by deed in lieu of foreclosure (it being understood and agreed, in furtherance
of the foregoing, that no mortgagee or other person or entity who acquires title to the Air
Rights Parcel, or any portion thereof, by foreclosure or deed in lieu of foreclosure or
otherwise shall be bound to pay the Profit Participation Payments).
7. Public Records. To the extent expressly allowed by the Florida Public Records Act,
Chapter 119, Florida Statutes, as amended, neither Southside nor any exempt, proprietary
or confidential information provided by Southside for the City' s review pursuant to this
Exhibit H, shall be subject to Section 119.0701, Florida Statutes. Further, to the extent
Profit Participation Statements in the City's possession are requested from the City by
Chapter 119, Florida Statutes, or as otherwise provided by law, the City must give
immediate notice to Southside and opportunity for Southside to redact the Profit
Participation Statements to ensure that public records that are exempt or confidential and
exempt from disclosure are not disclosed except as authorized by law.
8. GAAP. Accounting terms used but not otherwise defined in this Agreement shall have the
meaning given them by GAAP.
39
MIA ACTIVE 4685362.6
Schedule A
List of Approved and Excluded Fees
Development Fees
Construction Management Fees
Asset Management Fees
Property Management Fees
Market Brokerage Fees
4.0% of Total Project Cost (Hard and Soft Costs,
excluding Land Costs).
2.0% of Total Project Hard Costs (which shall be
limited to actual costs and expenses directly
associated with construction management and
supervision of the Project).
2.0% of Agreed Upon Project Value.
3.0% of Effective Gross Income for residential use;
5.0% of Effective Gross Income for office or retail
use.
Customary market fees; limited to brokerage fees for
leasing and sale; must be paid to a third party
Brokerage Company unrelated to Southside.
MIA ACTIVE 4685362.6
40
EXHIBIT I
Insurance Requirements
(SOUTHSIDE OPERATIONS PHASE)
I. Commercial General Liability
A. Limits of Liability
Bodily Injury and Property Damage Liability
Each Occurrence $1,000,000
General Aggregate Limit $2,000,000
Personal and Adv. Injury $1,000,000
Products/Completed Operations $1,000,000
B. Endorsements Required
City of Miami listed as additional insured
Primary Insurance Clause
Contingent & Contractual Liability
Premises and Operations Liability
Explosion, Collapse and Underground Hazard
II. Business Automobile Liability
A. Limits of Liability
Bodily Injury and Property Damage Liability
Combined Single Limit
Owned/Scheduled Autos
Including Hired, Borrowed or Non -Owned Autos
Any One Accident $1,000,000
B. Endorsements Required
City of Miami listed as an additional insured
III. Worker's Compensation
Limits of Liability
Statutory -State of Florida
Waiver of Subrogation
Employer' s Liability
A. Limits of Liability
$1,000,000 for bodily injury caused by an accident, each accident
$1,000,000 for bodily injury caused by disease, each employee
$1,000,000 for bodily injury caused by disease, policy limit
IV. Umbrella Liability
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MIA ACTIVE 4685362.6
Each Occurrence
Policy Aggregate
$1,000,000
$1,000,000
City of Miami listed as an additional insured
Excess Follow Form over all applicable liability policies included herein
V. Property
Commercial Property Insurance covering the buildings, fixtures, equipment, inventory
or contents, improvements, and betterments owned by SOUTHSIDE. The property
policy shall, at a minimum, cover the perils insured under the ISO Special Causes of
Loss Special Form (CP 10 30), or a substitute form providing equivalent coverages,
including debris removal, windstorm, hail and flood, demolition and increased cost of
construction that are caused by Legal requirements regulating the construction or repair
of damaged Facilities, including an ordinance and law endorsement, in an amount of
not less than the replacement cost of the property insured. In addition, the property
policy should include coverage for business interruption including extra expense
coverage written on an actual loss sustained basis, if available, along with sprinkler
leakage and plate glass if applicable.
The amount of insurance shall equal the full estimated replacement cost of the Facilities
owned by SOUTHSIDE_
The City shall be included as an additional insured and loss payee under the commercial
property insurance.
The above policies shall provide the City of Miami with written notice of cancellation or
material change from the insurer in accordance to policy provisions.
Companies authorized to do business in the State of Florida, with the following qualifications,
shall issue all insurance policies required above:
The company must be rated no less than "A-" as to management, and no less than
"Class V" as to Financial Strength, by the latest edition of Best's Insurance Guide,
published by A.M. Best Company, Oldwick, New Jersey, or its equivalent. All policies
and /or certificates of insurance are subject to review and verification by Risk
Management prior to insurance approval.
The City reserves the right to request a certified copy of the insurance policy
including all endorsements. In addition, the City must be provided with all applicable
additional insured endorsements as noted in the insurance exhibit, which must be
attached to each of the corresponding certificates of insurance.
42
MIA ACTIVE 4685362.6
Insurance Requirements
(FIRE STATION NO. 4 CONSTRUCTION PHASE)
I. Commercial General Liability
A. Limits of Liability
Bodily Injury and Property Damage Liability
Each Occurrence $1,000,000
General Aggregate Limit $2,000,000
Personal and Adv. Injury $1,000,000
Products/Completed Operations $1,000,000
B. Endorsements Required
City of Miami listed as additional insured
Primary Insurance Clause
Contingent & Contractual Liability
Premises and Operations Liability
Explosion, Collapse and Underground Hazard
II. Business Automobile Liability
C. Limits of Liability
Bodily Injury and Property Damage Liability
Combined Single Limit
Any Auto
Including Hired, Borrowed or Non -Owned Autos
Any One Accident $1,000,000
D. Endorsements Required
City of Miami listed as an additional insured
III. Worker's Compensation
Limits of Liability
Statutory -State of Florida
Waiver of Subrogation
Employer' s Liability
A. Limits of Liability
$1,000,000 for bodily injury caused by an accident, each accident
$1,000,000 for bodily injury caused by disease, each employee
$1,000,000 for bodily injury caused by disease, policy limit
IV. Umbrella Liability
A. Limits of Liability
Bodily Injury and Property Damage Liability
43
MIA ACTIVE 4685362.6
Each Occurrence $3,000,000
Aggregate $3,000,000
City of Miami and FDOT listed as an additional insured
Coverage is excess over all applicable liability policies contained herein
V. Payment and Performance Bond (Full Limit/Project Value)
City of Miami listed as an Obligee
VI. Owners and Contractors Protective Liability
A. Limits of Liability
Each Occurrence $1,000,000
Aggregate $1,000,000
City of Miami listed as a named insured
VII. Builder's Risk
Causes of Loss: All Risk of Direct Physical Damage or Loss
Valuation: Replacement Cost
Deductibles: 5% Wind, Hail, and Flood, $25,000 AOP
Coverage Extensions included
City of Miami listed as an additional insured and loss payee
The above policies shall provide the City of Miami with written notice of cancellation or material
change from the insurer not less than (30) days prior to any such cancellation or material change,
or in accordance to policy provisions.
Companies authorized to do business in the State of Florida, with the following
qualifications, shall issue all insurance policies required above:
The company must be rated no less than "A-" as to management, and no less than "Class V"
as to Financial Strength, by the latest edition of Best's Insurance Guide, published by A.M.
Best Company, Oldwick, New Jersey, or its equivalent. All policies and /or certificates of
insurance are subject to review and verification by Risk Management prior to insurance
approval.
44
MIA ACTIVE 4685362.6
SUBSTITUTED
This instrument Prepared by and
after Recording Return To:
Daniel M. Madder, Esq.
Gunster, Yoakley & Stewart, PA
600 Brickell Avenue
Brickell World Plaza, Suite 3500
Miami, Florida 33131
DEVELOPMENT AGREEMENT
REGARDING CONSTRUCTION OF THE NEW F1' STATION NO. 4
THIS DEVELOPMENT AGREEMENT is entered this day of , 2017,
and effective as of the day of _ , 2017, by d between SOUTHSIDE PLACE,
LLC, a Florida limited liability company ("Developer"), a the CITY OF MIAMI, FLORIDA, a
municipal corporation and a political subdivision of the ate of Florida ("City") (Developer and
the City together referred to as the "Parties").
RECIT LS:
WHEREAS, the City owns the City P
$13,382,500.00 {based on an average of two
station; and
erty, which is currently valued at approximately
praisals), and currently contains an operating fire
WHEREAS, the Developer o r s the abutting Developer Property, which is currently
valued at approximately $4,477,500. P 1 (based on an average of two appraisals) and currently
contains a multi -family apartment b - ilding; and
WHEREAS, the Devel• ser has offered to consolidate the Developer Property with the
City Property, for no compe ration, in order to create two (2) separate parcels — one of which
would be an air rights pare owned by Developer, and the other which would be a fee parcel
owned by the City; and
WHEREAS, e Developer has offered to construct a new, state of the art, larger and
modern Fire Station or the City on the Developer Property and part of the City Property at a cost
of $8,000,000 at i -veloper's expense; and
WHEAS, the Developer has offered to contribute Five Hundred Thousand Dollars
{$500,000.01 as an addition Public Benefits Contribution; and
EREAS, the Developer has offered to convey the Public Parking Spaces (as defined
below, .e., all the parking spaces on the first parking level of the Parking Garage consisting of
appr' irnately fifty (50) parking spaces valued at $1,500,000) to the City's Department of Off-
Str et Parking.
SUBSTITUTED
WHEREAS, in addition to the new Fire Stations Developer also intends to d. clop a
mixed -use tower with first (1') floor retail and a parking garage; and
WHEREAS, the Developer Property is currently zoned Urban Core Transe (T6-24A-O)
and is designated Restricted Commercial, in the Miami Comprehensive Neighbor ood Plan;
WHEREAS, the City Property is zoned Civic Institution and is designated Major
Institutional, Public Facilities, Transportation and Utilities in the Comprehe sive Plan; and
WHEREAS, in furtherance of Developer's construction of the roject, Developer, at its
sole cost and expense, has agreed to provide certain Public Benefits, in ding: (1) the construction
of the Fire Station on behalf and for the benefit of the City; (2) the , onveyance of the Developer
Property to the City; (3) cash contribution to the City of Fiv Hundred Thousand Dollars
($500,000.00) to be payable upon issuance ofa fmal Certificate . Occupancy for the Fire Station;
(4) the conveyance of the Public Parking Spaces to the City's ' epartment of Off -Street Parking ;
(5) the Profit Participation Payment payable pursuant to Sec on 38 below and Exhibit H, and (6)
other Public Benefits; and
WHEREAS, in furtherance of the Developer' conveyance of the Developer Property to
the City, construction of the new Fire Station and a blic/private Parking Garage, in addition to
the other Public Benefits, the City has agreed to t creation of the Fee Parcel and the Air Rights
Parcel, as defined in Section 3 below; and
WHEREAS, the lack of certainty in e approval of development can result in a waste of
economic and land resources, discourage ound capital improvement planning and financing,
escalate the cost of housing and devel. •ment, and discourage commitment to comprehensive
planning; and
WHEREAS, assurance to a i eveloper that it may proceed in accordance with existing laws
and policies, subject to the condit'. ns ofa development agreement, strengthens the public planning
process, encourages sound cap al improvement planning and financing, assists in assuring there
are adequate capital facilities or the Project, encourages private participation in comprehensive
planning, and reduces the e►onomic costs of development; and
WHEREAS, the City Commission, pursuant to Resolution No. adopted
on , , has authorized the City Manager to execute this Agreement
upon the terms an• conditions as set forth below and to further take all actions required to
effectuate the inte t of this Agreement; and
WHE ' AS, the Developer is authorized to execute this Agreement upon the terms and
conditions sforth below; and
HEREAS, the Developer has agreed to provide the Public Benefits within the Project
and th. City has agreed to the creation of the Parcels, subject to the terms and conditions set forth
in th. Agreement;
NOW THEREFORE, in consideration of the mutual covenants and agreements
ereinafter contained, the Parties mutually agree and bind themselves as set forth herein:
2
SUBSTITUTED
Section 1. Consideration. The Parties hereby agree that the considerate• and
obligations recited and provided for under this Agreement constitute substantial benefit to both
Parties and thus adequate consideration for this Agreement.
Section 2. Rules of Legal Construction.
For all purposes of this Agreement, unless otherwise expressly provide
(a) A deemed term has the meaning assigned to it;
(b) Words in the singular include the plural, and w.rds in the plural include
the singular;
(c) A pronoun in one gender includes and ap a ies to other genders as well;
(d) The terms "hereunder", "herein", "h{ eof', "hereto", and such similar
terms shall refer to the instant Aeement in its entirety and not to
individual sections or articles;
(e) The Parties hereto agree that is Agreement shall not be more strictly
construed against either the r ity or Developer, as all Parties are drafters
of this Agreement; and
(f) The recitals are true ad correct and are incorporated into and made a
part of this Agreeme t. The attached exhibits shall be deemed adopted
and incorporated ' + o this Agreement. This Agreement and the attached
exhibits shall be nterpreted to avoid conflicts; provided, however, that
this Agreeme shall be deemed to control in the event of an express
conflict betw en the exhibits and this Agreement.
Section 3. Definitions Capitalized terms which are not specifically defined herein
shall have the meaning given in ►' iami 21.
"Agre ent" means this Development Agreement between the City and
Dev: oper regarding construction of the Project.
" it Rights Parcel" means the parcel created by the City and owned by the
eveloper, consisting of the Ground Floor Retail, Parking Garage and
Mixed -Use Tower, as further identified in Exhibit B.
"Approvals" means the final development approvals and building permits
required for the construction of the Project. The Approvals shall include,
without limitation: (i) a change of Future Land Use Map and Zoning Map
designation for the City Property from "Major Public Facility" and "CI" to
"Restricted Commercial" and "T6-24A-O"; (ii) approval of any documents
required for the specific purpose of creating the Parcels; (iii) approval of a
site plan for the Project, including the approval of any Waivers which may
3
SUBSTITUTED
be required and (iv) approval of any other documents or resolutio , that
may be required for the construction of the Project.
"City" means the City of Miami, a municipal corporation ana political
subdivision of the State of Florida, and all departments, , gencies, and
Instrurnentalities subject to the jurisdiction thereof.
"City Property" means the parcel of property, co
0141380510420, 0141380510390, 0141380510410,
described on Exhibit C attached hereto, as to whic
the following appraisals: (a) Appraisal dated Apri
Blake & Associates, Inc., containing a valuatio
attached as Exhibit D and (b) Appraisal dated
Appraisal & Consulting Company containi
which is attached as Exhibit E.
fisting of folios #
nd 0141380510400
the City has obtained
0, 2017, from Joseph J.
of $14,800,000, which is
pril 29, 2017, from Armada
a valuation of $11,965,000,
"Closing" means the simultaneous o urrence of the following: (a) the
Developer's conveyance of the De eloper Property to the City; (b) the
consummation by the Parties of e creation of the Parcels; and (c) the
Parties shall execute and deliver 1 of the Closing Documents.
"Collective Ownership Str ture" means the Developer's right to convert
and submit the overall Proj- t or portions thereof, including the Fire Station,
to a condominium for of ownership or another collective ownership
structure.
"Comprehensive
Miami Comprehe
Chapter 163, Fl
163.3177, FI
(2016), and
as of the fective Date.
an" means the comprehensive plan known as the
five Neighborhood Plan, adopted by the City pursuant to
rida Statutes (2016), meeting the requirements of Section
ida Statutes (2016), Section 163.3178, Florida Statutes
ection 163.3221(2), Florida Statutes (2016), which is in effect
"Cons uction" means the building of the various components of the
Proj t, and shall include any clearing or other similar site preparation work
on ' e Parcels.
County" means Miami -Dade County, a political subdivision of the State
of Florida.
"Developer" means the person or entities undertaking the development of
the Project, defined in the preamble to this Agreement as SOUTHSIDE
PLACE, LLC, a Florida limited liability company, its successors and
assigns.
"Developer Conveyance" means the Developer's conveyance of the
Developer Property to the City.
4
SUBSTITUTED
"Developer Property" means the parcel of property, f. io #
0141380510430, described on Exhibit F attached.
"Development" means the carrying out of any building activity the making
of any material change in the use or appearance of any struc 4 re or land, or
the dividing of land and/or air rights into two (2) or more cels and such
other activities described in Section 163.3221(4), Florid. tatutes (2016).
"Effective Date" means , the date the City
Manager executed this Agreement with app .val from the City
Commission.
"Fee Parcel" means the parcel created and o ned by the City, consisting
of the new Fire Station, as further identified
Exhibit B.
"Fire Department" means the City of ami Fire Department.
"Fire Station" means a turn -key, approximately 31,078 square foot, state
of the art fire station, with an addi . nal $100,000 allowance for furniture,
fixtures and equipment (e.g., k' hen equipment, but will exclude fire-
fighting equipment) within the roject, for the exclusive use of the Fire
Department that will be const cted on the Fee Parcel.
"Fire Station Improve ' ents" means the construction of the new Fire
Station No. 4 consisti _ of approximately 31,078 square feet of gross
building area for a Fir ' escue facility as part of the Project to be developed
for the exclusive us- . nd ownership of the City of Miami Fire Department.
"Impact Fees" eans a fee imposed by any local government or agency
based upon th new development's proportionate share of the average cost
of new dev opment including impact fees imposed by Miami -Dade
County, th City of Miami, and the Miami -Dade County Public Schools
System.
"Imp ; et Fee Credit" shall mean the credit applied by the City to satisfy
any and all: (1) Fire Rescue Impact Fees for the Project, as set forth in
Section 13-10 of the City Code of Ordinances; and (2) Impact fees
enerated by the development of the Fire Station Improvements on the Fee
Parcel, as set forth in Sections 13-9 through 13-12 of the City Code of
Ordinances.
"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 applicable ordinances, resolutions, regulations,
comprehensive plans, land development regulations, and rules adopted by a
local, state, or federal government affecting the development of the Project.
5
SUBSTITUTED
"Parcels" mean both the Air Rights Parcel and Fee Parcel, as fu, er
identified in Exhibit B.
"Parking Garage" means the new parking garage, ontaining
approximately 255 parking spaces, to be constructed by the ►eveloper as
part of the Project.
"Profit Participation Payments" is defined in Exhibit
"Project" means the proposed mixed -use devel• *merit consisting of
approximately 21 stories and up to 196 residers :al units containing the
Parking Garage, approximately 5,346 square fe of retail use on the first
(1st) floor located on the Air Rights Parcel and the Fire Station, that
Developer contemplates to construct upon t Fee Parcel.
"Public Benefits" shall be those describ
in Exhibit A.
"Public Facilities" means major cap al Improvements to the benefit of the
public, including, but not limited o, transportation, sanitary sewer, solid
waste, drainage, potable water, - l ueational, parks and recreational, streets,
parking, and health systems a facilities.
"Public Parking Spaces" eans all the parking spaces on the first parking
level of the Parking Gar. _e consisting of approximately fifty (50) parking
spaces to be conveyed o the City's Department of Off -Street Parking.
Section 4. Purpose. The p , lose of this Agreement is for the City to authorize
Developer to develop the Project purs t to the site plan dated and prepared by
Revuelta Architecture International a ' d attached hereto as Exhibit G.
Section 5. Intent. D- eloper and the City intend for this Agreement to be construed
and implemented so as to effec ate the Development of the Parcels pursuant to the site plan, this
Agreement, the Comprehensi e Plan and the Florida Local Government Development Agreement
Act, Section 163.3220 - 1 • .3243, Florida Statutes (2016). Specifically, the Parties, based on
substantial benefits to e , intend for the City to gain ownership of the Developer Property,
receive a new state -of- . e-art Fire Station and receive other Public Benefits as further described
herein. In exchange, e City will assist in effectuating the Approvals as defined herein, allowing
the Developer to co struct the Project.
Section ±. Applicability. This Agreement and any rights and obligations contained
herein applie only to the Project.
S tion 7. Term of Agreement, Effective Date, and Binding Effect. This
Agree , nt shall have a term of five (5) years with the right of Developer to request an extension
of the erm for an additional five (5) years by providing written notice to the City Manager prior
to t e expiration of the initial term, which shall be granted in the City Manager's reasonable
di:cretion. Thereafter, the City Manager may extend the term at the City Manager's sole discretion,
6
SUBSTITUTED
but in no event shall such extension exceed thirty (30) years from the Effective Date, u ess such
extension has been approved subject to a public hearing, pursuant to Section 163.32 5, Florida
Statutes (2010). This Agreement shall become effective on the Effective Date and s . 1 constitute
a covenant running with the Land that shall be binding upon, and inure to, the benefofthe Parties,
their successors, assigns, heirs, legal representatives, and personal representativ. s. Additionally,
this Agreement shall be recorded in the public records of Miami -Dade County . nd filed with the
City Clerk. If Developer has not commenced construction during the itial term of this
Agreement, as may be extended hereunder, the City may seek alternative • evelopment plans for
the City Property, which do not include Developer or the Project.
Section 8. Filing of Applications for Approvals. The De loper hereby agrees to file
the necessary applications for the Approvals, and the City will assi with such Approvals where
possible and, as applicable, execute or otherwise join into such app cations, within thirty (30) days
of the execution of this Agreement. The Parties agree that any me 4 ifications required to the Project
and/or the Approvals required in order to permit the develop • nt of the Project will be reviewed
pursuant to the land development regulations in effect at tha ime.
Section 9. Fire Station Construction. T. - City and Developer agree that the
Developer will construct the Fire Station as part of the roject and deliver said Fire Station to the
City upon the issuance of a final Certificate of OccuI :ncy. The City shall retain ownership ofthe
Fire Station at all times. Subject to the foregoing, e Parties agree that the Fire Station will be
completed in substantial compliance with all oft following:
(a) Fire Station Develo
substantial confor
as Exhibit G, or
development p
review and a
ent Plan. The Fire Station shall be constructed in
ance with the conceptual development plans attached
s otherwise mutually agreed to by the Parties. The final
ns for the Fire Station shall be subject to the City's prior
royal.
(b) Pro nosed ' lan Chan es to the Fire Station Develo s ment Plan. Any
materia changes, modifications, amendments or substitutions to: (a)
incre..e the gross floor area of the Fire Station beyond 31,078 sq. ft.; or
, or •) which substantially modify the development plans for the Fire
S :tion, provided in Exhibit G, shall be accomplished via a change order
proved in writing by the City Manager and the Developer (collectively,
the "Proposed Plan Change"). Design changes required for compliance
with the Approvals and Florida Building Code standards shall not
constitute Proposed Plan Changes. The Parties shall review and approve
any and all Proposed Plan Change(s) to determine the effect of the
Proposed Plan Change upon the Fire Station, including the construction
budget and construction schedule. The City shall be solely responsible
for payment to the Developer of any increases to the costs of construction
for the Fire Station that result from any Proposed Plan Changes expressly
requested by the City after the design development plans have been
reviewed and approved by the Parties. The amount due by the City in
connection with any Proposed Plan Changes shall not exceed the total
actual costs charged to the Developer by the general contractor;
7
SUBSTITUTED
notwithstanding the above, the general contractor shall not be ermitted
to charge greater than market value for such Proposed Plan anges.
(c) Commencement of Construction. Upon: (a) the isance of the
Approvals, to the extent deemed reasonably necessary b; the Developer;
(b) the Developer's reasonable satisfaction that the co dition of the City
Property and title thereto are sufficient for the . -velopment of the
Project; and (c) the Parties' agreement to the for and substance of the
Closing Documents, the Developer shall pro .tly proceed with the
construction of the Fire Station and shall use is reasonable efforts to
complete construction of the Fire Station wit in thirty-six (36) months,
as more particularly defined in Section 16. A Temporary Certificate of
Occupancy ("TCO") for the mixed -use to r er and Parking Garage shall
not be issued prior to (1) the issuance of e TCO for the Fire Station and,
(2) the completion and transfer by th- f eveloper, as applicable, of the
other Public Benefits. Constructio r shall comply with all applicable
Building, Zoning, City and Coun codes, and other applicable laws,
rules and regulations required to 9, e complied with as part of the process
of building permit issuance. Up.n commencement of construction of the
Fire Station, the City shall no onger have access to the current parking
area for the existing fire stay s n.
(d) Alternate Parking. Dur' g construction, the Developer shall provide
alternate parking space. for Fire Department employees of the existing
fire station within 1,110 feet of the Parcels. The Developer shall have
the right to termina this alternate parking area once both the TCO for
the Fire Station is 'ssued and the Fire Station Parking is available.
(e)
(1)
(g)
Costs. The De
expense, up
above. No
any costs
not a re
be pai
Loper shall construct the Fire Station at its sole cost and
o and not to exceed $8,000,000, subject to Section 9(b)
ithstanding any language in this Agreement to the contrary,
r expenses incurred to construct the Fire Station, which are
It of the City's request, delay, or Proposed Plan Changes, shall
for by the Developer.
Fl+ •r Area Limitation. The Fire Station's building Floor Area shall not
e ceed 31,078 gross square feet, inclusive of mechanical and common
reas.
Design and Review Process. All plans and applications related to the Fire
Station are subject to review and approval by the City for compliance
with this Agreement and all other applicable laws, regulations and
ordinances.
(h) Fire Station Permitting Fees. The City shall be solely responsible for
payment of any and all municipal or governmental fees from any
jurisdiction having authority, including but not limited to City, County,
8
(i)
(J)
(i)
SUBSTITUTED
State and Federal related to any permits, certifications, deve •pment
orders, inspections and approvals required for the developm t of the
Fire Station, including but not limited to fees for building per its, public
works approvals, zoning approvals, Certificate of Use, -rtificates of
Occupancy, Department of Environmental Resourc: Management
approvals and Miami -Dade County Water and S - er Department
approvals and agreements to provide water and sewe service. The City
shall also be responsible for all other perm' ing, municipal or
governmental fees related to construction of t interior finishes and
interior build -out, and occupancy of the Fire St - ion.
Water and Sewer Connection Charges and ilities. The Developer at its
sole cost and expense shall (a) pay all ater and sewer connection
charges and (b) provide and construct . water and sewer infrastructure
required to support the Project and the ire Station.
Coo•eration• Ex edited Permittin
and Time is of the Essence.
The Parties agree to cooperate with each other to the full extent
practicable pursuant to e terms and conditions of this Agreement.
The Parties agree tha ' ime is of the essence in all aspects of their
respective and mut =1 responsibilities pursuant to this Agreement.
The City shall us its best efforts to expedite the permitting and
approval procesfor the Project in an effort to assist the Developer
in obtaining e Approvals and achieving its development and
construction ilestones, including, without limitation, substantial
completio r of the Fire Station.
(ii) Notwit tanding the foregoing, the City shall not be obligated to
issue ny permit to the extent the Developer does not comply with
the pplicable requirements of the Approvals, the Comprehensive
P. n, this Agreement, applicable building codes, and any other
tatute, ordinance, rule, or regulation.
The Developer shall have the right to enter upon and inspect the City
Property and otherwise conduct such tests and investigations as the
Developer deems necessary in connection with the development of
the City Property. The foregoing shall include, without limitation,
water and soil sampling and other environmental inspections,
obtaining surveys and geotechnical testing.
(iv) The City shall grant to the Developer a general access easement to
enter upon the City Property in order to construct the Fire Station.
(v) The Developer shall have the right to review and inspect title to the
City Property in order to determine its status.
9
SUBSTITUTED
(k) Indemnity; Insurance. The Developer shall, at its own cost and exp se,
indemnify, hold harmless, and defend the City, its officia : and
employees from all actions, claims, losses, liabilities, suit•, costs,
damages or fees arising out of its construction of the F Station
including without limitation personal injury, property loss or damage,
contract, construction, actions for design defects, lab.r, materials,
supplies, and/or statutory actions through administr, ive, trial and
appellate stages. The Developer shall maintain ale, ate coverage in
terms of general liability and excess umbrella, affo 'i ing coverage on a
primary and non-contributory basis, insuring ainst all applicable
exposures arising out of a bodily injury, dea , or property damage
claims resulting from, or in connection w' this agreement. Such
policies shall be endorsed to list the City as n additional insured. The
Developer shall further require any an. all contractors to maintain
adequate coverage during the constructis phase of the Project.
Section 10. Fire Station Operation. The Parties h-, eby agree upon the following with
respect to the operation of the Fire Station:
(a) Environmental Remediation ari Indemnification. The City agrees to
indemnify and hold harmless e Developer from and against any and all
loss, cost, expense or other . bility incurred by the Developer (including,
without limitation, all rea • nable attorneys' and paralegals' fees incurred
thereby, whether or nr litigation is commenced and, if commenced,
through all appellate .roceedings) as a result of the presence of any
hazardous material sr waste (all as defined under applicable local, state
or federal laws, r - s and regulations) on the City Property. Specifically,
City, not Deve •per, shall be responsible for any damages, expenses,
costs, etc. as .ciated with the fuel tanks currently on City Property or
any remediion required by damage or release of hazardous materials
therefrom e fuel tanks may have caused.
(b) Occu
(c)
nc . Upon receipt of TCO for the Fire Station, the Fire
Dep ment will be permitted to take possession of the Fire Station.
uisance. As detailed in Section 316.271, Florida Statutes, Fire
epartment service vehicles' sirens, whistles or bells "shall not be used
except when the vehicle is operated in response to an emergency call, in
which event the driver of the vehicle shall sound the siren, whistle, or
bell when reasonably necessary to warn pedestrians and other drivers of
the approach thereof," If the Fire Department service vehicles are not
responding to an emergency call or warning pedestrians or other drivers,
then the use of sirens will be prohibited in order to avoid any disturbance
and nuisance to residents and neighbors. The Fire Department shall adopt
and enforce policies that minimize the noise caused by, or at the Fire
Station.
10
SUBSTITUTED
(d) Utilities and Operating Expenses. The City shall be responsib - for
payment of expenses directly serving and solely attributable to e Fire
Station including but not limited to utility expenses such as -. ectricity,
cable, water and sewer service, and operational expenses i luding but
not limited to maintenance costs, The Developer shall be r ponsible for
installation of separate meters and/or connections for -.. ectrical, cable,
water and sewer utilities to service the Fire Station. he cost of other
services such as solid waste removal and any costs .f shared facilities
within the Project allocable to the Fire Station will .e paid by the City.
(e)
Taxes. The Fire Department's use and owners ip of the Fire Station is
solely for the specific, exclusive municipal p 4 .Iic purpose and essential
public service of providing a Fire -Rescue S '.tion and is not subject to ad
valorem taxation. In the event the Coun Property Appraiser assesses
ad -valorem taxes against the Fire Stat'. n or the remaining fee interest
owned by the City after the Closing, e Developer will cooperate with
the City's efforts to ensure that n taxes are assessed against the Fire
Station, at no expense to Develop . Notwithstanding anything provided
in this Agreement, in no event hall the Developer and its' successors,
transferees and/or assigns bresponsible for payment of any taxes
assessed for the Fire Statio or the remaining fee interest owned by the
City after the Closing, being agreed that the City shall be solely
responsible for same.
Section 11. Closing
(a) Closing. The C . sing shall occur no later than one hundred and eighty
days (180) da from the Effective Date.
(b) Closin D
enter int',
necess
subs
"C
cuments. Upon the Closing, the Parties shall simultaneously
the following documents, in addition to any other documents
y to effectuate the Closing, all of which shall be in form and
nce reasonably acceptable to the Parties (collectively, the
sing Documents"):
In order to consummate the Developer Conveyance, the Developer
shall execute a deed to the City for the Developer Property (the
"Developer Deed").
(ii) In order to consummate the creation of the Air Rights Parcel, the
Parties shall execute (a) any documents, deeds, etc. establishing the
Air Rights Parcel and the Developer's ownership thereof, and (b) all
other documents reasonably required in order to maximize
development rights to the Project.
(iii) The Parties shall execute a Declaration of Restrictive Covenants
providing for (a) various easements of support, access and utilities,
11
SUBSTITUTED
(b) prohibited uses on the retail space, (c) the terms f%r the
public/private use of the Parking Garage and the Fire Station
Parking, (d) the provisions of clause (iv) below, and (e) : eh other
matters regarding the interrelationship between the Fir Cation and
the rest of the Project.
(iv) The Parties shall execute such title affidavits another documents
reasonably and customarily required by each P. y's applicable title
company in order to insure title thereto.
(v) The Parties shall execute such other doc 4ments as are reasonably
required to effectuate the transactis contemplated by this
Agreement.
Section 12. Permitted Develo ment Uses and Buil' m' Intensities.
(a)
The density proposed for the Prect shall not exceed that which is
permitted by the Approvals.
(b) The uses permitted on the P j reels include, but are not limited to, the
following uses: office, hot- , retail, entertainment, and any other uses
permitted by the Approv. s
(c) Nothing herein shall ohibit Developer from requesting an increase in
the density or inten y or modification of any other zoning regulation of
the Project permi ed on the Property, as long as such increase in density
or intensity or r odification of any other zoning regulation is consistent
with the Co +rehensive Plan, the Approvals and this Agreement as it
exists on th. Effective Date, and said increase does not negatively affect
the Fire S '•tion's provision of service.
(d) The P .ject is eligible for the bonus height and Floor Lot Ratio benefits
due o the Public Benefits that the Project encompasses.
(e) ' ublic Benefits resulting in additional benefits are those delineated in
Exhibit A. The total costs ofthe public benefits for the Project are above
and beyond the monetary payment which would be required under the
Public Benefits Trust Fund regulations of Miami 21 and Chapter 62 of
the City Code.
Sectio 13. Approvals.
(a) Once the Approvals are granted, the Approvals shall govern development
of the Parcels for the duration of this Agreement. The City's laws and
policies adopted after the Effective Date ofthe Approvals may be applied
to the Parcels only if the determinations required by Section 163.3233(2),
Florida Statutes (2016) have been made after thirty (30) days written
notice to Developer and after a public hearing.
12
SUBSTITUTED
(b) Pursuant to Section 163.3233(3), Florida Statutes (2016), this prohib' ion
on downzoning supplements, rather than supplants, any rights thmay
vest to Developer under Florida or Federal law. As a result, D= eloper
may challenge any subsequently adopted changes to land De /elopment
regulations based on (A) common law principles inclu+ g, but not
limited to, equitable estoppel and vested rights, or (B) atutory rights
which may accrue by virtue of Chapter 70, Florida Stat . es (2016).
Section 14. Local Development Permits.
(a) The development of the Project in accordantwith the Approvals is
contemplated by Developer. The Project may equire additional permits
or approvals from the City, County, State, sr Federal government and
any divisions thereof. Subject to requirelegal process and approvals,
the City shall make a good faith effo to take all reasonable steps to
cooperate with and facilitate all sue approvals, including acting as an
applicant or co -applicant when applicable. Such approvals include,
without limitation, the followig approvals and permits and any
successor or analogous approvs and permits:
(i) Subdivision plat or wa er of plat approvals;
(ii) Covenant in Lieu of Unity of Title, Unity of Title, or Restrictive
Covenant accept ce or the release of existing unities or covenants;
(iii) Building per ► its;
(iv) Certifica s of use;
(v) Certi cates of occupancy;
(vi) S . rmwater Permits;
(vii) Any other official action of the City, County, or any other
government agency having the effect of permitting Development of
the Project.
In the event that the City substantially modifies its Land Development
regulations regarding site plan approval procedures, authority to approve
any site plan for a project on the Parcels shall be vested solely in the City
Manager's designee(s), with the recommendation of the Planning
Director and other departments, as applicable. Any such site plan shall
be approved if it meets the requirements and criteria of the Approvals,
the Comprehensive Plan, and the terms of this Agreement.
Section 15. No Contract Zoning/Express Reservation of Police Powers. The City
c.� ot, and hereby specifically does not, waive or relinquish any of its regulatory approval or
nforcement rights and obligations as it may relate to regulations of general applicability which
13
SUBSTITUTED
may govern any of the properties referenced in this Agreement. Nothing in this Agreement all
be deemed to create an affirmative duty of City to abrogate its sovereign right to exercise its olice
powers by approving or disapproving or taking any other action in accordance with its zo ng and
land use codes, administrative codes, ordinances, rules and regulations, federal aws and
regulations, state laws and regulations, and grant agreements. In additional, nothin erein shall
be considered zoning by contract.
Section 16. Construction Timeframe. Construction of the Projecshall commence
within thirty-six (36) months of the Effective Date, unless otherwise exte reed as provided in
Section 7 above, and six (6) months from the date of the issuance of the • ilding permit for the
Project. Construction shall be as defined in Section 3 above. Constructio of the Fire Station must
be completed within thirty-six (36) months from the issuance of the b ilding permit for the Fire
Station. In the event the Developer is delayed as a direct result of li gation against or involving
(but in no event initiated by) Developer, the deadlines specified in t Section 16 shall be extended
by the length of such delay.
Section 17. Consistency with Comprehensive PI. i . The City finds that Development
of the Parcels in conformity with the Approvals is consiste with the Comprehensive Plan. As of
the Effective Date, Developer is conducting an extensive alysis ofthe Public Facilities available
to serve the Project. In the event that the Developer is required to provide additional Public
Facilities to accommodate the Project, Developer w' 1 provide such Public Facilities consistent
with the timing requirements of Section 163.3180 Florida Statutes (2016). Developer shall be
bound by City impact fees and assessments in exience as ofthe Effective Date of this Agreement.
Section 18. Consistency with F eral, State, Miami -Dade County and City of
Miami Laws and Regulations. The City s undertaken review ofthis Agreement for compliance
with the laws, ordinances, regulations a policies of the City of Miami, and has determined that
construction ofthe Project will be con stent with the State Constitution and Statutes, the Florida
Building Code, and the American wi Disabilities Act ("ADA").
Section 19. Necessity of Complying with Local Regulations Relative to
Development Permits. Develo er and the City agree that the failure of this Agreement to address
a particular permit, conditio fee, term, license, or restriction in effect on the Effective Date shall
not relieve Developer of t, - necessity to comply with the regulation governing said permitting
requirements, condition fees, terms, Iicenses, or restrictions as long as compliance with said
regulation and require ents do not require the Developer to develop the Parcels in a manner
inconsistent with the design and purpose of the Project and the laws of the City of Miami in
existence as of the ffective Date.
Sectio i 0. Reservation of Development Rights.
(a) For the term of this Agreement, the City hereby agrees that it shall permit
the development ofthe Project in accordance with the Approvals and this
Agreement.
(b) The expiration or termination ofthis Agreement shall not be considered
a waiver of, or limitation upon, the rights, including, but not limited to,
14
SUBSTITUTED
any claims of vested rights or equitable estoppel, obtained or he
Developer or its successors or assigns to continue development
Project in conformity with the Approvals and all prior and su
development permits or development orders granted by
concerning this Project. Notwithstanding the aforem
Developer has not commenced construction during this
extended term, as provided in Section 7 and Section
seek alternative development plans, for the City Prop
include Developer or the Project, whereupon
Developer Property that is owned by the City wil
City to the Developer and the portion of the Cit
by the Developer shall be reconveyed by t
Furthermore, Developer or its successors
development rights, including, but not li
rights or equitable estoppel, to contin
whatsoever if this Agreement is ter
below. In the event the City term
Section 21 below and construction
under Section 16 above, the po
owned by the City will be rec
the portion of the City Prop
reconveyed by the Develo . - r
Section 21. Bi-Annual Review.
by
f the
sequent
the City
tioned, if
in ial term or an
1 ., the City may
rty, which do not
e portion of the
e reconveyed by the
Property that is owned
Developer to the City.
or assigns shall have no
ted to, any claims of vested
e development of the Project
inated pursuant to Section 21,
ates this Agreement pursuant to
f the Project has not yet commenced
ion of the Developer Property that is
veyed by the City to the Developer and
y that is owned by the Developer shall be
o the City.
(a) Developer shall pr ; ide the City on a bi-annual basis a status of the
Project in order ' or the City to conduct an annual review of the
Development. -annual, as the term is used herein, shall refer to twice
in a single ye. This requirement shall commence three (3) months after
the Effectiv- Date.
(b) During ; s review, the City may ask for additional information not
provis d by Developer. Any additional information required of
Devi oper during a review shall be limited to that which is reasonably
ne ' essary to determine the extent to which Developer is proceeding in
ood faith to comply with the terms of this Agreement. Notwithstanding
any language in this Agreement to the contrary, the City shall also be
entitled to review at any time, within ten (10) days' written notice, and
at the Developer's main accounting office or other mutually acceptable
location, any and all financial information which is reasonably necessary
to confirm information or resolve issues that may subject to Audit,
including but not limited to, profit and loss statements, construction
updates, balance sheets, check registers, and other financial information.
(c) If the City finds on the basis of competent substantial evidence that
Developer has not proceeded in good faith to comply with the terms of
this Agreement, the City may terminate or amend this Agreement after
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SUBSTITUTED
providing thirty (30) days written notice to Developer and after a pubI'
hearing before the City Commission.
Section 22. Collective Ownership Structure. The Developer's right to cony • rt and
submit the overall Project or portions thereof, including the Fire Station, to a condomi m form
of ownership or another collective ownership structure (a "Collective Ownership Str cture") at
any time is expressly reserved under this Agreement. The City hereby expressly agr: - s and grants
its' prospective consent to permit the conversion and submission of the Project or . •rtions thereof,
including the Fire Station, to a Collective Ownership Structure, whether before or . fter the Closing.
The declaration and/or instruments governing any Collective Ownership Str ture that includes
the Fire Station shall contain appropriate disclosures regarding the location efthe Fire Station in
the Project and intended operations therefrom consistent with this Agree ' ent. The Fire Station
shall not be subject to any assessments by the condominium association
Section 23.
(a)
To the City:
Notices.
All notices, demands, and requests whi
hereunder shall, except as otherwis
and delivered by personal service
Certified Mail, return receipt req
express delivery, such as Fede
listed below, Any notice g
deemed given when receiv
which fall on Saturday,
deemed to be perfor
thereafter which sha
City Manager
City of Miam
3500 Pan A
Miami, F 33
With copies to:
C Attorney
iami Riverside Center
444 S.W. 2nd Avenue
9th Floor
Miami, FL 33130
may or are required to be given
expressly provided, be in writing
sent by United States Registered or
ested, postage prepaid, or by overnight
I Express, to the Parties at the addresses
en pursuant to this Agreement shall be
Any actions required to be taken hereunder
day, or United States legal holidays shall be
ed timely when taken on the succeeding day
not be a Saturday, Sunday, or legal holiday.
erican Drive
133
Director — Department of Real Estate and Asset Management
Miami Riverside Center
444 S.W. 2nd Avenue
3rd Floor
Miami, FL 33130
16
To Developer:
SUBSTITUTED
Southside Place, LLC
With a copy to:
Gunster, Yoakley & Stewart, PA
600 Brickell Avenue
Brickell World Plaza, Suite 3500
Miami, Florida 33131
ATT: Mario Garcia -Serra, Esq.
Any party to this Agreement may change i notification address(es) by providing
written notification to the remaining Part' s pursuant to the terms and conditions of
this section.
Section 24. Good Faith. Further Ass
negotiated in good faith. It is the intent and agre
each other in good faith to effectuate the pu
under this Agreement in order to secure t
Agreement. The Parties shall execute suc
effectuate the provisions of this Agreem
to inhibit, restrict, or require the exer
acting in a quasi-judicial capacity.
Section 25. Exclusive
understood and agreed by the
the State of Florida, and any
that any action at law, suit
or any provision hereof
and venue for any suc
Dade County. In ad
to specific perfo
Each party waiv
courts are an
jurisdiction
Each part
Agreem
ances. The Parties to this Agreement have
ent of the Parties that they shall cooperate with
oses and intent of and to satisfy their obligations
themselves the mutual benefits created under this
further documents as may be reasonably necessary to
t provided that the foregoing shall in no way be deemed
se of the City's police power or actions of the City when
enue Choice of Law
S
ecific Performance. It is mutually
arties hereto, that this Agreement shall be governed by the laws of
pplicable federal law, both as to interpretation and performance, and
equity, or judicial proceedings for the enforcement of this Agreement
all be instituted only in the courts of the State of Florida or federal courts
actions shall lie exclusively in a court of competent jurisdiction in Miami -
ion to any other legal rights, the City and Developer shall each have the right
nee of this Agreement in court, Each party shall bear its own' attorney's fees.
s any defense, whether asserted by motion or pleading, that the aforementioned
proper or inconvenient venue. Moreover, the Parties consent to the personal
the aforementioned courts and irrevocably waive any objections to said jurisdiction.
shall bear its own attorneys' fees in civil actions between them arising out of this
t. The Parties irrevocably waive any rights to a jury trial.
Section 26. Voluntary Compliance. Developer and the City agree that in the event all
or : y part of this Agreement is struck down by judicial proceeding or preempted by legislative
17
SUBSTITUTED
action, Developer and the City shall continue to honor the terms and conditions of this Agreeme t
to the extent allowed by law.
Section 27. No Oral Change or Termination. This Agreement and the exhi' is and
appendices appended hereto and incorporated herein by reference, if any, constitute e entire
Agreement between the Parties with respect to the subject matter hereof. This Agreement
supersedes any prior agreements or understandings between the Parties with respec o the subject
matter hereof, and no change, modification, or discharge hereof, in whole or part, shall be
effective unless such change, modification, or discharge is in writing and si ed by the party
against whom enforcement of the change, modification, or discharge is so t and the same is
recorded in the Public Records of Miami -Dade County, Florida. This greement cannot be
changed or terminated orally.
Section 28. Compliance with Applicable Law. Subject t. the terms and conditions of
this Agreement, throughout the Term of this Agreement, Developer . nd the City shall comply with
all applicable federal, state, and local laws, rules, regulations, odes, ordinances, resolutions,
administrative orders, permits, policies and procedures, and r, ders that govern or relate to the
respective Parties' obligations and performance under this A. -ement, all as they may be amended
from time to time.
Section 29. Re r resentations• Re r resentati es. Each party represents to the other that
this Agreement has been duly authorized, delivered .nd executed by such party and constitutes
the legal, valid, and binding obligation of such pa , enforceable in accordance with its terms.
Section 30. No Exclusive Remedie No remedy or election given by any provision in
this Agreement shall be deemed exclusive u r ess expressly so indicated. Wherever possible, the
remedies granted hereunder upon a defaul of the other party shall be cumulative and in addition
to all other remedies at law or equity ari ng from such event of default, except where otherwise
expressly provided.
Section 31. Failure to ercise Ri hts not a Waiver. Waiver Provisions. The failure
by either party to promptly execise any right arising hereunder shall not constitute a waiver of
such right unless otherwise ex' essly provided herein. No waiver or breach of any provision of
this Agreement shall consti to a waiver of any subsequent breach of the same or any other
provision hereof, and no w iver shall be effective unless made in writing.
Section 32.
performance of any
obligation shall be
beyond the reas
Developer fro
limited to: a
war, hosti
or disor
Party'
by,
F. ce
orce Majeure. If any Party to this Agreement shall be delayed in the
ligation herein as a result of a Force Majeure, then the performance of such
xtended by the length of such delay. A "Force Majeure" shall mean an event
able control of either the City or Developer, which prevents either the City or
complying with any of its obligations under this Agreement, including but not
of God (such as, but not limited to, fires, explosions, earthquakes, and hurricanes);
ies, acts of threat or terrorism (whether war be declared or not); riots, strikes, lock outs
er. The Party prevented from carrying out its obligations hereunder (the "Affected
shall give notice to the other Party of an Event of Force Majeure upon it being foreseen
becoming known to, the Affected Party. In response to and during any delay caused by a
Majeure, the Parties shall at all times act diligently and in good faith to bring about the
18
termination or removal of the Force Majeure as promptly as reasonably possible and any "'arty
seeking an excuse of performance due to such Force Majeure shall work diligently and good
faith to reduce or eliminate any damage, cost or delay caused by such Force Majeure. ither the
City nor the Developer shall be considered in breach of this Agreement to the -xtent that
performance of their respective obligations is prevented by an Event of Force Maje re that arises
after the Effective Date of this Agreement.
Section 33. Events of Default.
(a)
Developer shall be in default under this Agreem
perform or breaches any term, covenant, or co
and such failure is not cured within thirty
written notice from the City specifying
provided, however, that if such breach ca
thirty (30) days, then Developer shall
to cure such breach within said th
prosecutes such cure to completio
t if Developer fails to
ition of this Agreement
30) days after receipt of
he nature of such breach;
ot reasonably be cured within
ot be in default if it commences
y (30) day period and diligently
(b) The City shall be in default der this Agreement if the City fails to
perform or breaches any tercovenant, or condition of this Agreement
and such failure is not c ed within thirty (30) days after receipt of
written notice from the 1 veloper specifying the nature of such breach;
provided, however, th. if such breach cannot reasonably be cured within
thirty (30) days, the i ity shall not be in default if it commences to cure
such breach with' said thirty (30) day period and diligently prosecutes
such cure to co .letion.
(e) It shall not b a default under this Agreement if either party is declared
bankrupt b, a court of competent jurisdiction. All rights and obligations
in this • ,reement shall survive such bankruptcy of either party. The
Parties ereby' forfeit any right to terminate this Agreement upon the
ba ptcy of the other party. This section does not absolve Developer
of : ny of its obligations pursuant to the City Code should it declare
nkruptcy, including but not limited to ensuring that all construction
sites, buildings, structures, and excavation sites are safe.
The default of a successor or assignee of any portion of Developer's
rights and obligations hereunder shall not be deemed a breach by the
Developer that has assigned such rights and obligations.
Sect n 34. 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, Developer and the City agree that any
Party may seek specific performance of this Agreement, and that seeking
19
SUBSTITUTED
specific performance shall not waive any right of such Party to also se
monetary damages, injunctive relief, or any other relief other an
termination of this Agreement. Each Party shall bear its own att. ney's
fees in any such action.
Section 35. Partial Invalidity or Unenforceability. If any term or prow ion of this
Agreement or the application thereof to any person or circumstance shall, to any e ent, hereafter
be determined to be invalid or unenforceable, the remainder of this Agreement . the application
of such term or provision to persons or circumstances other than those as to wh'' it is held invalid
or unenforceable shall not be affected thereby and shall continue in full fore- and effect.
Section 36. Severability. In the event that any provision o
application thereof, becomes or is declared by a court of competent jur
invalid or unenforceable, the remainder of this Agreement will co
and the application of such provisions to other persons or circums
reasonably to effect the intent of the Parties. The Parties further
invalid or unenforceable provision of this Agreement with a le
that will achieve, to the extent possible, the economic, busin
void, invalid or unenforceable provision.
this Agreement, or the
diction to be illegal, void,
nue in full force and effect
nces will be interpreted so as
ree to replace such illegal, void,
al, valid and enforceable provision
s and other purposes of such illegal,
Section 37. Assignment and Transfer. Th': Agreement shall be binding on Developer
and its heirs, successors, and assigns, including the s ccessor to or assignee of Developer's interest
in the Air Rights Parcel. Developer, at its sole .' cretion, may assign, in whole or in part, this
Agreement or any of its rights and obligatio hereunder, or may extend the benefits of this
Agreement, to any subsequent owner of the • '' Rights Parcel only after obtaining the City's prior
written consent and approval, which shall .t be unreasonably withheld; provided, however that
such consent and approval of the City s all not be so required in the event that certificates of
occupancy have been issued for the mi d use tower, Parking Garage, and Fire Station comprising
the Project; however, in such an eve - t, the Participation Payment specified in Section 38 below
shall continue to be required prior • the first assignment, transfer, or conveyance to a third party.
Any such assignee shall assume 1 applicable rights and obligations under this Agreement. Any
reference to Developer in thi Agreement also applies to any heir, successor, or assignee of
Developer.
Section 38. P
Benefits by making th
H.
fit Partici i ation Pa ments. Developer shall provide additional Public
rofit Participation Payments which shall be payable pursuant to Exhibit
Section Obligations Surviving. Notwithstanding any language in this Agreement
to the contrary in the event of any lawful termination of this Agreement, the following obligations
shall surviv- such termination and continue in full force and effect until the expiration of one (1)
year term . allowing the earlier of the effective date of such termination or the expiration of the
Term: (', the exclusive venue and choice of law provisions contained herein; (ii) rights of any party
arising during or attributable to the period prior to expiration or earlier termination of this
Agr; ment; and (iii) any other term or provision herein which expressly indicates either that it
s ives the termination or expiration hereof or is or may be applicable or effective beyond the
xpiration or permitted early termination hereof.
20
SUBSTITUTED
Section 40. Lack of Agency. Relationship. Nothing contained herein shall be co strued
as establishing an agency relationship between the City and Developer and neither Deve .per nor
Its employees, agents, contractors, subsidiaries, divisions, affiliates, or guests shall %e deemed
agents, instrumentalities, employees, or contractors of the City for any purpose hereu der, and the
City, its contractors, agents, and employees shall not be deemed contractors, agent or employees
of Developer or its subsidiaries, divisions, or affiliates.
Section 41. Coo i eration• Ex s edited Permittin ' and Time is of i e Essence.
(a) The Parties agree to cooperate with each o er to the full extent
practicable pursuant to the terms and conditio , of this Agreement. The
Parties agree that time is of the essence in a aspects of their respective
and mutual responsibilities pursuant to t : Agreement. The City shall
use its best efforts to expedite the permi ng and approval process in an
effort to assist Developer in achieving ' s Development and construction
milestones. The City will accom 'odate requests from Developer's
general contractor and subcontrac .rs for review of phased or multiple
permitting packages, such as ose for excavation, site work and
foundations, building shell, cr e, and interiors, In addition, the City
Manager will designate an ' : ividual who will have a primary (though
not exclusive) duty to serve s the City's point of contact and liaison with
Developer in order to fac' tate expediting the processing and issuance of
all permit and license at r lications and approvals across all ofthe various
departments and offi . s of the City which have the authority or right to
review and approv- .11 applications for such permits and licenses.
(b) Notwithstanding the foregoing, the City shall not be obligated to issue
any permit to e extent Developer does not comply with the applicable
requirement: ofthe Approvals, the Comprehensive Plan, this Agreement,
applicable ruilding codes, and any other statute, ordinance, rule, or
regulati
Section 42. Enforc ment.
(a) I ' the event that Developer, its successors, or assigns fails to act in
ccordance with the terms of the Approvals or this Agreement, the City
shall have the right to enforce the provisions of this Agreement. In the
event that the City, its successors, or assigns fails to act in accordance
with the terms of Approvals or this Agreement, the Developer shall have
the right to enforce the provisions of this Agreement.
(b) Enforcement of this Agreement by any Party shall be by action against
any Parties or person violating, or attempting to violate, any covenants
set forth in this Agreement. In the event of a suit for the enforcement of
this Agreement, each Party shall be responsible for their own attorney's
fees.
21
SUBSTITUTED
Section 43. Amendment or Termination by Mutual Consent. This Agreement - ay
not be amended or terminated during its term except by mutual written agreement of Dev- oper
and the City. Prior to any amendment or termination of this Agreement during its term, e City
shall hold two (2) public hearings before the City Commission to consider and delib: ate such
amendment or termination. Any amendment or termination shall be recorded in the p •lic records
of the County at Developer's sole cost.
Section 44. Third Party Defense. The City and Developer shall eac at their own cost
and expense, vigorously defend any claims, suits, or demands brought against em by third Parties
challenging this Agreement or the Project, or objecting to any aspect there f, including, without
limitation, (i) a consistency challenge pursuant to Section 163.3215, Flori ; a Statutes (2010), (ii) a
petition for writ of certiorari, (iii) an action for declaratory judgment, • (iv) any claims for loss,
damage, liability, or expense (including reasonable attorneys' fees). e City and Developer shall
promptly give the other written notice of any such action, inclus ' g those that are pending or
threatened, and all responses, filings, and pleadings with respect ereto.
Section 45. No Conflict of Interest. Developer ag •es to comply with Section 2-612 of
the City Code as of the Effective Date, with respect to con i cts of interest.
Section 46. No Third -Party Beneficiary. N'. persons or entities other than Developer
and the City, their heirs, permitted successors, and as gns, shall have any rights whatsoever under
this Agreement.
Section 47. Counterparts. This A! eement may be executed in two (2) or more
counterparts, each of which shall constitute ar originaI but all of which, when taken together, shall
constitute one and the same agreement. addition, any counterpart signature page may be
executed by any Party whosesoever sue Party is located, and may be delivered by electronic
transmission of PDF, and any such ele - ronically transmitted signature pages sent by PDF may be
attached to one or more counterpart of this agreement, and such signature(s) sent by PDF shall
have the same force and effect, anbe as binding as if original signatures had been executed and
delivered in person.
Section 48. Publi ' ecords. The Parties shall comply with the Florida Public Records
Act, Chapter 119, Florida atutes, as amended , as further provided in Exhibit H. The Developer
shall seek the City's inp and obtain the City's prior written approval of any statements made to
the public or press or y press reldases regarding the Project.
Section 49 Abutting Property Owners. The City and Developer have a mutual
interest in ensur g that construction of the Project proceeds in a manner which is respectful of
and sensitive owners of property abutting the Project ("Abutting Owners"). In recognition of
this concern during construction of the Project, Developer agrees to ensure that Abutting Owners
are compe, sated for any actual damages which directly result from accidental loss ofutility service
caused • Developer, its contractors, or subcontractors at Developer's sole cost and expense.
Section 50. Status. Upon request from time to time by Developer, or its successor,
as gns, or any mortgagee of Developer, its successor, or assign, the City shall deliver to such
questing party a letter (in recordable form, if requested) stating whether the obligations of
22
SUBSTITUTED
Developer or its successor or assign under this Agreement are current and in good standing . have
been satisfied. In the event Developer or its successor or assign is not current in its obli:..tions or
such obligations are not satisfied, said letter shall state the particular manner in ich such
person's obligations under this Agreement are not current and in good standing or ave not yet
been satisfied.
Section 51. Estoppel. Within ninety (90) days of receipt of writt: request from a
Developer party, but in no event more often than three (3) times per year, the ' ity Manager or his
designee, shall execute an estoppel certificate or similar document on behof the City, in form
and substance reasonably acceptable to the City Attorney, affirming Deve .per's compliance with
the conditions set forth in this Agreement.
Section 52. Accord and Satisfaction. No payment by th. DeveIoper or receipt by the
City of a lesser amount than a Profit Participation Payment or othe . mount due as specified herein
shall be deemed in satisfaction of any such amounts owed; nor s .11 any endorsement or statement
on any check remitting partial payment or any letter accompan ng any partial payment be deemed
an accord and satisfaction of the Developer's obligations. he City shall accept such check or
payment without prejudice to the City's right to recover e balance of any Profit Participation
Payment or pursue any other remedy provided herein or .y law.
Section 53. Entire Agreement. This Agr
forming a part thereof as if fully set forth here
agreements, conditions and understandings bet
Developer Property and there are no covenants
or written, between them other than those
written, made between the Parties shall be
of prior dealings between the Parties or
relevant or admissible to supplement
Acceptance of, or acquiescence in, a
prior agreement between the Part
determine the meaning of any oft
no subsequent alteration, chan
the Developer unless reduce
Agreement must be approv
however, that the City M
amendments of this Agr
been negotiated "at a
opportunity to be re
of this Agreement
be deemed dispr
ment and the exhibits attached hereto and
constitute all of the covenants, promises,
en the City and the Developer concerning the
remises, conditions or understandings, either oral
et forth herein. All representations, either oral or
eemed to be merged into this Agreement. No course
heir officers, employees, agents or affiliates shall be
explain or vary any of the terms of this Agreement.
urse of performance rendered under this Agreement or any
s or their affiliates shall not be relevant or admissible to
terms of this Agreement. Except as herein otherwise provided,
or addition to this Agreement shall be binding upon the City or
o writing and signed by the Parties. Any amendments to this
with the same formalities as were used in its execution; providing,
ager may administratively execute non -material (i.e. non -substantial)
ement in the exercise of his professional discretion. This Agreement has
's length" by and between the City and the Developer, each having the
esented by legal counsel of its choice and to negotiate the form and substance
and therefore, in construing the provisions of this Agreement neither party will
portionately responsible for draftsmanship.
Secti ; n 54. Independent Parties. It is understood and agreed by the Parties hereto that
this Agree ► ent does not create a fiduciary or other relationship between the Parties. The City and
the Dev- . oper are and shall be independent contracting parties and nothing in this Agreement is
intend-: to make either Party a general or special agent, joint venture, partner or employee of the
other or any purpose.
23
SUBSTITUTED
Section 55. Captions and Section Numbers. The captions, section number , and
article numbers in this Agreement are inserted only for convenience and in no way defin , limit,
construe or describe the scope or intent of such sections or articles of this Agreement o in any
way affect this Agreement.
Section 56. Consents. Wherever in this Agreement, the consent of one r arty is required
for an act of the other party, unless otherwise specified, such consent shall no ' be unreasonably
withheld, delayed or conditioned.
Section 57. Construction of the Agreement. The parties ag
represented by counsel during, and each has been active in, the ne
execution ofthis Agreement, and therefore, waive the application of a
providing that ambiguities in an agreement or other document will
drafting such agreement or document.
e that they have been
tiation, preparation and
law or rule of construction
e construed against the party
Section 58. City Approvals. To the extent allowe by the City Charter and the City
Code, approvals required by this Agreement may be made dministratively by the City Manager
or if authorized by a delegation from the Manager, the D etor of the City of Miami Department
of Real Estate Asset Management as his authorized dele s te. This Agreement requires the approval
of the City Commission for it to be legally effective a • binding. The failure of such approval shall
render this Agreement null and void without furthe ction of the Parties.
NOW WHEREOF, the City and Deve. oper have caused this Agreement to be duly
executed.
IN WITNESS WHEREOF, th- ' arties have executed this Agreement.
ATTEST: CITY OF MIAMI, a Florida municipal
(SEAL: Todd Hannon, City Clerk corporation
By:
Daniel J. Alfonso
City Manager
Dated:
STATE OF FLO
COUNTY OF IAMI-DADE
Th foregoing instrument was acknowledged before me this
by Dani: J. Alfonso, as the CITY OF MIAMI, a Florida municipal
before e and is personally known to me, or has produced
iden ication, and did take an oath.
y Commission Expires: NOTARY:
day of , 20
corporation who appeared
as
24
SUBSTITUTED
Print Name:
Notary Public, State of Florida at Lar
(Notary Seal)
APPROVED AS TO LEGAL FORM APPROVED AS TO INSUNCE
AND CORRECTNESS: REQUIREMENT
Victoria Mendez
City Attorney
Anne Marie Sharp
Risk Manageme
25
WITNESSES:
Print Name:
SUBSTITUTED
SOUTHSIDE PLACE, LLC,
a Florida limited liability company
By:
Name:
Title:
Print Name: Dated:
STATE OF FLORIDA
)
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me this day of
20 by and , as the and
respectively, of SOUTHSID PLACE, LLC, a Florida limited liability
company, who appeared before me and is personally known to me, or has produced as
identification, and did take an oath.
My Commission Expires: NOTARY:
Print Name:
Notary Public, State of Florida at Large
(Notary Seal)
26
EXHIBIT A
Public Benefits
City Property: Conveyance of Developer Parcel to City
$4,477,500
New Fire Station: Construction of new Fire Station ("Fire Station Improvements")
$8,000,000
Public Benefits Cash Contribution
$500,000
Fire Station Fixtures: FF&E allowance for Fire Station Fixtures
$100,000
Public Parking: Conveyance of approximately fifty (50) parking spaces to City's
DOSP
$1,500,000
Public Streetscape: construction of unified streetscape, landscaping, etc. along W
2"d Ave and portions of SW 12 Street
$1,000,000
Participation Payment paid annually
5% of Available
Cash
TOTAL PUBLIC BENEFITS
$15,577,500 PLUS
27
SUBSTITUTED
EXHIBIT B
Air Rights Parcels
[to be inserted prior to execution]
28
SUBSTITUTED
SUBSTITUTED
EXHIBIT D
Appraisal by Joseph J. Blake &.. Associates, Inc.
[to be inserted prior to execution]
30
SUBSTITUTED
EXHIBIT E
Appraisal by Armada Appraisal & Consulting Company
[to be inserted prior to execution]
31
•_
EXHIBIT F
Developer Property
SUBSTITUTED
32
SUBSTITUTED
EXHIBIT G
Site Plan/Conceptual Development Plans
[to be inserted prior to execution]
33
SUBSTITUTED
EXHIBIT H
Profit Participation Payments
1. Definitions. The initially capitalized terms used in this Exhibit H that are not ot'erwise
defined shall have the following meanings :
a. "Available Cash" means, for the applicable or pertinent period, cash receipts
derived by the Developer from Gross Revenues (without deductio or depreciation
or for other noncash expenses or items), after deduction for ( amounts used or
necessary to pay Operating Expenses, (b) Reserves, (c) repay nt in full of interest
and principal on the senior/primary secured loan made to the I eveloper (excluding
any and all lower priority or secondary loans such as un cured, subordinated, or
mezzanine loans), and (d) the Developer Fees.
b. "Capital Contributions" means all contributions eluding land) to the capital of
the Developer made by the members, partners 'r shareholders thereof For the
avoidance of doubt, no Capital Contribution c • dit shall be received in connection
with the City's conveyance to the Developer '.fthe air rights necessary to create the
Air Rights Parcel, or the Developer's co eyance of the Developer Land to the
City.
"Developer Fees" means the fees t at the Developer shall be permitted to pay to
any parties, including, without li ation, the members, partners or shareholders of
the Developer (or affiliates th- eof) or designees. The Developer Fees shall be
excluded from Gross Reven s for purposes of the Profit Participation Payments.
The fees set forth on Sche le A attached hereto shall be deemed to be approved
by the City as Developer ees.
d. "Distributions" mes all cash distributions made by the Developer to the
members, partners •r shareholders thereof pursuant to Paragraph 2 below.
e. "Final Asset 1 sposition Event" means the date the Developer has (as determined
in its sole d' :cretion) disposed of all remaining non -cash assets, or all membership
interests, • f the Developer and has made Profit Participation Payments and
distribu ons of all or substantially all remaining Available Cash allocable to the
Deve per and the City, other than the Reserves, and any other amounts required
for ability reserves in connection with the Developer's dissolution, if any, to the
e ent they exceed the Reserves.
g.
"GAAP" means generally accepted accounting principles, consistently applied, as
recognized by the accounting industry and standards within the United States.
"Gross Revenues" means, for the applicable period, all cash and the fair market
value of any property received from all sources (including cash on hand at the
beginning of such period to the extent not held in Reserves, proceeds from a sale
34
h.
SUBSTITUTED
of assets and any funds released during such period from Reserves prev`.usly
established) by the Developer from the Project during such period.
"Operating Expenses" means for the applicable or pertinent per
expenditures or payments to make cash expenditures or payment
Developer (or any other Developer's companies) in connection
during such period directly or indirectly in connection wit
business or operations (or such other Developer's co
operations) in connection with the Project, including ex
insurance, taxes, and other expenditures paid through a
company for the operation of the Project, including a
printing, travel, telephone, and postage. For the av
Expenses do not include capital expenditures.
d, all cash
made by the
ith the Project
the Developer's
anies business or
nditures incurred for
ird-party management
ounting or bookkeeping,
idance of doubt, Operating
i. "Profit Participation Payments" shall mean t ► - payments made to the City under
Paragraph 2 below.
"Profit Participation Statement" mean • the written notice to be delivered by the
Developer to the City following the pa ent of a Profit Participation Payment and
following the occurrence of the , nal Asset Disposition Event pursuant to
Paragraph 3 below.
k. "Reserves" means funds set : side or amounts allocated during such period to
reserves which shall be mai . ined for working capital and to pay taxes, insurance,
debt service, liabilities o other costs or expenses incident to the Developer's
operations and busine : (or such other Developer's companies business or
operations) in connec on with the Project, including its dissolution and winding
up, as determined b he Developer in its sole discretion from time to time. For the
avoidance of an doubt, the Developer may continue to maintain Reserves
following the F. - al Asset Disposition Date, subject to Paragraph 3 (c) below.
2. Profit Participatio Payments. During the period that the Profit Participation Payments
are payable unde this Agreement, the Developer shall pay out Available Cash as Profit
Participation P ments and Distributions in accordance with this Agreement, whenever
practicable, b t no less frequently than annually, subject to the Developer having Available
Cash. Not hstanding the Developer's discretion regarding when to make Available Cash
payment and/or distributions, Available Cash when paid and/or distributed, must be done
so as f• lows: (i) to the City as Profit Participation Payments and (ii) to the Developer as
Distributions, in the following amounts and order:
First, 100% to the Developer until such time as the balance of the Developer's
unreturned Capital Contributions is reduced to zero;
b. Thereafter, (i) ninety five percent (95%) to the Developer and (ii) five percent
(5%) to the City.
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Though the Developer retains sole discretion on the selection of a development prog : m
for the Project, at all times the Developer will use best efforts to realize the greatest po ible
profitability for the Project.
3. Profit Participation upon Final Asset Disposition Event.
a. Following the payment of a Profit Participation Payment anfollowing the
occurrence of the Final Asset Disposition Event, the Developer all deliver to the
City the Profit Participation Statement (a) setting forth thcalculation of the
payments made to the City under Paragraph 2 and/or the f s1 payments due under
Paragraph 2 as of the date of the Final Asset Dispositio vent, as applicable. All
calculations for purposes of determining whether an final Profit Participation
Payments or Distributions shall be due hereunder shal .e determined in accordance
with the tenets of good faith in the Developer's r:. sonable discretion, subject to
subsection (b) below and GAAP. All Profit Pa. icipation Payments made to the
City under this Agreement shall be paid to the ity at the address specified herein
for notice to the City.
b. The City shall have thirty (30) days aft- receipt to review the Profit Participation
Statement and the Developer shall pr+ ide the City with access to the Developer's
books and records and accounting p; sonnel at the principal office of the Developer
located at , as reasonably required to review such
computation. In the event that e City does not agree with the determination of
the amount of unpaid or ove .: id (as the case may be) Profit Participation Payments
as set forth in the Profit P. icipation Statement, it shall advise the Developer in
writing within a sixty (. ) day period inclusive of the preceding thirty (30) day
period. Such notice shstate that it disputes the determination of the unpaid Profit
Participation Payme ' is and detail the particular items in the Profit Participation
Statement with w ch it disagrees. In such event, the Parties shall agree to engage
a national certif d public accounting firm acceptable to both Parties (the "CPA"),
to review an: confirm the determination of the aggregate amount of Profit
Participatio ► Payments due hereunder compared with the amount and confirm the
determinion of Profit Participation Payments that have been paid to the City to
determ e the aggregate amount of unpaid or overpaid Profit Participation
Pay nts. The decision of the CPA shall be binding upon the Parties (unless fraud
or . material misrepresentation is shown in a civil action in which case it shall not
binding). The determination of the aggregate amounts of unpaid Profit
articipation Payments due and payable to the City, or any overpayment of any
Profit Participation Payments, as determined by the Developer and as detailed in
the Profit Participation Statement shall be conclusive and binding on the Parties;
except that if the City gives timely written notice of any disputes, the aggregate
amount of Profit Participation Payments due and payable to the City, or any
overpayment of such amounts, as agreed upon in writing by Parties or pursuant to
the decision rendered by the CPA (as the case may be) shall be conclusively
determinative for all such purposes. Within thirty (30) Days following such final
determination, either (I) the Developer shall cause the Developer to pay to the City
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its remaining Profit Participation Payments, if any, as determined in accordce
with this Section or (II) the City shall return to the Developer any overpay nt of
Profit Participation Payments it has received in accordance with this Para ' aph 3.
Any payment owed to the Developer by the City or by the City to the P. eveloper
pursuant to this Paragraph 3 (b) that is not paid within such thirty (30, day period
will accrue interest at a rate of 8% per annum or, if lower, the highest , . to permitted
by applicable law. If the Parties engage the CPA and the aggr-,_ate amount of
unpaid Profit Participation Payments payable to the City, as • termined by the
CPA, was understated, or the aggregate amount of any ov-. payment of Profit
Participation Payments was overstated, in the Profit Parti .'.ation Statement by
more than ten percent (10%), the cost of the CPA shall ee borne solely by the
Developer. Otherwise, the cost of the CPA shall be born: solely by the City.
c. In the event that after the Final Asset Dispositio Event, the Developer has
Available Cash from any amounts previously he . in Reserves, such Available
Cash shall be paid in accordance with Paragra : i 2.
4. No Participation in Management. Notwithstand. t anything in this Exhibit H to the
contrary, in no event shall the City have the right to approve any aspect of the Developer's
operations or management whatsoever, includin t any sale of all or any portion of the Air
Rights Parcel or other non -cash assets of the 0 -veloper, the determination of Reserves or
Available Cash or the amount of or date up en which Profit Participation Payments and
Distributions shall be made, all of whic ► shall be in the Developer's sole discretion.
Accordingly, the City shall in no event . ve any liability, responsibility, culpability, or
duty relative to any management decis' . n or any management omission or action.
5. No Assignment; Taxes. The City hall not, directly or indirectly, by operation of law or
otherwise, transfer, assign, dele . te, pledge or encumber in any manner whatsoever, in
whole or in part, the right to re ive the Profit Participation Payment under this Agreement,
which right shall be persona to the City under this Agreement, except that the City may
choose to assign its right o receive the Profit Participation Payments to an agency or
instrumentality of the C y if it so wishes at the City's sole option by providing written
notice of such assig nt to the Developer. For the avoidance of doubt, the City shall not
have the right to as ' n any rights under this Agreement other than the right to receive
Profit Participatio ayments without the prior written consent of the Developer.
6. Subordinatio i of Participation Payments to Loan Documents; Covenant Not
Running wi i the Land. It is expressly acknowledged and agreed that the City's right to
receive the 'rofit Participation Payments in accordance with this Agreement is and shall
be deem: i to be automatically subordinate to any senior secured loan now or hereafter
encum► ering the Air Rights Parcel or made to the Developer in connection with the Project
and . e underlying loan documents evidencing and securing any such loan, including,
wi out limitation, the mortgage loan. This subordination shall expressly be limited to only
t ► • first debt, which shall mean the senior/primary secured loan, and shall not include any
ower priority or secondary loans such as unsecured, subordinated, or mezzanine loans. By
execution of this Agreement, the City agrees to execute any and all written
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acknowledgements of such subordination in favor of any lender providing
senior/primary secured loan to the Developer in connection with the Project.
expressly acknowledged and agreed that the City's right to receive the Profi
Payments and the Developer's obligation hereunder to pay the same
personal obligation of Southside Place, LLC under this Agreement, (b)
run or pass with the Air Rights Parcel, and (c) shall in any event expir
of the Profit Participation Payment due to the City, if any, follo
Disposition Event. Without limiting generality of the foregoing,
doubt, the obligations of Southside Place, LLC under this Agr
Participation Payment shall not be binding upon or effective a
of the Air Rights Parcel, or any portion thereof (other than So
title is acquired by deed or other instrument, foreelosur
trustee sale or otherwise, including any mortgagee or
Developer at foreclosure or who acquires title by de
understood and agreed, in furtherance of the forego
or entity who acquires title to the Air Rights Parce
or deed in lieu of foreclosure or otherwise shall
Payments).
7. Public Records. To the extent expressly
Chapter 119, Florida Statutes, as ame
proprietary or confidential information
pursuant to this Exhibit H, shall be s
to the extent Profit Participation Sta
City by Chapter 119, Florida Stat
immediate notice to the Develo
Participation Statements to e
exempt from disclosure are
8. GAAP. Accounting ter
meaning given them b
ny such
t is further
articipation
) shall be the
shall in no event
upon the payment
ing the Final Asset
d for the avoidance of
ement to pay the Profit
inst any successor owner
thside Place, LLC), whether
deed -in -lieu of foreclosure,
er person or entity who is the
d in lieu of foreclosure (it being
, that no mortgagee or other person
or any portion thereof, by foreclosure
e bound to pay the Profit Participation
llowed by the Florida Public Records Act,
ed, neither the Developer nor any exempt,
rovided by the Developer for the City's review
ect to Section 119.0701, Florida Statutes. Further,
ments in the City's possession are requested from the
es, or as otherwise provided by law, the City must give
er and opportunity for the Developer to redact the Profit
ure that public records that are exempt or confidential and
of disclosed except as authorized by law.
s used but not otherwise defined in this Agreement shall have the
GAAP.
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Schedule A
List of Approved and Excluded Fees
Development Fees
Construction Management Fees
Asset Management Fees
Property Management Fees
Market Brokerage Fees
4.0% of Total Project Cost (Hard a ' Soft Costs,
excluding Land Costs).
2.0% of Total Project Hard Co
limited to actual costs an
associated with constructir,n
supervision of the Project).
s (which shall be
expenses directly
management and
2.0% of Agreed Upon P oject Value.
3.0% of Effective oss Income for residential use;
5.0% of Effectiv Gross Income for office or retail
use.
Customary r arket fees; limited to brokerage fees for
leasing a i sale; must be paid to a third party
Brokerage Company unrelated to Developer.
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