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Exhibit C
THE GOLDS I'EIN ENVIRONMENTAL LAW FIRM, P.A. Brownfaelds, Transactions, Due Diligence, Development, Permitting, Cleanups & Compliance 2100 Ponce de Leon Boulevard, Suite 710 Coral Gables, Florida 33134 Telephone: (305) 777-1680 www.goldsteinenvlaw.com Michael R. Goldstein, Esq. Direct Dial: (305) 777-1682 Email: mgoldstein@goldsteinenvlaw.com January 25, 2022 Via Email Mr. Arthur Noriega, City Manager Miami Riverside Center (MRC) 444 SW 2nd Ave Miami, FL, 33130 Re: Proposal for Designation of the Property Located at 140 and 142 SW 11t1i Street, Miami, FL 33130 as a Brownfield Area Pursuant to §376.80(2)(a), Florida Statutes Dear Mr. Noriega: On behalf of 191 SW 12 Owner, LLC ("191 SW 12"), we respectfully propose that the City of Miami (the "City") exercise its statutory authority to designate the properties located at 140 and 142 SW 11`h Street, Miami, FL 33130, occupying Folio Numbers 01-0208-050-1010 and 01-4138-051-0380 (collectively, the "Subject Property"), as a Brownfield Area pursuant to Chapter 376.80(2)(a), Florida Statutes ("F.S.").1 Pursuant to the Public Benefit Agreement Regarding Construction of the New Fire Station No. 4 between 191 SW 12 and the City dated April 13, 2020, 191 SW 12 will be investing approximately $3 million in much -needed public park improvements at the Subject Property. These improvements will include, but are not limited to, a new full -court basketball court, dog run areas, pedestrian plaza with water feature, seating areas and tables, lush landscaping making use of existing and new trees and plants, improved and new playground areas, and enhanced power, lighting, water, and drainage at the 1 A legal description and property cards depicting the location of the Subject Property are enclosed herein at Exhibit A. Please note, 191 SW 12 only recently purchased the Subject Property, therefore Miami -Dade County property records still list the sellers of the Subject Property, CS Brickell, LLC and 191 SW 12 St, LLC, as the owners. {00046316.DOCX_ 1 } Mr. Arthur Noriega, City Manager January 25, 2022 Page 2 Subject Property. Once complete, the Subject Property will remain a public park for the use of City residents and visitors. 191 SW 12 proposes this brownfield area designation due to the presence of actual contamination on the Subject Property from historical waste dumping that occurred prior to its use as a public park. The existence of the contamination will require that 191 SW 12 incur significant time and expense for technical, engineering, and legal consultants in order to properly conduct environmental assessment and rehabilitation, as well as to ensure contaminated media is properly handled and monitored during implementation of the planned improvements. The designation has thus become a key part of this ambitious project's success by enabling 191 SW 12 to access certain regulatory and economic incentives to mitigate and manage the risk and expense associated with the discovery of contamination and the necessary response. It is also key to furthering the City's goals for sustainable development and enhanced public spaces in the City's thriving urban core.2 In taking up the designation of a local government -owned brownfield area under Florida's Brownfields Redevelopment Act, a local government must take the following three steps: (i) comply with enumerated notice and public hearings requirements pursuant to Section 376.80(1)(c)4., F.S.; (ii) consider the four factors set forth at Section 376.80(2)(a), F.S.; and (iii) adopt a Resolution pursuant to Section 376.80(1)(c)(2), F.S., following two advertised public hearings. Enclosed at Exhibit B is a Brownfield Area Designation Eligibility Statement that describes the designation process, applies the four factors for consideration at Section 376.80(2)(a), F.S., and explains how the Subject Property meets the definition of a "brownfield site" at Section 376.79(4), F.S. As you evaluate this request and supporting materials, please feel free to contact us with any questions or should further information be required. Thank you. Very truly yours, THE GOLDSTEIN ENVIRONMENTAL LAW FIRM, P.A. Michael R. Goldstein /mrg Enclosures cc: 191 SW 12 Owner, LLC Harry B. James IV, Environmental Compliance Specialist, City of Miami 2 The City previously adopted a resolution designating the Subject Property a brownfield area in 2014. However, the required notice procedures were not followed and the resolution was later deemed to have been improperly adopted, ahaving no force and effect in law. {00046316.DOCX. 1 } Exhibit A {00011414.DOCX. 1 } EXHIBIT A - LEGAL DESCRIPTION Lots 1, 2, 3, 4, 5, 17, 18, 19, and 20, Block 85 South, of CITY OF MIAMI PLAT, according to the Plat thereof, as recorded in Plat Book B, Page 41, of the Public Records of Miami -Dade County, Florida. and Lots 6 and 7, Block 85 South, MIAMI HEIGHTS, according to the Plat thereof, as recorded in Plat Book 5, Page 29, of the Public Records of Miami -Dade County, Florida. fl OFFICE OF THE PROPERTY APPRAISER Summary Report Property Information Folio: 01-0208-050-1010 Property Address: 140 SW 11 ST Miami, FL 33130-1005 Owner CITY OF MIAMI-DEPT OF P&D ASSET MANAGEMENT DIVISION Mailing Address 444 SW 2 AVE STE #325 MIAMI, FL 33130-1910 PA Primary Zone 8002 PARKS & RECREATION Primary Land Use 8066 VACANT GOVERNMENTAL : EXTRA FEA OTHER THAN PARKING Beds / Baths / Half 0/0/0 Floors 0 Living Units 0 Actual Area 0 Sq.Ft Living Area 0 Sq.Ft Adjusted Area 0 Sq.Ft Lot Size 67,500 Sq.Ft Year Built 0 Assessment Information Year 2021 2020 2019 Land Value $23,625,000 $23,625,000 $23,625,000 Building Value $0 $69,707 $66,538 XF Value $68,450 $20,021 $20,021 Market Value $23,693,450 $23,714,728 $23,711,559 Assessed Value $3,419,687 $3,061,954 $2,783,595 Benefits Information Benefit Type 2021 2020 2019 Non- Homestead Cap Assessment Reduction $20,273,763 $20,652,774 $20,927,964 Municipal Exemption $3,419,687 $3,061,954 $2,783,595 Note: Not all benefits are applicable to all Taxable Values (i.e. County, School Board, City, Regional). Short Legal Description CITY OF MIAMI SOUTH PB B-41 LOTS 1-2-3-4-5-17-18-19 & 20 BLK 85 LOT SIZE IRREGULAR Generated On : 8/26/2021 Taxable Value Information 2021 2020 2019 County Exemption Value $3,419,687 $3,061,954 $2,783,595 Taxable Value $0 $0 $0 School Board Exemption Value $23,693,450 $23,714,728 $23,711,559 Taxable Value $0 $0 $0 City Exemption Value $3,419,687 $3,061,954 $2,783,595 Taxable Value $0 $0 $0 Regional Exemption Value $3,419,687 $3,061,954 $2,783,595 Taxable Value $0 $0 $0 Sales Information Previous Sale Price OR Book -Page Qualification Description The Office of the Property Appraiser is continually editing and updating the tax roll. This website may not reflect the most current information on record. The Property Appraiser and Miami -Dade County assumes no liability, see full disclaimer and User Agreement at http://www.miamidade.gov/info/disclaimer.asp Version: fl OFFICE OF THE PROPERTY APPRAISER Summary Report Property Information Folio: 01-4138-051-0380 Property Address: 142 SW 11 ST Miami, FL 33130-1005 i Owner CITY OF MIAMI-DEPT OF P&D ASSET MANAGEMENT DIVISION Mailing Address 444 SW 2 AVE STE #325 MIAMI, FL 33130-1910 PA Primary Zone 8002 PARKS & RECREATION Primary Land Use 8940 MUNICIPAL : MUNICIPAL Beds / Baths / Half 0/0/0 Floors 1 Living Units 0 Actual Area Sq.Ft Living Area Sq.Ft Adjusted Area 780 Sq.Ft Lot Size 15,000 Sq.Ft Year Built 1941 Assessment Information Year 2021 2020 2019 Land Value $975,000 $975,000 $975,000 Building Value $13,335 $13,335 $13,335 XF Value $0 $0 $0 Market Value $988,335 $988,335 $988,335 Assessed Value $988,335 $988,335 $988,335 Benefits Information Benefit Type 2021 2020 2019 Municipal Exemption $988,335 $988,335 $988,335 Note: Not all benefits are applicable to all Taxable Values (i.e. County, School Board, City, Regional). Short Legal Description MIAMI HEIGHTS A SUB PB 5-29 LOT 6&7BLK85 LOT SIZE 100.000 X 150 Generated On : 8/26/2021 Taxable Value Information 2021 2020 2019 County Exemption Value $988,335 $988,335 $988,335 Taxable Value $0 $0 $0 School Board Exemption Value $988,335 $988,335 $988,335 Taxable Value $0 $0 $0 City Exemption Value $988,335 $988,335 $988,335 Taxable Value $0 $0 $0 Regional Exemption Value $988,335 $988,335 $988,335 Taxable Value $0 $0 $0 Sales Information Previous Sale Price' OR Book -Page Qualification Description The Office of the Property Appraiser is continually editing and updating the tax roll. This website may not reflect the most current information on record. The Property Appraiser and Miami -Dade County assumes no liability, see full disclaimer and User Agreement at http://www.miamidade.gov/info/disclaimer.asp Version: Exhibit B {00011414.DOCX. 1 } Brownfield Area Designation Eligibility Statement' Southside Park Green Reuse Area 140 and 142 SW 11th Street, Miami, FL 33130 Folio Numbers 01-0208-050-1010 and 01-4138-051-0380 191 SW 12 Owner, LLC ("191 SW 12") will be improving and rehabilitating two parcels of land owned by the City of Miami (the "City") located at 140 and 142 SW 11th Street, Miami, FL 33130, occupying Folio Numbers 01-0208-050-1010 and 01-4138-051-0380 (the "Subject Property"), to provide an enhanced Southside Park for City residents and visitors in accordance with the Public Benefit Agreement Regardings Construction of the New Fire Station No. 4 between 191 SW 12 and the City dated April 13, 2020 (the "PBA").2 When complete, the improved Southside Park will preserve the First Miami High School historical site and include a new full -court basketball court; two dog run areas; a relocated playground and a new playground; water features with a pedestrian plaza; new landscaping throughout including a new lawn, new plants, relocated trees, and new trees; new hardscape areas to create pedestrian access to the Underline; new seating areas and tables; bike parking; and enhanced power, lighting, water, irrigation, and drainage to facilitate the planned park improvements at no cost to the City (the "Project").3 A paseo through the adjacent, in -progress 1 Southside Park development will also connect the improved Southside Park with Southwest 2nd Avenue. As such, 191 SW 12 respectfully requests that the City consider the applicable designation factors set forth at 5 376.80(2)(a), Florida Statutes ("F.S."), and exercise its statutory authority to designate the Subject Property as a brownfield area.4 In addition, the Subject Property meets the definition of a "brownfield site" pursuant to § 376.79(4), F.S. I. The Brownfield Area Designation Process Brownfield area designations in Florida are governed by the provisions of § 376.80 of Florida's Brownfields Redevelopment Act (the "Act"). The Act creates a two -tiered process, recognizing a distinction between designations that are brought forward by the jurisdictional local government itself and those brought forward by any other non -governmental party.5 Within the self -designation process established for jurisdictional local governments, the Act creates yet another distinction — sites that lie within specified "redevelopment areas" versus those outside such areas. These specified redevelopment areas are enumerated at 5 376.80(2)(b), F.S., and consist of community redevelopment areas, enterprise zones, empowerment zones, closed military bases, and designated Brownfield pilot project areas. The Subject Property does not fall into any of the 5 376.80(2)(b), F.S., specified redevelopment areas and, accordingly, the designation 1 A copy of § 376.80, Florida Statutes is enclosed at Attachment A. 2 See Attachment B for the PBA. A discussion of the Southside Park improvements may be found at Section 12(f). 3 See Attachment C for design plans for the improved Southside Park. 4 The City previously adopted Resolution No. R-14-0303 designating the Subject Property a brownfield area on July 24, 2014, however the City Attorney determined the resolution was not effective due to a lack of proper notice. This request is made in an effort to correct the ineffective notice from 2014 to allow the Subject Property to be rehabilitated under Florida's Brownfields Program by 191 SW 12. See Attachment D for a memorandum from the City Attorney to the City Clerk dated February 20, 2015, responding to questions on the notice requirements applicable to brownfield area designations proposed by the City and determining the previously adopted resolution has "no force and effect in law." 5 Compare 6 376.80(1)(b)1, Florida Statutes, and § 376.80(1)(b)2, Florida Statutes. {00046312.DOCX. 1 } considerations under 5 376.80(2)(a), F.S. apply. Accordingly, if the City exercises its discretion to designate a brownfield area pursuant to § 376.80(2)(a), F.S., the City must take the following steps: (i) comply with enumerated notice and public hearings requirements pursuant to §376.80(1)(c)4, F.S.; (ii) at a public hearing, "consider" the following four factors: (�) 1. whether the brownfield area warrants economic development and has a reasonable potential for such activities; 2. whether the proposed area to be designated represents a reasonably focused approach and is not overly large in geographic coverage; 3. whether the area has potential to interest the private sector in participating in rehabilitation; and 4. whether the area contains sites or parts of sites suitable for limited recreational open space, cultural, or historical preservation purposes; and adopt a Resolution pursuant to § 376.80(1)(c)2, F.S.. Each of these steps and factors as applied to the Subject Property are discussed in detail in the sections below. II. Application of the Brownfield Area Designation Requirements A. Compliance with Enumerated Notice and Public Hearing Requirements. Florida Statutes 5 376.80(1) (c)4.a. provides that, "[a]t least one of the required public hearings shall be conducted as closely as is reasonably practicable to the area to be designated to provide an opportunity for public input on the size of the area, the objectives for rehabilitation, job opportunities and economic developments anticipated, neighborhood residents' considerations, and other relevant local concerns." Florida Statutes § 376.80(1) (c)4.b. further requires that, "[n]otice of a public hearing must be made in a newspaper of general circulation in the area, must be made in ethnic newspapers or local community bulletins, must be posted in the affected area, and must be announced at a scheduled meeting of the local governing body before the actual public hearing." The City Commission Chambers in which the City Commission typically meets is sufficiently close to the proposed area to be designated and is reasonably practicable given the physical proximio of the Chambers to the su jectptvpery, the disruption to the City Commission's schedule to reconvene at the subjectpropery, the lack of any formal meeting facility with adequate facilities at the subjectpmperty, and the expectation by community members that any subsequent decisions by the City Commission regarding the subjectpropery will occur in Chambers. On behalf of the Ciy, 191 SW 12 will also satij all applicable notice and opportuniy to comment requirements established by g 376.80(1)(c)(4)(b), F.S., as follows: (i) (iz) (iii) (iv) notice will be posted at the Subject Propery; notice will be published in the Miami Herald; notice will be published in a local communiy bulletin; and a virtual communiy meeting will be held using a video and teleconferencingplaform. All notices will contain the following narrative: Representatives for 191 SIV 12 Owner, I.T C will hold a virtual communiy meeting, date to be announced, from 5:30 p.m. to 7:00 p.m. for the purpose of affording interested parties the opportuniy to provide {00046312.DOCX. 1 } 2 comments and suggestions about the potential designation of two parcels of land located at 140 and 142 SW 11 th Street, Miami, FL 33130, occupying Folio Numbers 01-0208-050-1010 and 01-4138-051-0380, as a Brownfield Area. The designation is being made pursuant to Section 376.80, Florida Statutes, of Florida's Brownfield Redevelopment Act, and will involve two public hearings before the Miami City Commission. The virtual community meeting will also address future improvements and rehabilitation activities planned for the site. The virtual community meeting is free and open to all members of the public. Please register at https://bit.ly/Southside or call (305) 640-5300 before the meeting to receive virtual meeting access instructions. For more information regarding the community meeting including directions, the dates of the two public hearings, or to pnvvide comments and suggestions regarding designation, development, or rehabilitation at any time before or after the meeting date, please contact 191 RV l2th's representative, Michael R. Goldstein, who can be reached by telephone at (305) 777-1682, U.S. Mail at The Goldstein Environmental Law Firm, P.A., 2100 Ponce de Leon Blvd, Suite 710, Coral Gables, FL 33134, and/or email at mgoldstein@goldsteinenvlaw.com. Proof of publication and posting will be provided to the City. B. "Consideration" of the Four Statutory Factors. Florida Statutes § 376.80(2)(a) provides that, "[i]f a local government proposes to designate a brownfield area that is outside a community redevelopment area, enterprise zone, empowerment zone, closed military base, or designated brownfield pilot project area, the local government shall provide notice, adopt the resolution, and conduct public hearings pursuant to paragraph (1)(c). At a public hearing to designate the proposed brownfield area, the local government must consider: 1. whether the brownfield area warrants economic development and has a reasonable potential for such activities; 2. whether the proposed area to be designated represents a reasonably focused approach and is not overly large in geographic coverage; 3. whether the area has potential to interest the private sector in participating in rehabilitation; and 4. whether the area contains sites or parts of sites suitable for limited recreational open space, cultural, or historical preservation purposes. In considering the four designation factors established in 5 376.80(2)(a), F.S., the statute does not require the City make a particular fording with respect to any of the four enumerated factors, only that they be "considered."6 The following sections discuss the statutory factors under § 376.80(2)(a), F.S., that the City must consider as applied to the Subject Property: 1. The proposed brownfield area warrants economic development and has a reasonable potential for such activities. The Subject Pmperty is an aging and underutilized municipal asset located at the center of a rapidly transitioning neighborhood undergoing massive redevelopment with higher density residential, retail, commercial, walkability, and live - work options. Redevelopment and rehabilitation of these types of projects through Florida's Brownfields Program has been a 6 Contrast this discretion with the standard imposed on private parties seeking a Brownfield Area designation pursuant to § 376.80(2)(c), F.S. In such cases, a designation request may only be approved where the applicant "establishes" the applicable enumerated criteria: "[fior designation of a brownfield area that is proposed by a person other than the local government, the local government with jurisdiction over the proposed brownfield area shall ... adopt a resolution to designate the brownfield area pursuant to paragraph (1)(c) if, at the public hearing to adopt the resolution, the person establishes all of the following ...." {00046312.DOCX. 1 } 3 proven success in Miami -Dade County and the state of Florida by facilitating sustainable rehabilitation of existing public park land while also addressing environmental concerns. In addition to providing important recreation, conservation, and wellness benefits, parks have a a aridely acknowledged economic benefit, including but not limited to increasing residential property values and making a community more attractive to creation of new businesses and expansion of existing businesses. Numerous studies over a period of decades have conclusively linked the expansion and/or renewal of parks and park systems to key economic metrics. A 2018 article by the National Recreation and Park Association titled, 'Promoting Parks and Recreation's Role in Economic Development" makes this very point by exploring key indicators of economic benefit, enhanced property values as well as attraction, retention, and expansion of businesses.' As the demand for land increases in Florida, encouraging the rehabilitation of existing parks like the Subject Propery is essential and key to the continued growth of the City. Not only does the proposed brownfield area have the reasonable potential for such activities, but the Project will result in significant economic productivity of the area. 191 SWI 12 intends to invest approximately $3 million on park improvements at the Subject Proper which will be spent in part on local labor, contractors, consultants, construction materials, and land and infrastructure improvements. This work will support up to 300 temporary construction jobs over the period of development. The construction workers will spend a portion of their salaries with local merchants who, in turn, will reinvest locally in their respective businesses, as well as the businesses of other local merchants. 2. The proposed area to be designated represents a reasonably focused approach and is not overly large in geographic coverage. The proposed area to be designated represents a carefully focused approach that consists only of the parcels occupied by Southside Park and the First Miami High School that will be subject to rehabilitation and improvement. The City's previous attempt at designation of the Subject Proper as a brownfield area was tied to several other public parks located across the City. In contrast, the area proposed for designation here consists of only the parcels that will be rehabilitated for the Project. Further, as reflected in Table 1 below, approximately 24% of designated brownfield areas in Florida are between 0 and 5 acres in size with the majority of brownfield areas covering even greater areas. The 1.5-acre size of the Subject Proper falls squarely within this range and is comparable to similarly situated brownfield areas in the state. Table 1 - Analysis of Designated Brownfield Areas in Florida by Acreage Range (Based on FDEP Brownfield Area Monthly Status Report Dated April 23, 2021) Size range # of Brownfield Areas within Category % of All Brownfield Areas per Category < 1.0 acre 39 7.43% 1.1 - 5.0 acres 86 16.38% 5.1 -10.0 acres 71 13.52% 10.1 - 50.0 acres 125 23.81% 50.1 -100.0 acres 29 5.52% 100.1 - 500.0 acres 71 13.52% 500.1 - 1,000.0 acres 37 7.05% 1,000.1 - 5,000.0 acres 53 10.10% 5,000.1 - 10,000.0 acres 8 1.52% >10,000.0 acres 6 1.14% Total 525 100.00% 7 The complete National Recreation and Park Association article is available here: https.//www.nrpa.org/siteassets /nrpa-economic-development-report.pd£ {00046312.DOCX. 1 } 4 3. The proposed area has the potential to interest the private sector in participating in rehabilitation. The rehabilitation and park improvements planned for the Project will be performed solely by the private sector at no cost to the City. Specifically, Section 126) of the PBA requires 191 SW 12 to either contribute $3 million to the City for improvements or directly construct improvements at an estimated cost of $$3 million with improvements being in substantial compliance with the concept plans found at Attachment C. Private sector involvement by 191 SW 12 will reduce or eliminate the need for the City to devote its limited resources to repairing and replacing deteriorating engineering controls at the Subject Property while also supporting private sector jobs in the continued assessment, remediation, and construction of improvements at this municipal asset. According, not only does the proposed area have the potential to interest the private sector in participating in the rehabilitation of the Subject Property, but the private sector will be directly funding and implementing the planned improvements to Southside Park for the public's use. 4. The proposed area contains land suitable for limited recreational open space, cultural, and historical preservation purposes. The Subject Proper contains both a public park and a designated historic site, the First Miami High School. Pursuant to section 12(g) of the PBA, the Subject Proper , including Southside Park and the First Miami High School, will remain a public park owned by the City for use by its residents and visitors. According, the proposed area to be designated consists exclusively of land suitable for recreational open space, cultural, and historical preservation purposes. C. Adoption of a Resolution. Florida Statutes § 376.80(1)(c)2 provides that, "[t]he brownfield area designation must be carried out by a resolution adopted by the jurisdictional local government, which includes a map adequate to clearly delineate exactly which parcels are to be included in the brownfield area or alternatively a less -detailed map accompanied by a detailed legal description of the brownfield area. For municipalities, the governing body shall adopt the resolution in accordance with the procedures outlined in s. 166.041, except that the procedures for the public hearings on the proposed resolution must be in the form established in s. 166.041(3)(c)2. For counties, the governing body shall adopt the resolution in accordance with the procedures outlined in s. 125.66, except that the procedures for the public hearings on the proposed resolution shall be in the form established in s. 125.66(4) (b)." With respect to the Subject Property, g 376.80(1)(c)2 of the Act directs municipalities to follow to process set forth at g 166.041(3)(c)2, F.S.. This requires two advertised public hearings with one of the two public hearings held after 5p.m. on a weekday unless the City Commission, by a majority plus one vote, elects to conduct that hearing at another time of day. The first public hearing shall be held at least 7 days after the day the first advertisement is published. The second hearing shall be held at least 10 days after the first hearing and shall be advertised at least 5 days prior to the public hearing. III. Subject Property Meets the Definition of Brownfield Site Section 376.79(4), F.S., defines "brownfield site" to mean ". . . real property, the expansion, redevelopment, or reuse of which may be complicated by actual or perceived environmental contamination." The facts here clearly reflect that the Subject Property falls within the definition of the term "brownfield site" in that actual contamination is present in soil and groundwater associated with the historical use of the area now occupied by the park for waste dumping. Specifically, a 2014 Site Assessment Report ("SAR") prepared by the City and submitted to Miami -Dade County Department of Regulatory and Economic Resources, Division of Environmental Resources Management ("DERM") documented solid waste buried beneath the Subject Property as well as soil contaminants above Soil Cleanup Target Levels established in Rule 62-777, Florida Administrative Code ("F.A.C.") including arsenic, barium, copper, lead, benzo(a)pyrene, polycyclic aromatic hydrocarbons, and dioxins Subsequent groundwater assessment conducted by the City in 2014 documented arsenic and antimony above the Groundwater Cleanup Target Levels established in Rule 62-777, F.A.C. {00046312.DOCX. 1 } 5 The City addressed the soil and groundwater impacts at the Subject Property through groundwater monitoring and the installation of engineering controls to prevent direct exposure to contaminated media. These engineering controls consist of a combination of one foot of clean fill placed above a high -visibility geotextile fabric liner, one foot of clean fill with 2.5 inches of bonded rubber mulch around trees, and impervious surfaces including concrete pavement and asphalt surfaces. However, recent engineering control inspections conducted by the City and reported to DERM have shown the gradual deterioration and erosion of engineering control surfaces.8 The presence of soil and groundwater contamination at the Subject Property significantly complicates the park improvements planned by 191 SW 12 as contaminated soil and groundwater beneath the deteriorating engineering controls must be properly managed and monitored throughout the improvement process. Through the Project, 191 SW 12 will also be constructing new protective engineering controls to replace the existing deteriorated surfaces. The risk associated with construction on a contaminated site is significant but is exactly the type of risk that Florida's Brownfields Program is designed to mitigate. Accordingly, this designation, if approved, will allow 191 SW 12 to access limited but important state -based legal and economic incentives to help underwrite any unanticipated and unbudgeted costs associated with managing the environmental risk. In this sense, the designation will not only play a critical role in the successful improvement of the City's Southside Park, but also in the larger revitalization efforts for this rapidly growing area of the City. Based on all the foregoing, the Subject Property clearly falls within the definition of "brownfield site" as set forth in § 376.79(4), F.S. IV. Conclusion 191 SW 12 has demonstrated that the Subject Property meets the definition of a "brownfield site" and that a brownfield area designation will greatly benefit the City; the City's businesses, taxpayers, and residents; and the project developer by lowering the cost and limiting the considerable legal and regulatory risk associated with cleanup and improvement. Accordingly, on consideration of the four designation factors at 5 376.80(2)(a), F.S., designation of the Subject Property as a Brownfield Area pursuant to 5 376.80(2)(a), F.S., of Florida's Brownfield Redevelopment Act is appropriate. 8 In a comment letter dated May 19, 2021, DERM reiterated its requirement that erosion of engineering controls at the Subject Property be corrected to avoid further enforcement action. {00046312.DOCX. 1 } 6 Attachment A {00011878.DOCX. 1 } Select Year: 2020 v The 2020 Florida Statutes Go Title XXVII I NATURAL RESOURCES; CONSERVATION, RECLAMATION, AND USE Chapter 376 POLLUTANT DISCHARGE PREVENTION AND REMOVAL View Entire Chapter 376.80 Brownfield program administration process.— (1) The following general procedures apply to brownfield designations: (a) The local government with jurisdiction over a proposed brownfield area shall designate such area pursuant to this section. (b) For a brownfield area designation proposed by: 1. The jurisdictional local government, the designation criteria under paragraph (2)(a) apply, except if the local government proposes to designate as a brownfield area a specified redevelopment area as provided in paragraph (2) (b). 2. Any person, other than a governmental entity, including, but not limited to, individuals, corporations, partnerships, limited liability companies, community -based organizations, or not -for -profit corporations, the designation criteria under paragraph (2)(c) apply. (c) Except as otherwise provided, the following provisions apply to all proposed brownfield area designations: 1. Notification to department following adoption. —A local government with jurisdiction over the brownfield area must notify the department, and, if applicable, the local pollution control program under s. 403.182, of its decision to designate a brownfield area for rehabilitation for the purposes of ss. 376.77-376.86. The notification must include a resolution adopted by the local government body. The local government shall notify the department, and, if applicable, the local pollution control program under s. 403.182, of the designation within 30 days after adoption of the resolution. 2. Resolution adoption. —The brownfield area designation must be carried out by a resolution adopted by the jurisdictional local government, which includes a map adequate to clearly delineate exactly which parcels are to be included in the brownfield area or alternatively a less -detailed map accompanied by a detailed legal description of the brownfield area. For municipalities, the governing body shall adopt the resolution in accordance with the procedures outlined in s. 166.041, except that the procedures for the public hearings on the proposed resolution must be in the form established in s. 166.041(3)(c)2. For counties, the governing body shall adopt the resolution in accordance with the procedures outlined in s. 125.66, except that the procedures for the public hearings on the proposed resolution shall be in the form established in s. 125.66(4)(b). 3. Right to be removed from proposed brownfield area. —If a property owner within the area proposed for designation by the local government requests in writing to have his or her property removed from the proposed designation, the local government shall grant the request. 4. Notice and public hearing requirements for designation of a proposed brownfield area outside a redevelopment area or by a nongovernmental entity. Compliance with the following provisions is required before designation of a proposed brownfield area under paragraph (2)(a) or paragraph (2)(c): a. At least one of the required public hearings shall be conducted as closely as is reasonably practicable to the area to be designated to provide an opportunity for public input on the size of the area, the objectives for rehabilitation, job opportunities and economic developments anticipated, neighborhood residents' considerations, and other relevant local concerns. b. Notice of a public hearing must be made in a newspaper of general circulation in the area, must be made in ethnic newspapers or local community bulletins, must be posted in the affected area, and must be announced at a scheduled meeting of the local governing body before the actual public hearing. (2)(a) Local government -proposed brownfield area designation outside specified redevelopment areas. —If a local government proposes to designate a brownfield area that is outside a community redevelopment area, enterprise zone, empowerment zone, closed military base, or designated brownfield pilot project area, the local government shall provide notice, adopt the resolution, and conduct public hearings pursuant to paragraph (1)(c). At a public hearing to designate the proposed brownfield area, the local government must consider: 1. Whether the brownfield area warrants economic development and has a reasonable potential for such activities; 2. Whether the proposed area to be designated represents a reasonably focused approach and is not overly large in geographic coverage; 3. Whether the area has potential to interest the private sector in participating in rehabilitation; and 4. Whether the area contains sites or parts of sites suitable for limited recreational open space, cultural, or historical preservation purposes. (b) Local government -proposed brownfield area designation within specified redevelopment areas. —Paragraph (a) does not apply to a proposed brownfield area if the local government proposes to designate the brownfield area inside a community redevelopment area, enterprise zone, empowerment zone, closed military base, or designated brownfield pilot project area and the local government complies with paragraph (1)(c). (c) Brownfield area designation proposed by persons other than a governmental entity. —For designation of a brownfield area that is proposed by a person other than the local government, the local government with jurisdiction over the proposed brownfield area shall provide notice and adopt a resolution to designate the brownfield area pursuant to paragraph (1)(c) if, at the public hearing to adopt the resolution, the person establishes all of the following: 1. A person who owns or controls a potential brownfield site is requesting the designation and has agreed to rehabilitate and redevelop the brownfield site. 2. The rehabilitation and redevelopment of the proposed brownfield site will result in economic productivity of the area, along with the creation of at least 5 new permanent jobs at the brownfield site that are full-time equivalent positions not associated with the implementation of the brownfield site rehabilitation agreement and that are not associated with redevelopment project demolition or construction activities pursuant to the redevelopment of the proposed brownfield site or area. However, the job creation requirement does not apply to the rehabilitation and redevelopment of a brownfield site that will provide affordable housing as defined in s. 420.0004 or the creation of recreational areas, conservation areas, or parks. 3. The redevelopment of the proposed brownfield site is consistent with the local comprehensive plan and is a permittable use under the applicable local land development regulations. 4. Notice of the proposed rehabilitation of the brownfield area has been provided to neighbors and nearby residents of the proposed area to be designated pursuant to paragraph (1)(c), and the person proposing the area for designation has afforded to those receiving notice the opportunity for comments and suggestions about rehabilitation. Notice pursuant to this subparagraph must be posted in the affected area. 5. The person proposing the area for designation has provided reasonable assurance that he or she has sufficient financial resources to implement and complete the rehabilitation agreement and redevelopment of the brownfield site. (d) Negotiation of brownfield site rehabilitation agreement. —The designation of a brownfield area and the identification of a person responsible for brownfield site rehabilitation simply entitles the identified person to negotiate a brownfield site rehabilitation agreement with the department or approved local pollution control program. (3) When there is a person responsible for brownfield site rehabilitation, the local government must notify the department of the identity of that person. If the agency or person who will be responsible for the coordination changes during the approval process specified in subsections (4), (5), and (6), the department or the affected approved local pollution control program must notify the affected local government when the change occurs. (4) Local governments or persons responsible for rehabilitation and redevelopment of brownfield areas must establish an advisory committee or use an existing advisory committee that has formally expressed its intent to address redevelopment of the specific brownfield area for the purpose of improving public participation and receiving public comments on rehabilitation and redevelopment of the brownfield area, future land use, local employment opportunities, community safety, and environmental justice. Such advisory committee should include residents within or adjacent to the brownfield area, businesses operating within the brownfield area, and others deemed appropriate. The person responsible for brownfield site rehabilitation must notify the advisory committee of the intent to rehabilitate and redevelop the site before executing the brownfield site rehabilitation agreement, and provide the committee with a copy of the draft plan for site rehabilitation which addresses elements required by subsection (5). This includes disclosing potential reuse of the property as well as site rehabilitation activities, if any, to be performed. The advisory committee shall review any proposed redevelopment agreements prepared pursuant to paragraph (5)(i) and provide comments, if appropriate, to the board of the local government with jurisdiction over the brownfield area. The advisory committee must receive a copy of the executed brownfield site rehabilitation agreement. When the person responsible for brownfield site rehabilitation submits a site assessment report or the technical document containing the proposed course of action following site assessment to the department or the local pollution control program for review, the person responsible for brownfield site rehabilitation must hold a meeting or attend a regularly scheduled meeting to inform the advisory committee of the findings and recommendations in the site assessment report or the technical document containing the proposed course of action following site assessment. (5) The person responsible for brownfield site rehabilitation must enter into a brownfield site rehabilitation agreement with the department or an approved local pollution control program if actual contamination exists at the brownfield site. The brownfield site rehabilitation agreement must include: (a) A brownfield site rehabilitation schedule, including milestones for completion of site rehabilitation tasks and submittal of technical reports and rehabilitation plans as agreed upon by the parties to the agreement. (b) A commitment to conduct site rehabilitation activities under the observation of professional engineers or geologists who are registered in accordance with the requirements of chapter 471 or chapter 492, respectively. Submittals provided by the person responsible for brownfield site rehabilitation must be signed and sealed by a professional engineer registered under chapter 471, or a professional geologist registered under chapter 492, certifying that the submittal and associated work comply with the law and rules of the department and those governing the profession. In addition, upon completion of the approved remedial action, the department shall require a professional engineer registered under chapter 471 or a professional geologist registered under chapter 492 to certify that the corrective action was, to the best of his or her knowledge, completed in substantial conformance with the plans and specifications approved by the department. (c) A commitment to conduct site rehabilitation in accordance with department quality assurance rules. (d) A commitment to conduct site rehabilitation consistent with state, federal, and local laws and consistent with the brownfield site contamination cleanup criteria in s. 376.81, including any applicable requirements for risk -based corrective action. (e) Timeframes for the department's review of technical reports and plans submitted in accordance with the agreement. The department shall make every effort to adhere to established agency goals for reasonable timeframes for review of such documents. (f) A commitment to secure site access for the department or approved local pollution control program to all brownfield sites within the eligible brownfield area for activities associated with site rehabilitation. (g) Other provisions that the person responsible for brownfield site rehabilitation and the department agree upon, that are consistent with ss. 376.77-376.86, and that will improve or enhance the brownfield site rehabilitation process. (h) A commitment to consider appropriate pollution prevention measures and to implement those that the person responsible for brownfield site rehabilitation determines are reasonable and cost-effective, taking into account the ultimate use or uses of the brownfield site. Such measures may include improved inventory or production controls and procedures for preventing loss, spills, and leaks of hazardous waste and materials, and include goals for the reduction of releases of toxic materials. (i) Certification that the person responsible for brownfield site rehabilitation has consulted with the local government with jurisdiction over the brownfield area about the proposed redevelopment of the brownfield site, that the local government is in agreement with or approves the proposed redevelopment, and that the proposed redevelopment complies with applicable laws and requirements for such redevelopment. Certification shall be accomplished by referencing or providing a legally recorded or officially approved land use or site plan, a development order or approval, a building permit, or a similar official document issued by the local government that reflects the local government's approval of proposed redevelopment of the brownfield site; providing a copy of the local government resolution designating the brownfield area that contains the proposed redevelopment of the brownfield site; or providing a letter from the local government that describes the proposed redevelopment of the brownfield site and expresses the local government's agreement with or approval of the proposed redevelopment. (6) Any contractor performing site rehabilitation program tasks must demonstrate to the department that the contractor: (a) Meets all certification and license requirements imposed by law; and (b) Will conduct sample collection and analyses pursuant to department rules. (7) During the cleanup process, if the department or local program fails to complete review of a technical document within the timeframe specified in the brownfield site rehabilitation agreement, the person responsible for brownfield site rehabilitation may proceed to the next site rehabilitation task. However, the person responsible for brownfield site rehabilitation does so at its own risk and may be required by the department or local program to complete additional work on a previous task. Exceptions to this subsection include requests for "no further action," "monitoring only proposals," and feasibility studies, which must be approved prior to implementation. (8) If the person responsible for brownfield site rehabilitation fails to comply with the brownfield site rehabilitation agreement, the department shall allow 90 days for the person responsible for brownfield site rehabilitation to return to compliance with the provision at issue or to negotiate a modification to the brownfield site rehabilitation agreement with the department for good cause shown. If an imminent hazard exists, the 90-day grace period shall not apply. If the project is not returned to compliance with the brownfield site rehabilitation agreement and a modification cannot be negotiated, the immunity provisions of s. 376.82 are revoked. (9) The department is specifically authorized and encouraged to enter into delegation agreements with local pollution control programs approved under s. 403.182 to administer the brownfield program within their jurisdictions, thereby maximizing the integration of this process with the other local development processes needed to facilitate redevelopment of a brownfield area. When determining whether a delegation pursuant to this subsection of all or part of the brownfield program to a local pollution control program is appropriate, the department shall consider the following. The local pollution control program must: (a) Have and maintain the administrative organization, staff, and financial and other resources to effectively and efficiently implement and enforce the statutory requirements of the delegated brownfield program; and (b) Provide for the enforcement of the requirements of the delegated brownfield program, and for notice and a right to challenge governmental action, by appropriate administrative and judicial process, which shall be specified in the delegation. The local pollution control program shall not be delegated authority to take action on or to make decisions regarding any brownfield site on land owned by the local government. Any delegation agreement entered into pursuant to this subsection shall contain such terms and conditions necessary to ensure the effective and efficient administration and enforcement of the statutory requirements of the brownfield program as established by the act and the relevant rules and other criteria of the department. (10) Local governments are encouraged to use the full range of economic and tax incentives available to facilitate and promote the rehabilitation of brownfield areas, to help eliminate the public health and environmental hazards, and to promote the creation of jobs and economic development in these previously run-down, blighted, and underutilized areas. (11)(a) The Legislature finds and declares that: 1. Brownfield site rehabilitation and redevelopment can improve the overall health of a community and the quality of life for communities, including for individuals living in such communities. 2. The community health benefits of brownfield site rehabilitation and redevelopment should be better measured in order to achieve the legislative intent as expressed in s. 376.78. 3. There is a need in this state to define and better measure the community health benefits of brownfield site rehabilitation and redevelopment. 4. Funding sources should be established to support efforts by the state and local governments, in collaboration with local health departments, community health providers, and nonprofit organizations, to evaluate the community health benefits of brownfield site rehabilitation and redevelopment. (b) Local governments may and are encouraged to evaluate the community health benefits and effects of brownfield site rehabilitation and redevelopment in connection with brownfield areas located within their jurisdictions. Factors that may be evaluated and monitored before and after brownfield site rehabilitation and redevelopment include, but are not limited to: 1. Health status, disease distribution, and quality of life measures regarding populations living in or around brownfield sites that have been rehabilitated and redeveloped. 2. Access to primary and other health care or health services for persons living in or around brownfield sites that have been rehabilitated and redeveloped. 3. Any new or increased access to open, green, park, or other recreational spaces that provide recreational opportunities for individuals living in or around brownfield sites that have been rehabilitated and redeveloped. 4. Other factors described in rules adopted by the Department of Environmental Protection or the Department of Health, as applicable. (c) The Department of Health may and is encouraged to assist local governments, in collaboration with local health departments, community health providers, and nonprofit organizations, in evaluating the community health benefits of brownfield site rehabilitation and redevelopment. (12) A local government that designates a brownfield area pursuant to this section is not required to use the term "brownfield area" within the name of the brownfield area designated by the local government. History.—s. 4, ch. 97-277; s. 3, ch. 98-75; s. 11, ch. 2000-317; s. 2, ch. 2004-40; s. 44, ch. 2005-2; s. 7, ch. 2006-291; s. 5, ch. 2008- 239; s. 2, ch. 2014-114. Copyright © 1995-2020 The Florida Legislature • Privacy Statement • Contact Us Attachment B {00011878.DOCX. 1 } PUBLIC BENEFIT AGREEMENT REGARDING CONSTRUCTION OF THE NEW FIRE STATION NO. 4 THIS PUBLIC BENEFIT AGREEMENT ("Agreement") is made this [131 day of 2020, between 191 SW 12 Owner LLC, a Delaware limited liability company au orized to transact business in Florida (`Developer"), and the City of Miami, Florida. a municipal corporation and a political subdivision of the State of Florida (the "City") (Developer and the City are together referred to as the "Parties"). WITNESSETH WHEREAS, the City is the owner of property located at 1 [05, 1 [15, 1131, and 1133 SW 2 Avenue in Miami -Dade County. Florida, identified by the Miami -Dade County Property Appraiser (the "Property Appraiser") by Folio Nos. 01-4138-051-0400, 01-4138-051-0410, O1-4138-051- 0390, 01-4138-051-0420. and legally described in Exhibit -,A„ (collectively. the -Existing Fire Station Parcel") on which the City currently operates City of Miami Fire Station No. 4 (the `Existing Fire Station"); and: WHEREAS, the Developer is the contract purchaser of the property located at 191 SW 12 Street in Miatni-Dade County. Florida. identified by the Property Appraiser by Folio No. 01-4138- 051-0430 (the "191 SW 12 Street Parcel"), and legally described in Exhibit'`B"; and WHEREAS, the Developer is the beneficial owner of the 191 SW 12 Street Parcel and will own the 191 SW 12 Street Parcel following site plan approval for the Project and prior to the commencement of construction; and WHEREAS, pursuant to City of Miami Resolution No. R-17-0330 adopted by the City of Miami Commission (the -City Commission"), a true and correct copy of which is attached hereto as Exhibit C and by this reference made a part hereof, the City and Southside Place LLC, a Florida limited liability company ("Original Developer") entered into that certain Public Benefit Agreement Regarding Construction of the New Fire Station No. 4 dated as of February 16, 2018 (the "2018 Public Benefits Agreement""); and WHEREAS, pursuant to the 2018 Public Benefits Agreement the Original Developer agreed to construct the New Fire Station (as hereinafter defined) and. upon completion, to convey the New Fire Station to the City for no compensation, for the creation of separate City and Original Developer parcels and WHEREAS, by executing this Agreement subject expressly to prior review and approval by the City Commission, the 2018 Public Benefits Agreement will at such time be null and void and of no further effect as it will be concurrently replaced and superseded by this Agreement: and WHEREAS, Developer may also elect to acquire all of the right. title and interest of CS Brickell LLC, a Delaware limited liability company, in one or more contracts for the purchase of the properties located at 145 SW 12 Street. 155 SW 12 Street, and 165 SW 12 Street in Miami -Dade County. Florida, identified by the Property Appraiser as Folio Nos. 01-0208-050-1022, 01-0208- 050-1021. and 01-0208-050-1020, as more particularly described in Exhibit D attached hereto and by this reference made a part hereof (collectively, the "12th Street Parcels"); and WHEREAS, the Developer will promptly furnish to the City Manager and the Director of the Department of Real Estate and Asset Management ("DREAM") executed copies of purchase and sale agreements for any of these properties for which it enters into agreements to purchase; and WHEREAS, Developer intends to cause the 191 SW 12 Street Parcel and the Existing Fire Station Parcel (collectively, the "project Site") and, if acquired by Developer, the 12th Street Parcels (collectively, the "Expanded Project Site"'; and the Project Site or Expanded Project Site, as applicable, the "-Block 85 Assemblage") to be developed as part of a mixed use development in substantial accordance with the Project Plans (as hereinafter defined); and WHEREAS, the City owns the First Miami High School, a City -designated historic resource located at 142 SW 11 Street identified by the Property Appraiser as Folio No. 01-4138-051-0380 (the "First Miami High School"), as well as park land located at 140 SW I I Street identified by the Property Appraiser as 01-0208-050-1010 (the "Southside Park"): and WHEREAS, pursuant to (i) that certain City of Miami Resolution No. R-613-18 adopted by the City Commission on July 13, 2017, a true and correct copy of which is attached hereto as Exhibit E and by this reference made a part hereof, and (ii) that certain Resolution No. 18-66 of the Board of County Commissioners of Miami -Dade County (the "County'") adopted on June 5. 2018, a true and correct copy of which is attached hereto as Exhibit F and by this reference made a part hereof, the City and the County authorized the execution of that certain Interlocal Agreement, dated as of August 2, 2018, a true and correct copy of which is attached hereto as Exhibit G and by this reference made a part hereof (the "Interlocal Agreement"): and WHEREAS, pursuant to the Interlocal Agreement, the County's Rapid Transit Zone (the -'RTZ") was expanded to include the Brickell Station Subzone (the "Brickell Station Subzone"). which includes all of the property lying situate in ,Miami -Dade County forming part of Block 85 South of the MIAMI HEIGHTS SUBDIVISION, according to the Plat thereof, as recorded in Plat Book 5, Page 29 of the Public Records of Miami -Dade County, Florida ("Block 85"): and WHEREAS, pursuant to the Interlocal Agreement and Chapter 33C of the County's Code of Ordinances (collectively. the "Development Regulations"), as amended, subsequent to the 2018 Public Benefits Agreement, the County now has exclusive jurisdiction over Block 85 with respect to land use and zoning matters; and WHEREAS, the Brickell Station Subzone is included within a Downtown Regional Metropolitan Urban Center on the County's Comprehensive Development Master Plan (` CDMP") Future Land Use Map (" FLUM"); and WHEREAS. Block 85 is currently underutilized in terms of development rights in that it consists of a park, vacant and underdeveloped lots, and an aging fire station; and WHEREAS, in recent years the Brickell area has become known for its sweeping cityscape, world class architecture, dense population and growing urban environment; and WHEREAS, the Existing Fire Station is no longer adequate to meet the needs of its surrounding community within the City; and WHEREAS, the Existing Fire Station and the other current uses within Block 85 are inconsistent with the goals and vision of the City and County to provide for joint private and public development opportunities, including essential public amenities, retail services, employment centers, housing and institutional attractions in convenient proximity to rapid transit stations, all as more particularly described in the Interlocal Agreement; and WHEREAS, the City has identified a need for the creation ofa new turn -key, approximately 31,708 square foot, world class/ first class. state of the art fire station, with an additional One Hundred Thousand Dollars (S100,000) allowance (part of the Additional NFS Cash Contribution (as hereinafter defined)) for FFE (e.g..kitchen equipment, but will exclude fire -fighting equipment) with a mezzanine level and a new workout area (the "New Fire Station") that shall permit the larger new fire -rescue trucks the City will be obtaining, which New Fire Station shall be constructed for the exclusive use and benefit of the City's Fire Department and in compliance with the Development Regulations. Florida Building Code, the National Fire and Protection Agency, and any and all other laws, rules, or regulations applicable to the terms of this Agreement ("Applicable Laws"); and WHEREAS, consistent with the goals of the Interlocal Agreement and the Development Regulations, the City and Developer have entered into this Agreement for purposes of providing for the redevelopment of Block 85 with a new, state of the art high density, mixed use, transit -oriented urban development providing much needed retail uses and amenities for the Mickel] Station Subzone and surrounding, urban areas (collectively, the -'Project"): and WHEREAS, subject to the terms and conditions of this Agreement, Developer has agreed to (i) construct the New Fire Station at its expense at an estimated cost anticipated to be not less than Eight Million Dollars (S8,000,000) and (ii) make a Two Million and Two Hundred Thousand Dollars (S2,200,000) cash contribution to be implemented by the City as an additional public benefits contribution (the "Additional NFS Cash Contribution"), which Additional NSF- Cash Contribution is anticipated to be expended as follows: (a) one million and one hundred thousand dollars (S 1,100,000) of which it is anticipated shall be allocated for the purchase one (1) ladder truck, one (1) engine truck, two (2) fire -rescue trucks, and two (2) Ford trucks in connection with the operation of the New Fire Station; (b) One Million Dollars ($ 1,OOO,OOO.00) of which it is anticipated shall be allocated to other Fire Department -related expenses; and (c) One Hundred Thousand Dollars (S100,000) of which it is anticipated shall be allocated to the purchase of furnishing, fixtures and equipment (.`FFE") for the New Fire Station; and WHEREAS, as a condition of the approval of the Project, Developer has agreed that the Project will include thirty five (35) designated parking spaces conveyed to the City in fee simple and available for exclusive use by the City in connection with the operation of the New Fire Station and ninety (90) parking spaces available to Miami Parking Authority, at no cost, for park use (the "NFS Parking Spaces"). and WHEREAS, in order to provide for a development of sufficient scale and with sufficient amenities to satisfy the requirements of the Interlocal Agreement, the City has agreed to transfer certain development density rights associated with the First Miami High School and Southside Park (collectively, the "City Property") to the Block 85 Assemblage in exchange for the TDR Payment (as hereinafter defined): and WHEREAS, upon completion of the construction of the New Fire Station and conveyance of the New Fire Station Parcel (as hereinafter defined) to the City, the City shall convey the Existing Fire Station Parcel to Developer or its designee in fee simple; and WHEREAS, the conveyance of the Existing Fire Station Parcel to Developer, or Developers designee, in connection with the construction of the New Fire Station is exempt from the competitive bidding process and other requirements because the Existing Fire Station Parcel is being conveyed to implement projects of a governmental agency or instrumentality: and WHEREAS, the construction of the Project will create certain recurring fiscal benefits for the City's tax base as well as much needed temporary and permanent jobs and housing: and WHEREAS, the City and Developer wish to provide for the authorization for the construction of the Project in accordance with the requirements of Section 33C-1 D of the Miami - Dade County Code of Ordinances (the "Count' Code-) and the CDMP, and WHEREAS, the execution and delivery of this Aureement on the terms and conditions set forth below has been authorized by all requisite action orthe members andlor managers of Developer. NOW THEREFORE, in consideration of the mutual covenants contained herein, it is hereby understood and agreed: Section 1. Recitals; Consideration. The recitals and findings contained in the Preamble or Whereas Clauses to this Section are adopted by reference and incorporated as if fully set forth in this Section. 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: (a) A defined term has the meaning assigned to it; (b) Words in the singular include the plural, and words in 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 terns 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 Developer, as all parties are drafters of this Agreement; and (11 The recitals are true and correct and are incorporated into and made a part of this Agreement. The attached exhibits shall be deemed adopted and incorporated into the Agreement; provided however, that this Agreement shall be deemed to control in the event of a conflict between the attachments and this Agreement. Section 3. Definitions. Capitalized teams shall have the meaning as set forth in this Agreement. "County" means Miarni-Dade County, a political subdivision of the State of Florida. "Development Permit(s)" includes any building permit, zoning permit, subdivision approval, rezoning, certification, special exception, variance, or any other official action of local government having the effect of permitting the development of land. "Final Site Platt Approval" shall mean the final (non -appealable) approval of site plans for the Block 85 Assemblage, substantially in compliance with the Project Plans and the Development Regulations. "NFS and Park improvement Activities" means Developer's construction of the New Fire Station and the improvements to Southside Park pursuant Section 12(f) hereof. "TCO" shall mean a Temporary Certificate of Occupancy issued by the Miami -Dade County Department or Regulatory and Economic Resources Department. Section 4. Purposes. The Parties have entered into this Agreement for purposes of setting forth their agreements with respect to: (a) the terms and conditions of the agreements between the City and Developer with respect to the construction of the New Fire Station and the NFS Parking Spaces for the City and the exchange of the Existing Fire Station Parcel for the New Fire Station, (b) the release of the New Fire Station Parcel from the operation and effect of any ground lease and any mortgages placed upon the privately owned Block 85 Assemblage in connection with the construction of the Project, (c) the easements, covenants, conditions and restrictions which will govern the Project which shall be provided for in the Shared Facilities Agreement, (d) certain additional public benefits to be provided by Developer to the City, including without limitation, the payment of the Additional NFS Cash Contribution and agreements to undertake other construction obligations and exercise commercially reasonable efforts to create additional business and employment opportunities for residents of the City of Miami and local businesses involved in the construction industry and (e) the commitments of the City to Developer and the Project, including obligations with respect to the transfer of development density rights associated with the City Property and the cooperation of the City with Developer in connection with Developer's execution of its development plan, all in consideration or the agreements and undertakings of Developer contained in this Agreement. in the event that Developer does not obtain ownership and control of the 191 SW 12 Street Parcel within eighteen (18 ) months of the Effective Date (subject in all events to such extension of such time as may be required by reason of Force Majeure (as defined below)), this Agreement shall be automatically terminated. Section 5. Affected Property, This Agreement is not intended to affect any property other than the land within Block 85. Section 5. Term of Agreement, Effective Date and Binding Effect. This Agreement shall become effective on the date on which the City Manager executes this Agreement with prior approval from the City Commission (the "Effective Date„) and shall constitute a covenant running with the land that shall be binding upon, and inure to the benefit of, Developer, the City and their respective successors, assigns, affiliates and subsidiaries (if any), heirs, legal representatives. and personal representatives. This Agreement shall have a tern ot'thirty (30) years from the Effective Date (the '`Term'') and shall be recorded in the public records of 1vliami-Dade County by Developer and filed with the City Clerk. The Developer shall furnish to the City a certified copy of the recorded Agreement within twenty (20) days of it being recorded. The Term of this Agreement may only be amended or released by the written agreement of the Parties, provided that it the Project, or any portion thereof, is submitted to condominium ownership pursuant to the Florida Condominium Act, Chapter 718, Florida Statutes (2019), then the condominium association(s) in which the owners of condominium units shall be members shall be the proper party or parties to execute any such amendment or release with respect to any portion of the Project submitted to condominium ownership. Any amendment or release must be in a form reasonably acceptable to the City and reasonably approved as to legal form by the City Attorney. Notwithstanding anything to the contrary contained in this Section 6, in the event that the Project or any portion thereof is submitted to a condominium farm of ownership, the City shall be responsible solely for payment of the City Operating Expenses (as defined herein) and the City shall have no obligation to pay any assessments or contribute any costs other than the City Operating Expenses. Section 7. Site Plan. The Project Site shall be developed substantially in compliance with plans, including, specifically, conceptual plans prepared by SHoP Architects PC, attached hereto as Exhibit H. The foregoing plans shall be collectively referred to in this Agreement as the -Proiect Plans- and are described in detail by plans on file with the City Clerk and are deemed to be incorporated by reference. "Substantially in compliance," for purposes of this Agreement, shall be determined by the County Planning and Zoning Director. or designee, in accordance with Section 33-310. I .A.I of the County Code. Section 8. Zoning Permitted Development Uses and Building, Intensities. The parties acknowledge that Block 85 is located within the Miami -Dade County Rapid Transit Zone, specifically the Brickell Station Subzone. and the City has agreed, for purposes and in the context ofthis Agreement, to grant the County exclusive [and use, zoning, alcohol beverage law, and building permitting authority with respect to the Project in accordance with the terms and conditions of the Interlocal Agreement and the Development Regulations. Accordingly. Developer shall be permitted to construct up to 500 multifamily residential units, per acre of land. Without limiting the generality of the foregoing, by virtue of its execution of the Interlocal Agreement, the City has determined, to the best of its present knowledge, information and belief, that the uses, intensities, and densities of development permitted by the Development Regulations are consistent with the City's Charter, Comprehensive Plan, and Zoning Ordinance. Section 9. Future Development. Future development of the Block 85 Assemblage shall be permitted subject only to compliance with the requirements of the Development Regulations. The criteria to be used by the County in determining whether future development shall be approved shall be consistency with the CDMP, this Agreement and the Development Regulations, and the CDMP. this Agreement, and the Development Regulations shall govern development of the Project for the duration of this Agreement. Any modifications to the Project Plans or this Agreement shall be approved in accordance with the Development Regulations. The City shall support and cooperate with Developer in securing development approvals from the County pursuant to Section 33C-10 of the County Code to effectuate the terns of this Agreement and the transfer of development density through a Covenant in Lieu of Unity of Title. 6 Section 1D. Construction of New Fire Station Parcel and Mixed -Use Project, and Exchange of Properties. The provisions of this Section 10 shall govern the obligations of the Parties in connection with the construction of the New Fire Station and the exchange of the Existing Fire Station Parcel for the New Fire Station Parcel. (a) Construction of New Fire Station and Parkins~ Garage. ( I ) Developer shall construct the New Fire Station in accordance with the Approved NFS Plans (as hereinafter defined) and. except as otherwise expressly provided herein, at Developer's sole cost and expense, estimated at approximately Eight Million Dollars (S8,000,000). Notwithstanding anything to the contrary contained herein, the City shall be solely responsible for payment to the Developer of any increases in the costs of construction for the New Fire Station that result from any (A) Proposed Plan Changes (as hereinafter defined) to the Approved NFS Plans requested by the City. provided that (i) the amount due from the City in connection with any Proposed Plan Changes shall not exceed the total actual costs charged to the Developer by the general contractor and (ii) the general contractor shall not be permitted to charge greater than market value for such Proposed Plan Changes or (B) other acts or omissions of the City as owner, including without limitation. any delays by the City in its approval of items that require the City's approval as owner. (2) Developer shall cause final plans and specifications for the New Fire Station to be developed based on the Project Plans, or as otherwise mutually agreed to by the Parties. The final plans for the New Fire Station shall be subject to the City's prior review and approval. such approval not to be unreasonably withheld. conditioned or delayed. Once such final plans have been approved, the City and Developer shall each execute a certificate confirining the approval of such final plans (the "Approved NFS Plans""). (3) Developer shall make the Additional NFS Cash Contribution. to be implemented by the City. which Additional NSF- Cash Contribution is anticipated to be expended as follows: (a) One Million and One Hundred Thousand Dollars ($1, l 00,000) of which it is anticipated shall be allocated for the purchase one (1) ladder truck, one (I) engine trick, two (2) lire -rescue trucks. and two (2) Ford trucks in connection with the operation of the New Fire Station; (b) One Million Dollars (S 1,000,000) of which it is anticipated shall be allocated to other Fire Department -related expenses; and (c) One Hundred Thousand Dollars (S100,000) of which it is anticipated shall be allocated to the purchase of furnishing, fixtures and equipment ("FFE") for the New Fire Station. The City's Fire Department shall have absolute discretion regarding the ultimate allocation of the Additional NFS Cash Contribution, (b) Parking Garage. 7 (1) The parking garage for the Project (the "Parking Garage") shall be constructed by Developer at its sole cost and expense in substantial accordance with the Approved Parking Garage Plans (as hereinafter defined). The final plans for the NFS Parking Spaces shall be subject to the City's prior review and approval. (2) The Parking Garage will include one hundred twenty-five (125) parking spaces, the previously defined and described NFS Parking Spaces, available .for exclusive use by the City in connection with the operation of the New Fire Station and for park use, (3) Developer shall cause final plans and specifications for the NFS Parking Spaces to be developed based on the Project Plans, or as otherwise mutually agreed to by the Parties. The final plans for the NFS Parking Spaces shall be subject to the City's prior review and approval, such approval not to be unreasonably withheld, conditioned or delayed; providing, however, that this will not preclude safety or design comments andior comments dealing with the Applicable Laws and Development Regulations. Once such final plans have been approved. the City and Developer shall each execute a certificate confirming the approval of such final plans (the "Approved Parking Garage Plans"). (c) Proposed Changes. Any material changes, modifications. amendments or substitutions to the Approved NFS Plans or Approved Parking Garage Plans ("Proposed Plan Changes'") may be made from time to time by written mutual agreement of the parties. Without limiting the generality of the foregoing, the City shall not unreasonably withhold, delay or condition its consent to any Proposed Plan Changes requested by Developer providing, however, that this will not preclude safety or design comments and or comments dealing with the Applicable Laws. Notwithstanding anything to the contrary contained herein, design changes expressly required for compliance with the Development Regulations and Applicable Laws shall not require the City's approval and Developer shall be permitted to make such changes to the extent that they achieve compliance but not beyond that without the City's consent. (d) Commencement of Construction. No later than the date that is eighteen months (18) from the date of Final Site Plan Approval, the Developer shall commence construction of the New Fire Station and shall complete construction of the New Fire Station within thirty-six (36) months of commencement of construction, subject only to Force Majeure. as further defined in Section 44. A TCO for the mixed -use tower (excluding the Parking Garage) shall not be issued prior to the issuance of the TCO for the New Fire Station. Construction shall comply with all Development Regulations and Applicable Laws, rules and regulations required to be complied with as part of the process of building permit issuance. Upon the issuance of a building permit for the New Fire Station, the City shall no lonfger have access to the current parking area located at 1 133 SW 2 Avenue identified by County Folio No. 01-4138-05I-0420 for the Existing Fire Station. The Developer shall provide at its own cost and expense for nearby alternative temporary parking for the Existing Fire Station until delivery of the New Fire Station and the NFS Parking Spaces. (e) Temporary Staging and Parking Areas. During construction, the City shall make a portion of Southside Park, as City determines in its sole but reasonable discretion. available for temporary 8 parking and staging for construction activities associated with the Project as a whole. At any tirne during which Developer requires access and use of Southside Park and there are no on -going NFS and Park Improvement Activities being performed by Developer. such access and use of Southside Park for parking and staging shall (a) be subject to a payment of Ten Thousand Dollars (S 10,000) per month and (b) not exceed eighteen (18) months unless Developer is diligently constructing the Project in good faith, in which case such use shall not exceed forty-two (42) months unless otherwise agreed to. in writing, by the City Manager. This includes providing: (i) alternate parking spaces for City employees of the Existing Fire Station, (ii) parking for contractors, subcontractors and their employees, and (iii) space for staging and storage of construction materials and equipment, Notwithstanding the foregoing. the calculation of the eighteen (18) months described above shall be tolled and the S10,000 per month payment shall not be required during any period in which NFS and Park Improvement Activities are on -going. Developer agrees to preserve and maintain public access to. and use of, both the playground and the grounds surrounding the First Miami High School portions of Southside Park throughout the duration of the construction of the Project provided, however, that Developer shall have the right to close such portions of Southside Park as may be necessary to facilitate construction of the Project and'or- the improvements to Southside Park pursuant to Section 12(f) hereof. The temporary staging and parking areas shall be retained until the completion of the Project. and Developer shall not be required to terminate its use of the same until a reasonable time has passed following the issuance of such TCO or TCOs as may be required for the occupancy of the entire Project. The Developer shall maintain the temporary parking and staging area in a safe and clean condition during the use specified herein and shall further be responsible to restore and return Southside Park to a condition that is better than or equal to the original condition prior to Developer's use. (f) New Fire Station Permitting Fees. The Developer shall be 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 New 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 Developer shall also be responsible for all other permitting, m.un.icipal or governmental fees related to construction of the interior finishes and interior build -out and occupancy of the New Fire Station. The foregoing fees shall not be included in the Developer's cost to construct the New Fire Station and the NFS Parking Spaces. (g) Water and Sewer Connection Charges and Utilities. The Developer 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. (h) Rights of Access and Inspection. Developer shall have the right to enter upon and inspect the Existing Fire Station Parcel and otherwise conduct such tests and investigations as Developer deems necessary in connection with the development of the Existing Fire Station Parcel. The foregoing shall include, without limitation, water and soil sampling and other envir-onrnental inspections, obtaining surveys and geotechnical testing. The City shall grant to the Developer a general access easement to enter upon the Existing Fire Station Parcel in order to construct the New Fire Station. The Developer shall have the right to review and inspect title to the Existing Fire Station Parcel in order to determine its status. 9 (i) Delivery of New Fire Station. Developer shall cause possession of the New Fire Station to be delivered, and title to the New Fire Station Parcel to be conveyed, to the City, on or before the date that is not less than thirty (30) days and not more than ninety (90) days after the substantial completion of the New Fire Station (the "Outside NFS Closing Date"). Title to the New Fire Station Parcel shall be conveyed by Developer to the City by Special Warranty Deed, subject only to easements, covenants, conditions and restrictions of record that (a) are common to the Block 85 Assemblage. (b) do not contain any right of reverter, rights of reversion, or otherwise render title to the New Fire Station Parcel uninsurable or unmarketable and (c) shall not interfere with the construction or quiet enjoyment (following the completion of construction of the Project) or operation ofthe New Fire Station. In that regard, the Parties acknowledge and agree that the -`New Fire Station Parcel" shall constitute a vertical subdivision of land which includes the New Fire Station. (j) Conveyance of Existing Fire Station to Developer. The City shall convey the Existing Fire Station Parcel, and deliver possession thereof, to Developer or Developer's designee simultaneously with the conveyance of title to the New Fire Station Parcel, and the delivery of possession thereof. from Developer to the City. Except for those restrictions otherwise specified in this Agreement and the lnterlocal Agreement, as applicable title to the Existing Fire Station Parcel shall be conveyed by the City to Developer by Special Warranty Deed, subject only to easements, covenants, conditions and restrictions of record that (a) are common to the Block 85 Assemblage, (b) do not render title to the Existing Fire Station Parcel uninsurable or unmarketable and (c) shall not interfere with the construction of the Project as contemplated by the Project Plans. (k) Closing Prorations and Adjustments. On the date of the closing of the exchange of the New Fire Station Parcel for the Existing Fire Station Parcel and the City's acceptance of the New Fire Station (the "Closing Date-), (i) Developer shall make a payment to City in an amount equal to the Additional NFS Cash Contribution and (ii) closing expenses shall be allocated between the Parties and such additional prorations and adjustments shall he made between the Parties in accordance with local custom. (1) Shared Facilities Agreement. Developer shall subject, or cause Developer's designee to subject. title to the Block 85 Assemblage to a Shared Facilities Agreement that will govern the rights and responsibilities ofthe Parties vis-a-vis one another as the owners of properties within the Block 85 (the "Shared Facilities Agreement"). At the time of closing,. the City shall execute any and all such additional documents as may be required in order to subject the Existing Fire Station Parcel to the Shared Facilities Agreement. subject to the reasonable review and approval of the City Manager and City Attorney. (m) Indemnity. The Developer shall indemnify, defend (at its own cost and expense). and hold harmless the City and its departments, agencies. instrumentalities, officials and employees (collectively referred to as "Indemnitees"). and each of them from and against all loss, costs, penalties, fines, damages, claims, expenses (including reasonable attorneys' fees) or liabilities (collectively referred to as "Liabilities") by reason of atty 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 goods, design, labor-. construction. materials, equipment, supplies services, or any performance or non-performance as contemplated by this Agreement (whether active or passive) of the Developer or its employees. contractors or subcontractors, consultants or other authorized agents and representatives of the Developer (collectively referred to as the "Indentnitor Parties") or which is caused, in whole or in part, by any 10 act, omission. default or negligence (whether active or passive or in strict liability) of the Indemnitor Parties. or any of them, or (ii) the failure of the Developer to comply materially with any of the requirements herein, or the failure of the Developer to conform to Applicable Laws, statutes, ordinances, or other regulations or requirements of any governrnental authority, local, federal or state, in connection with the performance or approval of this Agreement, or (iii) claims for fees or commissions by any real estate sales persons. brokers or agents, lawyers, architects. landscape architects. engineers, mappers, surveyors, contractors, subcontractors, laborers, suppliers, material persons. lobbyists or any other person or entity retained or hired by the Developer relative to this Project, or (iv) Third Party Claims and Defenses under Section 36 herein. The Developer expressly agrees to indemnify, defend and hold harmless the Indemnitees, or any of theta, from and against all liabilities which may be asserted by any employee or former employee of the Developer, or any of its contractors or subcontractors, as provided above, for which the Developer's liability to such employee or former employee would otherwise be limited to payments under the states Workers' Compensation. Occupational Health and Safety Act, or similar laws, or (v) Third Party Claims as provided in Section 36 of this Agreement. The Developer 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 Applicable Laws, law, ordinance. order. rule, regulation, condition, or requirement. related directly to the Developer's negligent performance under this Agreement, compliance with which is required by this Agreement of the Developer.!Indemnitor, and (ii) any and ail claims, and/or suits for labor, equipment, supplies, and materiais furnished by the Developer or utilized in the performance of this Agreement or otherwise. in the event that any third -party asserts a claim against the Developer and/or- the Indemnitees for which the Developer is defending the Indemnitees relating to the services provided. the Developer 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, The Developer's obligations to indemnify, defend and hold harmless the Indemmnitees shall survive the termination or expiration of this Agreement, The Developer 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 the Developer throughout the duration of this Agreement and that this provision shall survive the termination of this Agreement. The Developer further understands that its contractors or subcontractors shall provide the City with the very same insurance requirements as those the Developer shall provide the City. The City and the Developer are not joint ventures. associates, partners or affiliates but rather are each independent and distinct from one another. Any debts, defaults, promises to pay moneys, or other commitments of the Developer rest solely with the Developer and are not imputable to the City. (n) Insurance. The Developer shall cause its general contractor and subcontractors to obtain and maintain in force for the tetra of this Agreement, adequate insurance coverage deemed acceptable by the Developer. The City's requirements for insurance are attached as Exhibit I hereto. Developer shall maintain such insurance coverages as are specified on this Exhibit and they will be required as specified throughout the term of this Agreement. (o) Cooperation. Notwithstanding any contrary term or provision contained herein, the City agrees to use its reasonable good faith efforts to cooperate with Developer to implement the provisions of this Agreement, including without limitation this Section 10 and. Section 12. in the most tax -efficient manner possible in accordance with Applicable Laws, so long as the City's tax revenue in connection therewith is not diminished or otherwise negatively affected. Such cooperation may include (i) restructuring legal or beneficial ownership of the Existing, Fire Station Parcel, the New Fire Station Parcel, or the New Fire Station via a ground lease, land trust. partnership and/or other legal structure as Developer may request and the City shall consider and shall not unreasonably refuse its approval, (ii) executing such customary and standard documents that may be reasonably requested by a prospective lender For purposes of financing Developer's acquisition of all or any portion of the Block 85 Assemblage, the construction of the New Fire Station and the other Project improvements and the payment of any other obligations of Developer to City required by this Agreement, including but not limited to such documents as Developer's lender may require for purposes of subordinating the rights of the Parties under this Agreement to a mortgage securing any such financing, provided that in no event shall any such subordination agreement require the City to transfer any development rights or property nor may it ever encumber the City's title to any property it owns unless it receives the public benefits and other consideration provided for in this Agreement, in a manner solely decided, or denied, as applicable in the sole and absolute discretion of the City Commission, (iii) agreeing to make consistent reporting with respect to the agreed upon characterization of the conveyance of the New Fire Station and the New Fire Station Parcel, as well as the conveyance of the Existing Fire Station and (iv) agreeing to modify certain aspects of the transactions contemplated herein to maintain compliance with all applicable tax rules, or if pursuant to the reasonable request of Developer, so long as such cooperative efforts: (1) do not materially adversely affect or impede the performance of the obligations of the Parties hereunder; (2) do not reduce or diminish the tax revenue or other revenues otherwise due to the City; and (3) are acceptable in form and substance to the City Attorney and City Manager in their reasonable discretion. Section 11.. New Fire Station Operation. The Parties hereby agree upon the following with respect to the operation of the New Fire Station: (a) Environmental Rentediation Subject to the limitations provided for in Section 768.28, Florida Statutes, it is agreed to by Developer and the City that once and if the presence of any hazardous materials or waste on the Existing Fire Station Parcel is confirmed and notice is provided to the City of such, the City and/or Developer shall pursue remediation. City further agrees, subject to Applicable Laws and at no cost to the City, to cooperate with Developer in connection with all reasonable requests in connection with such remediation. If applicable, the City shall use reasonable efforts to serve as a co -applicant and reasonably review and consider the Developer's application to designate all or a portion of the Block 85 Assemblage as a brownfield. Nothing herein shall limit Developer's ability to seek recovery from City as expressly permitted pursuant to law providing that the parties understand and agree that this Agreement, including this Section, does not grant, establish, confer or provide the Developer with any rights or remedies not already expressly provided by the laws of the State of Florida. The City expressly reserves sovereign itrununity as provided by law (subject to Section 768.28, Florida Statutes (2019)), and all other defenses, immunities, claims. actions and privileges as are provided by law. (h) Occupancy. Upon receipt of the TCO and the City's acceptance of the New Fire Station, the City shall be permitted to take possession of the New Fire Station. pursuant to the tertns of and conditions of Sections 10(i) and 10(j). (c) Nuisance. Consistent with the requirements of Section 316.271, Florida Statutes, the New Fire Station's service vehicle sirens, whistles and 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 12 siren, whistle, or bell when reasonably necessary to warn pedestrians and other drivers of the approach thereof." If the New Fire Station's 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 City of Miami Department of Fire -Rescue (the 'T ire Department") shall adopt and enforce policies that minimize the noise caused by the New Fire Station and the vehicles used by the New Fire Station. (d) Utilities and Operating Expenses. Consistent with the requirements ofthe Shared Facilities Agreement, the City shall he responsible for payment of expenses directly serving and solely attributable to the New Fire Station, including but not limited to (i) utility expenses such as electricity, cable, water and sewer service. maintenance costs and other operational expenses, and (ii) the Lost of other services such as solid waste removal and any costs of shared facilities within the Project solely allocable to the New Fire Station (collectively, the "City operating Expenses"). Developer shall be responsible for installation of separate meters and/or connections for electrical, cable, water, and sewer utilities to service the New Fire Station. (e) Taxes. The Fire Department's use and ownership of the New 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 Property Appraiser incorrectly assesses ad -valorem taxes against the New Fire Station or the New Fire Station Parcel, Developer will reasonably cooperate with the City's efforts to ensure that no taxes are assessed against the New Fire Station or the New Fire Station Parcel. Developer and the City shall each be responsible for the payment of any taxes for which its property is assessed after both closings have been completed, each as to their own respective portions of the Block 85 Assemblage only (the City portion should be exempt from taxes) and the Shared Facilities Agreement has been entered into by the Parties. Until such time, Developer shall be responsible for the payment of any governmental taxes, assessments, charges, impositions and encumbrances assessed against the New Fire Station Parcel. Section 1.2. Public Benefits. In consideration of the agreements of the City contained herein and, subject to the City's payment and performance of its obligations hereunder and the issuance of all of the required Development Permits, Developer shall construct the New Fire Station and perform the balance of its obligations under this Agreement, including the payment of the Additional NFS Cash Contribution. In addition, Developer shall comply with the following requirements as public benefits to the City. (a) Transfer of Development Rights. Developer agrees that it shall make a one-time payment to the City (the "TDR Payment") which funds the City shall apply for the exclusive and restricted use of promoting and developing affordable housing and park projects (including land acquisition) within District 3 in an amount equal to Nine Million Dollars (S9,000,000) (the "TDR Payment Amount") upon the date as of which (i) the County shall have accepted and recorded the Covenant in Lieu of Uniry of Title for Block 85 (the -`Covenant in Lieu") and (ii) the City shall have transferred development density rights of not less than five hundred (500) residential units and no more than nine hundred forty-seven (947) units from the City Property to the Block 85 Assemblage in accordance with the applicable requirements of the Development Regulations. The aforementioned Covenant in Lieu and transfer of density should occur prior to Final Site Plan Approval and payment of the TDR Payment Amount is due within fifteen (15) days of the date as of which the County shall have issued Final Site Plan Approval for the Project. In the event that the City has executed the Covenant in Lieu and site plan approval for the Project has not been achieved 13 by December 31, 2020, the Developer shall make a one-time good faith initial payment of Two Million Dollars (S2,000,000) towards the TDR Payment and thereafter only Seven Million ❑ollars (S7,O00,000) shall be due at the time of Final Site flan Approval. The foregoing good faith deposit may be waived by a majority vote of the Miami City Commission. but only if the ❑istrict 3 Commissioner agrees to sponsor and place the request for waiver on the agenda of the Miami City Commission meeting at which any such vote is to be taken. Developer further agrees that the TDR Payment Amount shall be increased by S15.000 for each additional individual residential density unit in excess of 500 residential units transferred from the City Property to the Block 85 Assemblage by City at Developer's request. For example. 510 residential units would require an additional payment of $150.000. (b) Park Impact Fee Payment Tinun Developer shall pay the City's Parks and Recreation Impact Fee" amounting to Four Million ❑ne Hundred Thirty -Three Thousand One Hundred Ninety Dollars (S4,133,190) or such modified amount based on the calculation set forth below, but in no event less than Four Million Dollars (S4,000,000), to the City for the exclusive and restricted use of promoting and developing parks and recreational facilities (including land acquisition) throughout District 3 within fifteen ([ 5) clays of the date as of which the County shall have issued Final Site Plan Approval for the Project. For purposes of this Agreement, the Parks and Recreation Impact Fee shall be calculated by multiplying the number of residential units within the Project Plans by the City's Parks and Recreation Impact Fee amount, as published in Section 13-12 of the City's Code of Ordinances. as in effect at the time of site plan approval ("Park Impact Fee Payment"). (c) Public Benefit Contribution. Developer agrees that it shall make a one-time payment to the City ("Public Benefit Contribution") in an amount that when added to the TDR Payment Amount and the Park Impact Fee Payment equals Thirteen Million Dollars (S13,000,000) (the "Public Benefit Contribution Amount") within fifteen (15) days of the date as of which the County shall have issued Final Site Plan Approval for the Project, For purposes of clarification, in the event that the sum oldie TDR Payment and the Park Impact Fee is greater than or equal to Thirteen Million Dollars (S 13,000,000), then no Public Benefit Contribution or Public Contribution Amount shall be payable pursuant to this section. (d) Arts, Culture and Entertainment Contribution. Developer agrees that it shall make two contributions to the City of Miami for the exclusive and restricted use ofpromoting arts, culture and entertainment throughout District 3. including but not limited to Southside Park and general food distribution within the District. each in an amount equal to Two Hundred and Fifty Thousand Dollars (S250.000) ("Arts, Culture and Entertainment Contribution"), payable to the District 3 Office. The first contribution shall be due fifteen (15) days following the Effective Date of this Agreement. The second contribution shall be duc on June 15, 2020. (e) Streetscape Improvements Contribution. Developer shall either (i) contribute Two Hundred Thousand Dollars (S200,000.00) (the "Streetscape Improvements Contribution Amount") to the City upon Developer's application for Development Permits, or (ii) post a surety bond issued by a Florida surety rated A:V or better per A.M. Best's Key Rating Guide. Latest Edition, or an unconditional and irrevocable letter of credit in the amount of Two Hundred Thousand Dollars (S200,000.00) and construct such public streetscape improvements as specified by the City Manager or Public Works Director to SW 2 Avenue and SW [2 Street, for which the total cost incurred by Developer (including all soft and hard construction costs and fees) shall equal or exceed the Streetscape Improvements Contribution Amount or as otherwise required by the City Code of 14 Ordinances. In the event Developer elects to construct the public streetscape improvements pursuant to clause (ii) of the preceding sentence. Developer shall work with the City to design and construct such improvements. (f) Southside Park Improvements Contribution. Developer at its sole discretion, cost and expense shall either (i) contribute Three Million Dollars (S3.000,000.00) for improvements to Southside Park (the --Southside Park Improvements Contribution Amount") to the City upon Developer's application for Development Permits, or (ii) construct improvements estimated at Three Million Dollars (53,000,000) substantially in compliance with the concept plans prepared by SHoP Architects PC, attached hereto as Exhibit J ("Southside Park Improvement Plans-'), subject to review and approval by the City Manager, the City's Parks and Recreation Director, and the District 3 Commissioner. The City shall work with the Developer to allocate the Developer's proven paid Southside Park improvements Contribution Amount to develop the Southside Park Improvement Plans consistent with the intent of the plans. The total cost incurred by Developer (including all soft and hard construction costs and tees) shall equal or exceed the Southside Park Improvements Contribution Amount. In the event that the total costs and expenses incurred by Developer in completing the Southside Park Improvement Plans shall be less than the Southside Park Improvements Contribution Amount. Developer shall make a one-time payment to the City in the amount of the difference between such total costs and expenses incurred and the Southside Park Improvements Contribution Amount for the exclusive and restricted use of promoting and developing affordable housing and park projects within District 3. (g) Southside Park. Southside Park shall remain a public park owned by the City and available for use by its residents and visitors, except that the Developer and the City shall enter into an agreement to allow access. temporary parking and construction staging to allow for the construction of the Project (as required pursuant to Section I0(e) herein) and the Southside Park Improvement Plans. (h) Developer shall exercise commercially reasonable efforts to consult and coordinate with the City's CareerSource South Florida Center located at the Lindsey Hopkins Technical Center at 750 NW 20th Street, 4th Floor, Miami. Florida 33127; the Youth Co -Op. Inc. located at 5040 NW 7th Street, Suite 500, Miami. Florida 33126; and state andior County economic development entities regarding job training and job placement services to the City residents seeking employment opportunities with potential employers which will locate or establish businesses within the Project. Developer agrees to use diligent, good faith efforts to achieve or to cause its general contractor(s) and subcontractors (each. individually, a "Contractor") to use diligent, good faith efforts to achieve, as applicable, the aspirational goals set forth in Section 12(i) of this Agreement. First preference will be given to City residents who have lived within the City limits for one or more years. (i) Developer shall cause each Contractor to exercise commercially reasonable efforts to cause at least twenty-five percent ofthe employees for the Project to be residents of the area comprised of the 33130, 33128 or 33135 zip codes (the "Immediate Vicinity"). If_ despite commercially reasonable efforts, a Contractor shall be unable to procure enough employees from the Immediate Vicinity, Developer shall cause such Contractor to exercise commercially reasonable efforts to cause at least twenty -live percent of the employees for the Project to be residents ofthe Immediate Vicinity or the area comprised by the live (5) zip codes with the highest poverty rates in the City (the "City Targeted Area-). If, despite commercially reasonable efforts, a Contractor shall be unable to procure enough employees from the Immediate Vicinity and the City Targeted Area, Developer shall 15 cause such Contractor to exercise commercially reasonable efforts to cause at least twenty-five percent of the employees for the Project to be residents of the Inunediate Vicinity, the City Targeted Area and any other areas of the City. If, despite commercially reasonable efforts. a Contractor shalt be unable to procure enough employees from the Immediate Vicinity, the City Targeted Area and any other areas of the City. Developer shall cause such Contractor to exercise commercially reasonable efforts to cause at least twenty-five percent of the employees for the Project to be residents of the Immediate Vicinity, the City Targeted Area, any other areas of the City and the area comprised by the five (5) zip codes with the hig,hest poverty rate in the County ("County Targeted Area"). If, despite commercially reasonable efforts, a Contractor shall be unable to procure enough employees from the In7mediate Vicinity. the City Targeted Area, any other areas of the City and the County Targeted Area, Developer shall cause such Contractor to exercise commercially reasonable efforts to cause at least twenty-five percent of the employees for the Project to be residents of the Immediate Vicinity. the City Targeted Area, any other areas of the City, the County Targeted Area and any other area of the County. It: despite commercially reasonable efforts, a Contractor shall be unable to procure enough employees from the Immediate Vicinity, the City Targeted Area, any other areas of the City. the County Targeted Area and any other areas of the County (collectively. the "Hiring Preference Zones"). such Contractor shall be permitted to hire such workers from outside the Hiring Preference Zones as such Contractor shall deem appropriate in the exercise of its sole discretion. Ll) Developer shall cause each Contractor to exercise commercially reasonable effbrts to electronically post job opportunities in established job outreach websites and organizations, including, without limitation. Youth Co -Op. Inc., South Florida Workforce, Florida Department of Economic Opportunity Career Source of South Florida located in Miami, their successors or assigns, and similar programs in order to attract as many eligible minority applicants for such jobs as possible. (k) In connection with the work performed by Developer to construct the Project pursuant to this Agreement, Developer shall cause the Contractor to pay a minimum hourly wage rate of twelve dollars and eighty-three cents (.S 12.83) if health benefits are not provided to employees and eleven dollars and fifty-eight cents (SI 1,58) if health benefits are provided to employees. Commencing January I st. 2022 and for the duration of the Project ("CPI. Escalation Year'), the foregoing hourly rates shall be increased on January 1 st of the applicable calendar year by an amount equal to the percentage increase during the calendar year immediately prior to the CPI Escalation Year in the consumer price index (..Index"), which is the monthly index published by the Bureau of Labor Statistics of the United States Department of Labor as the Consumer Price Index for All Items, Miami -Ft. Lauderdale, Florida, Base Year 1982-84=I00. The Index adjustment to the minimum hourly wage rates shall hereinafter be refelTed to as the "CPI Escalation". The CPI Escalation of the minimum; hourly wage rates for the CPI Escalation Year shall be equal to the minimum hourly wage rates in effect for the calendar year immediately preceding the CPI Escalation Year multiplied by the CPI Percentage (as defined below). The "CPI Percentage" shall equal the fraction (i) whose numerator equals the monthly Index published immediately prior to the CPI Escalation Year (or the nearest reported previous month) and (ii) whose denominator is the same monthly Index published immediately prior to the calendar year that preceded the CPI Escalation Year (or the nearest reported previous month). If the Index is discontinued with no successor Index. the City shall select a commercially reasonable comparable index. The Index adjustment set forth herein shall not result in a reduction of the respective minimum hourly wage rates. 16 (1) Developer shall exercise commercially reasonable efforts to require each Contractor to include the same minimum hourly wage rates in any contracts entered into by such Contractor with its subcontractors for the Project who will stipulate and agree that they will pay the same minimum hourly wage rates. subject to adjustment, as set forth in this section. (m) Developer shall exercise commercially reasonable efforts to provide ten (I0) full -page weekly advertisements in the Diw-ia de /as Americas newspaper or another newspaper of general circulation agreed to by the Parties to inform residents of job opportunities and job fairs prior to construction commencement. This shall be in addition to advertisements done through other job outreach websites, organizations, and efforts. (n) Developer shall exercise commercially reasonable efforts to comply with the following: (1) Seven and one half percent (7.5%) of the total contract amount(s) for professional services agreements for soft costs including, but not limited to, design, engineering. survey. inspection, testing, and legal, shall be awarded to firms certified by the County as Community Business Enterprise (-CBE.), Community Small Business Enterprise ("CSBE"), and Small Business Enterprise ("SSE") firms at the time each contract is signed; and (2) Ten percent (10%) of the total contract amount(s) for contracts for construction and construction -related materials. supplies and fixtures shall be awarded to firms certified by the County as CBE, CSBE, and SBE firms at the time the contract is signed. (o) No later than sixty (60) days prior to issuance of a Development Permit for the construction of vertical improvements for the Project, Developer will designate a firm who shall be CBE, CSBE and SBE certified to monitor Developer's compliance with Sections 12(n)(1) and (2) of this Agreement. (p) Capital Transaction Fee. (1) Upon the Final Capital Event. Developer shall pay to the City the Final Capital Transaction Fee. (2) Until such time as the Final Capital Event occurs, Developer shall pay to the City a Capital Event Fee in connection with each Capital Event. Each Capital Event Fee that Developer pays to the City shall serve as a credit toward the Final Capital Transaction Fee, required pursuant to Section 12(p)(t) above, upon the occurrence of th.e Final Capital Event. (3) The City reserves the right to examine the Developer's books and records in connection with determining any Capital Event Fee and the Final Capital Transaction Fee. The Developer additionally agrees to the applicability of the audit. inspection and resolution of contract dispute provisions set forth in Sections 18-1. 01, 18-102, and 18-105 of the City Code, as amended which are deemed as supplemental provisions to this Section and as being incorporated by reference herein. 17 (4) The City's right to the Final Capital Transaction Fee shall survive from the Effective Date until paid as to the entire Private Development. A covenant or other deed restriction shall be recorded against the Project Site (or Expanded Project Site, as applicable) by Developer to memorialize the terms of this Section, and shall only be released at such time that the Final Capital Event has occun-ed, and the Final Capital Transaction Fee has been paid to the City. (5) As used herein, the following terms shall have the following meanings: a. "Applicable Gross Sale Amount"' shall mean the portion of the Gross Sale Amount attributable solely to the value of Applicable Portion. b. "Applicable Loan Proceeds" shall mean the portion of the Loan. Proceeds attributable solely to the value of the Applicable Portion. c. "Applicable Percentage" shall mean: (a) one pet -cent (19,6) ifthe Final Capital Event occurs within five (5) years of the Effective Date: (b) one and one half percent (I.50%) if the Final Capital Event occurs within years six (6) through ten (10) following the Effective Date., (c) two percent (2.00%) if the Final Capital Event occurs within years eleven (11) through fifteen (15) following the Effective Date; or (d) three percent (3.00" o) ifthe Final Capital Event occurs at any point after year fifteen (15). d. "Applicable Portion" shall mean the percentage of floor area of the Private Development that were associated with the Existing Fire Station Parcel prior to the Effective Date and acquired by Developer upon the conveyance of the Existing Fire Station Parcel. Based on a total floor area of 3,262,500 square feet. the Applicable Portion shall be 49.43% of the Applicable Loan Proceeds or Applicable Gross Sale Amount. e. "Capital Event" shall mean each refinancing of the entire Private Development (excluding any construction loans). "Capital Event Fee" shall mean a fee. if any, equal to one percent (1%) of (i) the Applicable Loan Proceeds less (ii) the Public Benefits Contributions. g. "Final_ Capital Event" shall mean the first Transfer following the Effective Date. h. "Final Capital Transaction Fee" shall mean a fee, it' any, equal to the Applicable Percentage of the (i) Applicable Gross Sale Amount (ii) less the Public Benefits Contributions. i. "Gross Sale Amount" shall mean the gross sale proceeds actually received by the Developer upon the consummation of any Transfer. The Developer shall furnish to the City a copy of a financial statement, a closing statement. a Transfer document, or other similar documentation in connection therewith as shall reasonably demonstrate the Gross Sale Amount. 18 J. "Loan Proceeds" shall mean the net proceeds available to the Developer from any refinancing after deduction of (i) all third party costs and expenses incurred by the Developer in connection with the refinancing transaction. including, without limitation, all fees, costs and expenses unposed by the Developer's lender and any rating agencies, as well as title and survey costs, escrow fees appraisal costs. consultant costs and attorneys' fees and costs and (ii) all amounts required to repay then -existing debt being refinanced. The Developer shall furnish to the City a copy or a closing statement or other similar documentation in connection therewith and shall reasonably demonstrate the amount of the Loan Proceeds. k. "Private Development" shall mean the private mixed -use tower and remaining private development of the Project as shown in the conceptual plans prepared by SHoP Architects PC, included as Exhibit H. The Private Development shall not include the New Fire Station, NFS Parking Spaces, or Southside Park. 1. "Public Benefits Contribution" shall mean the sum of amounts actually received by the City pursuant to and/or in connection with the terms of'this Agreement (including but not limited to the Pubic Benefit Contribution Amount, Arts, Culture and Entertainment Contribution, Streetscape Improvement Contribution. and Southside Park Improvements Contribution). tn. "Transfer" shall mean the sale, assignment, oi- transfer of the entire Private Development to any person other than a Permitted Assignee,. Section 13. Construction of encroachments within the Public Right -of -Wag. To the extent set forth in the Project Plans, the City hereby agrees to expeditiously sign off on all permits to permit encroachments within the public right-of-way as owner of the City -owned property that are the public rights -of -way and Southside Park, including but not limited to Public Works permits. Notwithstanding the requirements of Section 55-14(c) of the Code of the City of Miami, Florida, as amended (the "City Code"). the City agrees to waive any and all claims to payment of a user fee in connection with the construction of such encroachments within the public rights -of -way. Further. this Agreement shall satisfy the requirements of Section 55-I4(d) of the City Code, In consideration for authorizing the construction of'the aforementioned encroachments. Developer further covenants to: (a) Provide an insurance policy. in an amount determined by the City's Risk Manager. naming the City as additional insured for public liability and property damage, The insurance shall remain in effect for as long as the encroachment(s) exist above the City -owned property. Should Developer fail to continuously provide the insurance coverage. the City shall have the right to secure a similar insurance policy in its name and place a special assessment lien against the Developer's abutting private property for the total cost of the premium. (b) Developer shalt hold harmless and indemnify the City, the State or Florida, as applicable, and their respective officials and employees from any claims for damage or loss to property and injury 19 to persons of any nature whatsoever arising out of the use. construction. and development of the Project and from and against any claims which may arise out or the granting of permission for the encroachments or any activity performed under the terms of this Agreement. Section 14. Signage. The Project will be required to comply with all applicable Federal, State. and County signage rules, laws, orders, regulations, statutes. or ordinances. Permitted signage will accomplish the following goals: (i) moving pedestrians and vehicle traffic around Block 85 safely and efficiently: (ii) promoting safe and efficient pedestrian traffic within Block 85: and (iii) properly identifying the Project. The Signage program will include, but is not limited to, the following sign types, some or all of which may incorporate LCD, LED, or similar electronic technology if approved and legally authorized: (i) directional signage: (ii) ground signage; (iii) wall signage; (iv) monument signage, and (v) tower siggnage. The Signage program shall apply to signage visible from public rights -of -way but shall not apply to signage internal to the Project or not otherwise visible from the public right-of-way. Signage shall comply with Applicable Laws and related permitting. Section 15. Parking. Developer intends to establish a uniform valet system to service the Project. Notwithstanding the limitations set forth in Sections 35-305 of the City Code, a maximum of three (3) valet permits may be issued for the operation ofa valet parking ramp on the same side of the block where the permit applicant is the operator of the uniform valet system. Robotic parking within enclosed parking structures shall also be pen-nitted. Section 16. Alcoholic Beverage Sales. Alcoholic beverage sales shall be permitted anywhere within the Project. except for Southside Park, in accordance with any applicable requirements in Chapter 33C of the County Code, and any other Applicable Laws. Section 17. Environmental. The City finds that the Project will confer a significant net improvement upon the publicly accessible tree canopy in the area. The City and Developer agree that Developer will comply with the intent and requirements of Chapter 24 ot'the County Code by preforming tree replacement within the Brickell Station Subzone where necessary. Section 18. Release of Existing Agreements. This Agreement replaces and supersedes the 2018 Public Benefits Agreement. Section 19. Entire Agreement. This Agreement sets forth the entire Agreement and understanding between the Parties with respect to the subject matter contained herein and merges all prior discussions between Developer and the City. Section_20. Compliance with Fire/Life Safety Laws. The Project shall he constructed in accordance with the requirements of all Applicable Laws, ordinances and regulations. including without limitation life safety codes. Section 21. Impact Fees. Developer shall be obligated to pay such impact fees in connection with the construction of the Project (other than the New Fire Station) as may be required by the Chapter 13 of the City Code as in effect as of Effective Date. However, special provisions related to the payment of the Park Impact Fee are described in Section 12(h). This Agreement does not address any County Impact Fees, as applicable.. 20 Section 22. Necessity of Complying with Regulations Relative to Development Permits. The Parties agree that the failure of this Agreement to address a particular permit. condition. fee. tenn license or restriction in effect on the Effective Date shall not relieve the Developer of the necessity of complying with the regulation governing said permitting requirements. conditions, fees, terms. licenses- or restrictions. If state or federal laws are enacted after the execution of this Agreement that are applicable. to and preclude the Parties' compliance with the terms of this Agreement, this Agreement shall be modified or revoked as is necessary to accomplish the spirit of this Agreement and comply with the relevant state or federal laws. Section 23. Cooperation and Time is of the Essence. The Parties agree to cooperate with each other to the fullest 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 Parties agree to cooperate to achieve construction efficiency during construction of the Project, including but not limited to. coordination with respect to access, surveys. borings. environmental compliance, and permitting. The City agrees to use its best efforts to prevent interference with construction of the Project, including temporarily limiting the occupancy of the New Fire Station while construction of the Project is ongoing. The City shall designate a point of contact within the City to assist Developer in achieving its development and construction milestones. Section 24, Notice. All notices, demands and requests which may or are required to be given hereunder shall, except as otherwise expressly provided, be in writing and delivered by personal service or sent by United States Registered or Certified Mail. return receipt requested, postage prepaid, or by overnight express delivery, such as Federal Express, to the Parties at the addresses listed below. Any notice given pursuant to this Agreement shall be deemed given when received. Any actions required to be taken hereunder which fall on Saturday, Sunday, or United States legal holidays shall be deemed to be performed timely when taken on the succeeding day thereafter which shall not be a Saturday, Sunday or legal holiday. To the City: City Manager. City of Miami 3500 Pan American Drive Miami, FL 33133 With a copy to: City Attorney, City of Miarni Attn: Victoria Mendez, City Attorney Miami Riverside Center 444 S.W, 2nd Ave.. 9111 Floor Miami, FL 33130 City of Miami Dept. of Real Estate and Asset Management Attention: Daniel Rotenberg, Director 444 SW 21 Avenue, 3rcl Floor Miami, FL 33130 To Developer: 191 SW 12 Owner LLC 21 With a copy to: c/o JDS Development Group Ann: Michael Stern 104 5th Ave, 9th Floor New York, NY 10011 Bercow Radell Fernandez Larkin & Tapanes, PLLC Attn: Melissa Tapanes Llahues, Esq. 200 S. Biscayne Boulevard, Suite 850 Miami, FL 33131 Kasowitz Benson Torres LLP Attn: Albert Delgado, Esq. 1441 Brickell Avenue. Suite 1420 Miami, FL 33131 Any Party to this Agreement may change its notification address(es) by providing written notification to the other Party pursuant to the terms and conditions of this section. Section 25. Multiple Ownership. In the event of multiple ownership subsequent to the approval of this Agreement, each of the subsequent owners, mortgagees and other successors in interest in and to the Block 85 Assemblage (or any portion thereof, including condominium unit owners) shall be bound by the terns and provisions of this Agreement as covenants that run with the Block 85 Assemblage. Section 26. Common Area Maintenance. A maintenance and indemnification Covenant to run with the land, in a form approved by the City Attorney. shall be required for any non-standard improvements and public amenities located within the public rights -of -way, Said Covenant shall identify a single person or single entity as the responsible party for all such non-standard improvements and public amenities located in the public right-of-way included in the Brickell Station Subzonc. Developer will create prior to the conveyance or any portion of the Block 85 Assemblage, an association or other entity which shall provide for the maintenance of all common areas, private roadways. cross -easements and other amenities common to the Block $5 Assemblage; provided that this requirement shall not apply to any conveyance of the entire Block 85 Assemblage, This Agreement shall not preclude the owner(s) of any portion of the Block 85 Assemblage from maintaining their own buildings or common areas not common to the Block 85 Assemblage outside the control of the association. The instrument creating the association or other entity shall be subject to the reasonable approval of the City Attorney. Section 27. Enforcement. The City, its successors or assigns. and Developer. its successors or assigns, shall have the right to enforce the provisions o[this Agreement. Enforcement shall be by action at law or in equity against any parties or persons violating or attempting to violate any covenants. either to restrain violation or to recover damages or both. Each party shall bear their own respective Attorneys fees. Section 28, Exclusive Venue, Choice of Law, Specific Performance. It is mutually understood and agreed by the Parties that this Agreement shall be governed by the Iaws 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 27 provision hereof shall be instituted only in the courts of the State of Florida or federal courts and venue for any such actions shall exclusively in a court of competent jurisdiction in Miami -Dade County. In addition to any other legal rights. the City and Developer shall each have the right to specific performance of this Agreement in court. Each parry shall bear its own attorney's fees in connection with any litigation, mediation or arbitration arising out of this Agreement. Each party waives any defense, whether asserted by motion or pleading, that the aforementioned courts are an improper or inconvenient venue. Moreover, the parties consent to the personal jurisdiction of the aforementioned courts and irrevocably waive any objections to said jurisdiction. The Parties irrevocably waive any rights to a jury trial. Section 29. Voluntary Compliance. The Parties agree that in the event all or any part of this Agreement is struck down by judicial proceedings or preempted by legislative action, the Parties shall continue to honor the terms and conditions of this Agreement to the extent allowed by law; provided that if the invalidation of such tenns and conditions would have a material adverse effect on the Parties and. or Parties' ability to perform its obligations under this Agreement. as determined in the Parties' reasonable discretion, then the adversely affected Party shall have the right to terminate this Agreement upon sixty (big) calendar days prior written notice to the other Party. Section 30. Events of Default. (a) Developer shall be in default under this Agreement if Developer fails to perform or breaches any term. covenant. or condition of this Agreement which is not cured within thirty (30) days after receipt of written notice from the City specifying the nature of such breach; provided, however, that if such breach cannot reasonably be cured within thirty (30) days, then Developer 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 Developer specifying the nature or 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 conrurnences to cure such breach within said thirty (30) day period and diligently prosecutes such cure to completion, provided, however, such additional cure period shall in no event exceed an additional sixty (60) days. (c) It shall be a default under this Agreement if either party is declared bankrupt by a court of competent jurisdiction. Section 31. Remedies Upon Default. 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 either party may terminate this Agreement prior to the issuance of the Final Site Plan Approval or may seek specific performance ot'this Agreement. and that seeking either termination or specific performance shall not waive any right of such party to also seek monetary damages, injunctive relief. or any other relief . Section 32. Obligations Surviving Termination Hereof. Notwithstanding any contrary term or provision contained herein. in the event of any lawful termination of this Agreement, the following obligations shall survive such termination and continue in Cull force and effect until the 23 expiration of a one (1) year term following the earlier of the effective date of such termination or the expiration of the Tenn: (i) the exclusive venue and choice of law provisions contained herein; (ii) rights of either 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 33. No ©rat Change or Termination. This Agreement and the exhibits and appendices attached 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 enforcernent of the change, modification or discharge is sought. This Agreement cannot be changed or terminated orally. Section 34. Lack of Agency- Relationship. Nothing contained herein shall be construed as establishing an agency relationship between the City and Developer and neither Developer nor its employees. agents, contractors, subsidiaries, divisions, affiliates or guests shall be deemed agents, instrumentalities, employees. or contractors of the City for any purpose hereunder, and the City, its officials, contractors, agents, and employees shall not be deemed contractors, agents, or employees of Developer or its subsidiaries, divisions or affiliates. Section 35. Successor(s), Assigns, and Designees. This Agreement shall be binding upon and inure to the benefit of the Parties, their successors andlor assigns. Developer may not assign any of its obligations hereunder to any person or entity other than a Permitted Assignee (as hereinafter defined) without the prior written approval of the City Manager, in its reasonable discretion, provided that such approval shall not be unreasonably withheld, conditioned or delayed. Developer may assign its rights and obligations under this Agreement to a Permitted Assignee. For purposes hereof, the term ,"Permitted Assignee"' shall mean (i) an affiliate of Developer; and/or (ii) any entity controlled by Developer. Nothing contained herein shall be deemed to be a dedication, conveyance or grant to the public in general nor to any persons or entities except as expressly set forth herein. Section 36. Third Party Defense. The Developer shall, at its own cost and expense. vigorously defend any claims, suits or demands brought against the Developer and/or the City by third parties challenging the Agreement or the Project, or objecting to any aspect thereof, including, without limitation. (i) a consistency challenge pursuant to Section 163.3215, Florida Statutes (2019). (ii) a petition for writ of certiorari, (iii) an action for declaratory judgment, or (iv) any claims for loss, damage, liability, or expense (including reasonable attorneys' fees). The City and Developer shall promptly give the other written notice of any such action, including those that are pending or threatened, and all responses, filings, and pleadings with respect thereto, This shall be among the Developers duties to indemnify, hold harmless and defend the City under Section 10(m) of the Agreement although the City will cooperate with the Developer in assisting the Developer with the Developer's defense of such claims on the City's behalf. 24 Section 37. No Third -Party- Beneficiarv. No persons or entities other than Developer. the City, their heirs, pern-litted successors and assigns. shall have any rights whatsoever under this Agreement. Section 38. Recording. This Agreement shall be recorded in the Public Records of Miami -Dade County, Florida at Developer's expense. A copy of the recorded Agreement shall be provided to the City Clerk and the City Attorney within two (2) weeks of recording. Section 39. Representations; Representatives. Each Party represents to the other that this Agreement has been duly authorized, delivered, and executed by such Party and constitutes the legal. valid. and binding obligation of such Party, enforceable in accordance with its terms. Section 40. No Exclusive Remedies. No remedy or election given by any provision in the Agreement shall be deemed exclusive unless expressly so indicated. Wherever possible, the remedies granted hereunder upon a default of the other Party shall be cumulative and in addition to all other remedies of law or equity arising from such event of default, except where otherwise expressly provided. Section 41. Counterparts. This Agreement may be executed in two (2) or more counterparts. each of which shall constitute an original but all of which. when taken together. shall constitute one and the same agreement. Section 42. Estoppel. The City shall, within thirty (30) days of its receipt of a written request from Developer, provide Developer with a written estoppel certificate duly executed stating (a) to the best of the City's knowledge. whether Developer is in default or violation of this Agreernent and setting forth with specificity the default or violation (if any); (b) that this Agreement is in full force and effect and identifying any amendments to the Agreement as of the date of such certificate; and (c) such other information as may be reasonably requested by Developer or any prospective purchaser or lender. Such estoppel certificate shall be certified to Developer and any prospective purchaser and/or lender, as applicable. The City may charge a modest regulatory fee for processing of each such request. Section 43. Covenant of Good Faith. The Parties affirm, agree and represent that they will employ good faith and utilize fair dealing in the conduct all actions. undertakings and performance under this Agreement. Section 44. Citv's Rights as Sovereign. Notwithstanding any language to the contrary contained in this Agreement, the City retains all of its sovereign prerogatives and rights as a municipal corporation under Florida laws and shall in no way be estopped from withholding or refusing to issue any approvals of applications for building or zoning; from exercising its planning or regulatory duties and authority. and from requiring development under present or future Laws and Ordinances of whatever nature applicable to the design, construction and development of the Project provided for in this Agreement, provided that City's exercise of its sovereign rights shall be in compliance with Applicable Laws and shall not be arbitrary or capricious. For the avoidance of doubt. this Agreement shall not impose any obligation upon the City in its regulatory capacity, nor shall any penalty or default under this Agreement be imposed upon the City for actions undertaken in its regulatory capacity. 25 Section 45. Force Majeure. The Parties shall not be liable to the other nor be deemed to have defaulted hereunder, and shall excuse the other from their respective obligations under this Agreement for any failure or delay in performing. their respective obligations where such failure or delay to perform is caused by a Force Majeure event, which is defined herein as any acts of national security, national emergency, acts of God, war. act or threats of terrorism, domestic government regulations, strikes (other than strikes of Developer's employees). fire or other natural calamity, disorder, civil disobedience, curtailment of transportation facilities or service, or any other occurrence which makes it illegal or impossible for either of the Parties to perform their respective obligations under this Agreement. Neither party shall be entitled to claim Force Majeure for events caused, directly or indirectly, by the claiming party or individuals or entities under its control and Force Majeure is not intended to include any contract dispute between Developer and its contractors. NOW, WHEREOF, the City and Developer have caused this Agreement to be duly executed. [Execution Pages for the City and Developer Follow] 26 ATTEST: Todd B. Han City Clerk APPROVES ASTO LEGAL FORM AND CORRECTNESS: STATE OF ria(a ei )SS t _ ) COUNTY OFtt CITY OF MIAMI, a municipal corporation of the State of Florida hur lgriega V City Manager APPROVED AS TO / I URA CE REQUIREMENTS: , Ann -Marie Sharpe f Risk Management Director The foregoing instrument was acknowledged before me this A day ol-1 2020byflf .140C iej V_ of the City of Miami. Florida who is Persona y known to or ( ) produced a valid driver's license as identification. Notary Public: Sign Name: Print Name: 4.4 `• :%, OFEI.IA /E. PEREZ�p���� y: '6' sk' FISSION # GG 380880 %y -,,p`' MIRES: August 2.2023 v•za;'r4° •` Bonded Trn Nolary Pii64a under item (�' IN WITNESS WHEREOF, these presents have been executed this day of 4020 Witnesses By: 014,41// Print Name: f tff-- `� 1 L/af u T Name: n Title: By: Print Name Q. 191 SW 12 Owner, LLC, a Delaware limited liability corpor n STATE OF )SS COUNTY OF Ick6k ^D2I4C ) By: jai,+. l_ fe+ The foregoing instrument was acknowle ged before me this day of A�2020 by � A LCiute \ ;ft1Gr of 191 SW 12 Owner iC who is Personally known to me or ( /,produced a valid driver'. ` rise as identification. My Commission Expires AI i �) Notary Public: Sign Name: Print Name: eu4 4 [NOTARIAL SEAL] Attachment C {00011878.DOCX. 1 } S 0 HOySE r Attachment D {00011878.DOCX. 1 } EXHIBIT CITY OF MIAMI OFFICE OF THE CITY ATTORNEY MEMORANDUM TO: Todd Hannon, City Clerk FROM: Victoria Mendez, City Attorney DATE: February 20, 2015 RE: Brownfield Property Designation Notice Requirements and Status of Various Properties Previously Designated in 2014 Matter ID No.: 15-297 Two questions have been asked by the administration with regard to the previous Brownfield designations that took place in July 2014: I , What are the notice requirements for designating a property as a Brownfield? 2. What is the status of the various properties designated as Brownfield in July 2014 (in the event the notice was not fully compliant with notice requirements for Brownfield)? The summation of the answer to the first question is that the required notice to designate a Brownfield is prescribed by state law as discussed below. The summation of the answer to the second question is that a defective notice of a Brownfield designation must be redone from the outset. Thus, the designations have no force and effect. Florida Statutes prescribes the notice requirements for a municipality to designate a Brownfield. *** The pertinent subsection of the Florida Statute provides: Resolution adoption. —The Brownfield area designation must be carried out by a resolution adopted by the jurisdictional local government, which includes a map adequate to clearly delineate exactly which parcels are to be included in the Brownfield area or alternatively a less -detailed map accompanied by a detailed legal description of the Brownfield area. For municipalities, the governing body shall adopt the resolution in accordance with the procedures outlined in s. 166.041, except that the procedures for the public hearings on the proposed resolution must be in the form established in s. 166.041(3) (c) 2. 4. Notice and public hearing requirements for designation of a proposed Brownfield area outside a redevelopment area or by a nongovernmental entity. Compliance with the following provisions is required before designation of a proposed Brownfield area under paragraph (2)(a) or paragraph (2)(c): 'Cf. 376.80 (1) (c), Fia. Stat. 14-00566 - Exhibit - City Attorney's Memo 7.115FEB ZS Z: 6 UFO. Vi'cL ' Re: Brownfield Property Designation Notice Requirements and Status of Various Properties Previously Designated in 2014 February 20, 2015 Page 2 a. At least one of the required public hearings shall be conducted as closely as is reasonably practicable to the area to be designated to provide an opportunity for public input on the size of the area, the objectives for rehabilitation, job opportunities and economic developments anticipated, neighborhood residents ' considerations, and other relevant local concerns. b. Notice of a public hearing must be made in a newspaper of general circulation in the area, must be made in ethnic newspapers or local community bulletins, must be posted in the affected area, and must be announced at a scheduled meeting of the local governing body before the actual public hearing. (2)(a) Local government proposed Brownfield area designation outside specified redevelopment areas. —If a local government proposes to designate a Brownfield area that is outside a community redevelopment area, enterprise zone, empowerment zone, closed military base, or designated Brownfield pilot project area, the local government shall provide notice, adopt the resolution, and conduct public hearings pursuant to paragraph (1)(c). At a public hearing to designate the proposed Brownfield area, the local government must consider: *** There are somewhat more relaxed noticing requirements for Brownfield designations which are located in certain areas: The strict notice requirements do not apply to a proposed Brownfield area if the local government proposes to designate the Brownfield area inside a community redevelopment area, enterprise zone, empowerment zone, closed military base, or designated Brownfield pilot project area and the local government complies with paragraph (1)(e).2 To our knowledge, the 2014 designations did not occur in a community redevelopment area, enterprise or empowerment zone, military base or pilot program. See link to relevant Florida Statute: 376.80. Brownfield program administration process The Brownfield designations that occurred in 2014 were defective in the following respects: the properties were not posted as is required by the State Statutes noted above; normally defects in the notice procedure for enacting an ordinance or other legislative measure such as a resolution render the ordinance invalid. The Third District Court of Appeal ruled in invalidating a land development permit to enact certain additional buildings because the notice required by 166.041, Fla. Stat. was not given. Section 376.80 (2) (b), Fla. Stat. Doc. No.: 513852 Re: Brownfield Property Designation Notice Requirements and Status of Various Properties Previously Designated in 2014 February 20, 2015 Page 3 Such notice is clearly mandatory, and constitutes a jurisdictional condition precedent to the activation of the City's power to adopt the ordinance at issue. See Ellison v. City of Fort Lauderdale, 183 So.2d 193 (F1a.1966); City of Fort Pierce v. Davis, 400 So.2d 1242 (Fla. 4th DCA 1981); Skaggs v. City of Key West, 312 So.2d 549 (Fla. 3d DCA 1975); Bal Harbour Village v. State ex rel. Giblin, 299 So.2d 611 (Fla. 3d DCA 1974), cert. denied, 311 So.2d 670 (F1a.1975). In the instant case, there was no newspaper publication or notice of the City Commission meeting, at which adoption of the ordinance took place. Accordingly, the ordinance is null and void because the City failed to follow the mandatory notice requirements of Section 166.041(3) (a). See David v. City of Dunedin, 473 So.2d 304 (Fla. 2d DCA 1985); Fountain v. City ofJacksonville, 447 So.2d 353 (Fla. 2d DCA 1984).3 It is well established law that failure of a Florida City to give the required notice will render the legislative measure void.4 The defectively noticed designations via resolution made in July 2014 must be re -noticed from the outset. That is, the process must begin anew for all. Thus, let the records reflect that this legislative action has no force and effect in law. Please adjust your records accordingly by placing a copy of this memo in your Iegislative file (Legistar) next to the legislation so that notice is given to all that there is no Brownfield designation pursuant to Resolution No. R-14-0303 (see attached). 3 HealthSouth Doctors Hospital Inc. v. Hartnett, 622 So. 2d 146 (FIa. 3'I DCA 1993). 4 White v. Town of Inglis, 988 So. 2d 163(F1a. 1 DCA 2008), Doc. No.: 513852 City of Miami Master Report Enactment Number: R-14-0303 City Hail 3500 Pan American Drive Miami, FL 33133 www.miamigov.com File Number: I4-00566 Version: I File Name: City Parks Brownfield Site Designation Fife Type: Resolution Status: Passed Reference: Controlling Body: Office tithe City Clerk Introduced: 6/16/2014 Requester: Department of Capital Cost: Final Action: 7/24/2014 Improvement Programs/Transportation Title: A RESOLUTION OF THE MI.AMI CITY COMMJSSION, WITH ATTACHMENT(S), DESIGNATING THE PROPERTIES LOCATED AT 3 045 SHIPPING AVENUE, 2795 SOUTHWEST 37TH AVENUE, 3400 GRAND AVENUE, 3349 PAN AMERICAN DRIVE, 4355 SOUTHWEST 42ND AVENUE, AND 140-142 SOUTHWEST 11 TH STREET, AS BROWNFIELD SITES WITHIN THE CITY OF MIAMI, FLORIDA, FOR THE PURPOSE OF ENVIRONMENTAL REHABILITATION AND PURSUANT TO FLORIDA STATUTES SECTION 376.50, ET. SEQ., WITH OTHER CONDITIONS AS STATED HEREIN. Sponsors: Notes: Indexes: Attachments: 34-00566 Summary Form.pdf,14-00566 Notice to the Public,pdf,14-00566 Memo - Designated Properties.pdf,14-00566 Legisiation.pdf,14-00566 Exhibit 1.pdf,14-00566 Exhibit 2,pdf,14-00566 Exhibit 3.pdf,14-00566 Exhibit 4.pdf,14-00566 Exhibit 5.pdf, History of Legislative File Version: Acting Body: Date: Action: Sent To: Due Date: Return Date: Result: I Office of the City 7/15/2014 Reviewed and Attorney Approved 1 City Commission 7/24/2014 ADOPTED Pass 1 Office of the Mayor 7/29/2014 Signed by the Mayor Office of the City CIerk I Office of the City Clerk 713012014 Signed and Attested by City Clerk City of Mont Page 1 Printed an 812612014 City of Miami Legislation Resolution City Hall 3500 Pan American Drive Miami, FL 33133 www.miamigav,com File Number: 14-00566 Final Action Date: A RESOLUTION OF THE MIAMI CITY COMMISSION, WITH ATTACHMENT(S), DESIGNATING THE PROPERTIES LOCATED AT 3045 SHiPPING AVENUE, 2795 SOUTHWEST 37 T H AVENUE, 3400 GRAND AVENUE, 3349 PAN AMERICAN DRIVE, 4355 SOUTHWEST 42ND AVENUE, AND 140-142 SOUTHWEST 11TH STREET, AS BROWNFIELD SITES WITHIN THE CITY OF MIAMI, FLORIDA. FOR THE PURPOSE OF ENVIRONMENTAL REHABILITATION AND PURSUANT TO FLORIDA STATUTES SECTION 376.80, ET. SEQ., WITH OTHER CONDITIONS AS STATED HEREIN. WHEREAS, the properties located at 3045 Shipping Avenue, 2795 Southwest 37th Avenue, 3400 Grand Avenue, 3349 Pan American Drive, 4355 Southwest 42nd Avenue, and 140-142 Southwest llth Street, Miami, Florida ("Properties"), are owned by the City of Miami ("City"); and WHEREAS, certain contaminants in excess of the Residential Cleanup Target Levels were discovered in the soil at 3045 Shipping Avenue, Miami, Florida (Blanche Park), on or about September 4, 2013, as more particularly described in Exhibit "1" attached and incorporated; and WHEREAS, certain contaminants in excess of the Residential Cleanup Target Levels were discovered in the soil at 2795 Southwest 37th Avenue, Miami, Florida (Douglas Park), on er about November 13, 2013, as more particularly described in Exhibit "1 ", attached and incorporated; and WHEREAS, certain contaminants in excess of the Residential Cleanup Target Levels were discovered in the soil at 3400 Grand Avenue, Miami, Florida (Billy Rolle Park), on or about December 23, 2013, as more particularly described in Exhibit "1", attached and incorporated; and WHEREAS, certain contaminants in excess of the Residential Cleanup Target Levels were discovered in the soil at 3349 Pan American Drive, Miami, Florida (Site of Future Regatta Park), on or about April 26, 2013, as more particularly described in Exhibit "1", attached and incorporated; and WHEREAS, certain contaminants in excess of the Residential Cleanup Target Levels were discovered in the soil at 4355 Southwest 42nd Avenue, Miami, Florida (Merrie Christmas Park), on or about September 20, 2013, as more particularly described in Exhibit "1"; attached and incorporated; and WHEREAS, certain contaminants in excess of the Residential Cleanup Target Levels were discovered in the soil at 140-142 Southwest 11th Street, Miami, Florida (Southside Park), on or about December 23, 2013, as more particularly described in Exhibit "1 ", attached and incorporated; and WHEREAS, the City has already undertaken assessment and remediation of the Properties in accordance with local and State law; and WHEREAS, pursuant to Resolution No. 98-242, adopted March 10, 1998; Resolution No. 99-197, adopted March 23, 1999; Resolution No. 05-0117, adopted February 24; 2005; and Resolution City of�iliarrei Page 1 of 3 File Id: 14-00566 0arsion: 11 Printed On: 7/1I/2014 File Number: 14-00566 No. 06-0561, adopted September 28, 2006, the City Commission designated certain areas within the City to be Brownfield Areas, which contain vacant, blighted, or underused property that might be limited by actual or perceived environmental contamination, as more particularly described in Exhibit "2", attached and incorporated; and WHEREAS, the Properties are located outside of the current City Brownfield Area previously designated, shown on the map marked Exhibit"3", attached and incorporated; and WHEREAS, the City desires to designate the Properties as Brownfield sites; and WHEREAS, the City agrees to rehabilitate and remediate the Properties; and WHEREAS, the rehabilitation and redevelopment of the Properties will result in the creation of recreational areas and parks: and WHEREAS, the Property use is consistent with the local comprehensive plan and are permissible uses under the applicable local land development regulations; and WHEREAS, the Properties are designated as City parks and will remain as City parks; and WHEREAS, the City has sufficient financial resources to implement and complete the rehabilitation agreement and restoration of the Properties; and WHEREAS, the City has considered the following criteria set forth in Florida Statutes Section 376.80(2)(a) in designating the Properties as Brownfields, as more particularly described in Exhibit "4" attached and incorporated: (1) whether the Brownfield site warrants economic development and has a reasonable potential for such activities, (2) whether the proposed area to be designated represents a reasonably focused approach and is not overly large in geographic coverage, (3)whether the area has potential to interest the private sector in participating in rehabilitation, and (4) whether the area contains sites or parts of sites suitable for limited recreational open space, conservation areas, or parks; and WHEREAS, pursuant to Florida Statute 376.80(1)(c)(1) of the Florida Brownfields Redevelopment Act, the City shall notify the Florida Department of Environmental Protection and the Miami -Dade Department of Regulatory and Economic Resources for amendments to the existing City Designated Brownfield Area; and WHEREAS, the City Commission has determined that the Properties have met the criteria to be designated as Brownfield sites; NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: Section 1. The recitals and findings contained in the Preamble to this Resolution are adopted by reference and incorporated as fully set forth in this Section. Section 2. The City Commission designates the Properties as Brownfield sites within the City, for the purpose of environmental rehabilitation and pursuant to Florida Statutes Section 376.78, et. seq. City of Miami Page 2 of 3 File Id; 14-00566 (i4erstan' 1) Printed On: 7/11/2014 File Number, 14-00566 Section 3. In accordance with the Brownfields Redevelopment Act, Section 376.80(1), Florida Statutes, for Brownfield program administration processes, the City Manager is directed to notify the Florida Department of Environmental Protection and the Miami -Dade Department of Regulatory and Economic Resources of the designation of the Properties as Brownfield sites, and to undertake any other necessary related procedures, notices, and requirements for said designation. Section 4. The map of designated Brownfield sites and areas shall be updated to include the Properties. Section 6. Simultaneous to the designation, the City will continue remediation of City parks affected by contamination, enter into a Brownfieids Site Rehabilitation Agreement for each park, and apply for Voluntary Cleanup Tax Credits upon obtaining a Site Rehabilitation Completion Order. Section 6. This Resolution shall become effective immediately upon its adoption and signature of the Mayor.{1} APPOVED AS TO FORM AND CORRECTNESS: r VI ` ARIA MENDEZ CITY ATTORNEY Footnotes : {1} If the Mayor does not sign this Resolution, it shall become effective at the end of ten (10) calendar days from the date it was passed and adopted. if the Mayor vetoes this Resolution, it shall become effective immediately upon override of the veto by the City Commission. Cloy of ;11'iaerl Page 3 of 3 File Id: 14-00566 (Version: 1) Printed On: 7/11/2014 CITY OF MIAMI, FLORIDA INTER -OFFICE MEMORANDUM TO: Daniel J. Alfonso City Manager DATE: June 13, 2014 FILE: SUBJECT: Findings to Designate Select City of Miami Parks as Brownfield Sites FROM: Mark Spanioli, P.E., DirectoREFERENCES: Capital Improvements and Transportation Program ENCLOSURES: Property Locations This memorandum respectfully requests your approval and adoption of the below described findings to authorize designating six (6) City parks that are located outside of the City of Miami existing Brownfield Area, as Brownfield Sites. The City has conducted environmental status evaluations at 112 parks located within our jurisdiction due to contamination discovery at Blanche Park while implementing soil testing within a 1-mile radius of the former City Incinerator #2 that operated in Coconut Grove located at 3900 Thomas Ave, which is currently the Grove Fire Rescue Training Center. During the environmental status evaluation via visual park inspections, historical aerial photographs, and viewing archived City files; several locations were suspected of former landfill operations prior to conversion into parks. Following the initial environmental status evaluation, the soil was tested at each of the parks of concern which resulted in confirmation of eight (6) City parks containing a combination of solid waste debris and heavy metals at levels that exceed the Miami -Dade Cleanup Target Levels for the Residential Threshold (residential threshold for parks is due to children's potential exposure to the soil). Per the requirements of Florida Administrative Code (F.A.C.) 62-780, the City is required to remedy environmental hazards on any property that it owns. The location and name of the parks tested with confirmation of solid waste debris and heavy metals contamination are as follows, Outside of the existing City of Miami Designated Brownfield Area 3045 Shipping Avenue (Blanche Park) 2795 SW 37th Avenue (Douglas Park) 3400 Grand Avenue (Billy Rolle Park) 3349 Pan American Drive (Site of Future Regatta Park) 4355 SW 42nd Avenue (Merrie Christmas Park) 140-142 SW 11t' Street (Southside Park) Within the existing City of Miami Designated Brownfield Area 1901 NW 241h Avenue (Curtis Park) 301 Biscayne Boulevard (Bayfront Park) FINDINGS As of the date of this memo, Blanche Park is currently under remediation, Merrie Christmas Park is in the pre-remediation phase, and the remaining are either undergoing or concluding a thorough environmental assessment by testing of the soil and groundwater. The City of Miami intends to remediate each park with confirmed environmental contamination per requirements listed within F.A.C. 62-780. Each park remediated will be restored to its original form, and will remain as a park upon completion of the work. Brownfields are typically associated with property that has a combination of environmental issues and redevelopment potential. Although there will be no redevelopment component in these instances, the City intends to; 1.) Designate each of the six (6) parks affected and not currently in the City Designated Brownfield Area, as a Brownfield Site; 2.) Enter into a Brownfield Site Rehabilitation Agreement with the Miami -Dade Department of Environmental Resources Management (DERM) far all eight (8) parks and; 3.) Upon successful remediation, apply for Voluntary Cleanup Tax Credits for the purpose of sale or transfer of the credit as allowed per Florida Statute 220.1845. The City of Miami currently owns each City park. Dating back to as early as the 1930`s, residual incinerator ash was deposited on parcels of land throughout Dade County, some of which were converted into City parks. The City of Miami owned the parcels of land in which the eight (8) City parks are located at the time of this practice. This activity predated today's environmental laws, however currently Florida Statute 376.80 imposes strict liability on any owner of a contaminated site. According to Florida Statute 376.82; any person who has not caused or contributed to the contamination of a Brownfield Site on or after July 1, 1997, is eligible to participate in the brownfeld program established in ss. 376.77-375.85. The contamination discovered at each park was deposited prior to 1997, therefore the City would be eligible to claim Voluntary Cleanup Tax Credits on each property, given that they are designated Brownfield Sites, and that each has undergone remediation following the guidelines in F.A.C. 62-780. Upon successful remediation, and issuance of a Site Rehabilitation Completion Order from the Florida Department of Environmental Protection (FDEP), a maximum of 3500,000 can be claimed on each property; and the credits may be sold or transferred in units of not less than 25% of the remaining credit. Unused credits may be carried forward for up to five (5) tax years. The City has determined that designation of these properties as Brownfield Sites coupled with the cleanup would be of future benefit for the purpose of recouping a portion of the overall costs that will be expended to investigate and remediate these sites, which will total several millions of dollars. Your signature below will indicate your concurrence with the above recommendation and acceptance of these findings as your own justification for designating these six (6) park properties as Brownfield Sites for the purpose of the sale or transfer of future Voluntary Cleanup Tax Credits that will be applied for and issued for each property individually. Approved b Daniel J. Alto City Manager Date: %2c) Cc: Alice Brava, P.E„ Deputy City ManageriChief of Infrastructure Victoria Mendez, City Attorney Mark Spanioii, P.E., ❑irector, Capital improvements and Transportation Program Stanley Motley, Director, Parks and Recreation Department CITY OF MIAMI PARKS BROWNFIELD DESIGNATION PROPERTIES BLANCHE PARK Property Highlighted in Red: 3045 Shipping Avenue (Blanche Park); Folio: 01-4121-019-0030 DOUGLAS PARK Property Highlighted in Red: 2795 SW 37 Avenue (Douglas Park); Folio: 01-4116-000-0220 BILLY ROLLE PARK Property Highlighted in Red: 3400 Grand Avenue (Billy Rolle Park); Folio: 01-4121-O07-4620 FUTURE REGATTA PARK Property Highlighted in Red: 3349 Pan American Drive (Future Regatta Park) Folio: 01-4122-002-0010 MERRIE CHRISTMAS PARK Property Highlighted in Red: 4355 SW 42 Avenue (Merrie Christmas Park) Folio: 01-4129-000-0150 SOU THSIDE PARK Property Highlighted in Red: 140-142 SW 11 Street (Southside Park); Folio: 01-0208-050-1010