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HomeMy WebLinkAboutSubmittal at 05-15-2019 PZAB Mtg - Development Agreement Draft - Eastside RidgeNOTE: THIS DRAFT IS SUBJECT TO CHANGE PRIOR TO PUBLIC HEARING As OF 03-20-19 This Instrument was Prepared by, and After Recording Should be Returned to: A. Vicky Leiva, Esq. Bilzin Sumberg Baena Price & Axelrod, LLP 1450 Brickell Avenue, Suite 2300 Miami, Florida 33131 miffed Into The Record I5llc, DEVELOPMENT AGREEMENT BETWEEN THE CITY OF MIAMI, FLORIDA AND SPV REALTY, LC REGARDING DEVELOPMENT OF EASTSIDE RIDGE SPECIAL AREA PLAN This Development Agreement (the "Agreement") executed this day of 2019, between SPV Realty LC, a Florida limited liability company ("Owner") and the City of Miami, Florida, a Florida municipal corporation and a political subdivision of the State of Florida (the "City"). The Owner and the City are each a "Party" and are collectively referred to herein as the "Parties." RECITALS WHEREAS, the Owner is the fee simple owner of 22.47 acres of property in the City of Miami, Florida, legally described in the attached Exhibit "A" and generally bounded by: (a) NE 54th Street on the north; (b) the FEC Railway on the east; (c) Block 3 of the Sabal Palm Plat recorded at Plat Book 46, Page 66 (of the Public Records of Miami -Dade County, Florida), and NE 2nd Avenue on the west; and (d) the Replat of the North One Half of Tract 9, All of Tracts 10, 11, and 12 of the Revised Plat of Brentwood as recorded at Plat Book 47, Page 20 of the Public Records of Miami -Dade County, Florida (the "Property"); and WHEREAS, the Property is located in an Enterprise Zone in which the City envisions sustained economic growth through County and State -offered tax incentives; and WHEREAS, the Property's location at the southwest corner of the intersection of NE 54 Street and the FEC Railway, and the Property's close proximity to Biscayne Boulevard make it well suited to support greater future development; and WHEREAS, the Parties wish to ensure that future development of the Property acknowledges the Property's proximity to Little Haiti; and WHEREAS, the South Florida Regional Transportation Authority (the "SFRTA") has identified the intersection of NE 54 Street and the FEC Railway as an ideal location for a future station along its planned "Tri-Coastal Link" passenger rail line; and WHEREAS, the Property's location abutting the Tri-Rail Coastal Link railway will allow for efficient access via fixed -rail public transportation, making the Property ideally situated to provide heightened density and intensity commensurate with a transit -oriented development node; and MIAMI 6286146.1 83885/87055 NOTE: THIS DRAFT IS SUBJECT TO CHANGE PRIOR TO PUBLIC HEARING and conditions set forth below, and the Owner is duly authorized to execute this Agreement upon the terms and conditions set forth below. NOW THEREFORE, in consideration of the mutual covenants contained herein, it is hereby understood and agreed: 1. Recitals, Exhibits. The above recitals and the exhibits referenced in this Agreement are true and correct, and are incorporated into and made a part hereof. 2. Consideration. The Parties hereby agree that the consideration and obligations recited and provided for in this Agreement constitute substantial benefits to the Parties and thus are adequate consideration for this Agreement. 3. 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 the plural include the singular; (c) A pronoun in one gender includes and applies to other genders as well; (d) The terms "hereunder", "herein", "hereof', "hereto" and such similar terms shall refer to the instant Agreement in its entirety and not to individual sections or articles; (e) The Parties agree that this Agreement shall not be more strictly construed against either the City or the Owner, as both Parties are drafters of this Agreement; and (f) The attached exhibits shall be deemed adopted and incorporated into this Agreement; provided however that this Agreement shall be deemed to control in the event a conflict between the attachments and this Agreement. 4. Definitions. Capitalized terms which are not specifically defined herein shall have the meaning given to them in Miami 21. "Affordable Housing" shall have the same meaning currently attributed to the term under Miami 21 and shall mean an owner -occupied and/or rental dwelling unit with a purchase cost, value, or monthly rent, as applicable, equal to or less than the amounts established by the applicable standards for those individuals whose income is at or below 60 percent of Area Median Income as published by the United States Department of Housing and Urban Development and certified by the City's Department of Community and Economic Development. "Agreement" means this Development Agreement between the City and the Owner. "Certified Minority Enterprise" means an enterprise certified by Miami -Dade County as a Community Business Enterprise ("CBE"); a Community Small Business Enterprise ("CSBE"); a Black Business Enterprise ("BBE"); a Disadvantaged Business Enterprise M IAM I 6286146.1 83885/87055 3 of 31 NOTE: THIS DRAFT IS SUBJECT TO CHANGE PRIOR TO PUBLIC HEARING NOTE: THIS DRAFT IS SUBJECT TO CHANGE PRIOR TO PUBLIC HEARING "Effective Date" is the date or recordation of the executed, original version of this Agreement. "Encroachment" includes any improvement to the Property by the Owner or a fixture to such an improvement, or any portion of such an improvement or fixture that: (a) is located on, over, within, or beneath real property owned or operated by the City, the County, or which is otherwise dedicated as part of the public right- of-way or Pubic Open Space; and (b) has been authorized by the relevant local government(s) pursuant to applicable laws and a permit issued separate and apart from this Agreement or the SAP. "Existing Zoning" is (a) Miami 21 Code, effective May 2010, as amended, specifically including the Eastside Ridge SAP Regulating Plan and Design Guidelines (see Exhibit C), and (b) the Land Development Regulations specified in the Charter and City Code as of the Effective Date. "Florida Local Government Development Agreement Act" shall mean Sections 163.3220 through 163.3243 of the Florida Statutes (2018). "Land Development Regulations" mean those laws and policies of the City that regulate any aspect of development including zoning, subdivision, building construction, or sign regulations or any other such regulation controlling the development of land and specifically including Chapters 4, 10, 13, 22, 23, 36, 54, 55 and 62 of the Code. "Laws" means all ordinances, resolutions, regulations, comprehensive plans, land development regulations, and rules adopted by a local or state government affecting the development of land. "Little Haiti Area" the area within the following metes and bounds: Beginning at the intersection of Northeast 54th Street and Northeast 4th Avenue, travelling westward along the midblock line between Northeast 54th Street and the street parallel to the south, until it meets Interstate I-95, then travelling northward along the center line of Interstate I-95, until meeting the boundary of the City of Miami, then turning and traveling eastward along the midblock line to include the frontage of Northwest 79th Street, until reaching North Miami Avenue, then travelling northward along North Miami Avenue until it reaches the Little River, then travelling eastward, following the northern boundary of the City of Miami along the Little River, until reaching Northeast 2nd Avenue, then travelling southward along the midblock line between Northeast 2nd Avenue and the street running parallel to the east, to include the eastern frontage of Northeast 2nd Avenue, until reaching the northern boundary of Little Haiti Park, then following M IAM I 6286146.1 83885/87055 5 of 31 NOTE: THIS DRAFT IS SUBJECT TO CHANGE PRIOR TO PUBLIC HEARING NOTE: THIS DRAFT IS SUBJECT TO CHANGE PRIOR TO PUBLIC HEARING as public Open Space and/or open Civic Space, and consisting of a combined area of approximately 294,945 square feet. "Redevelopment of the Property" means all construction required to improve the Property in accordance with the SAP. Redevelopment of the Property does not include any construction or improvements not authorized by the SAP. "Regulating Plan" means the City Commission -approved set of land development regulations that supersede standard transect regulations provided in Miami 21. Together with the Design Guidelines and this Agreement, the Regulating Plan provides the information required by Miami 21 Section 3.9.1(c) through (h). "SAP Area" is used interchangeably with the capitalized term, "Property." "Special Area Plan" or "SAP" means the Eastside Ridge Special Area Plan, including the Regulating Plan and Design Guidelines. "Special Area Plan Permit" or "SAP Permit" means the review process through which SAP development phases or elements of the SAP requiring additional review as identified in the Regulating Plan or this Agreement are reviewed and approved, approved with conditions, or denied by the Planning Director. Site plan approval for each SAP phase shall be completed by SAP Permit. "Workforce Housing" shall have the same meaning currently attributed to the term under Miami 21 and shall mean a Dwelling Unit, owner -occupied and/or rental housing with a purchase cost, value, or monthly rental rate, as applicable, equal to or less than the amounts established by the applicable standards for those individuals whose income is between 60 percent and 140 percent of the Area Median Income as published by the United States Department of Housing and Urban Development and the City's Department of Community and Economic Development. 5. Purposes. The purposes of this Agreement are: a. To satisfy the requirements of Miami 21 Section 3.9.1(f) by, among other things, providing for the creation and retention of certain public benefits; b. In satisfying the requirements of Miami 21 Section 3.9.1(f), to authorize Redevelopment of the Property; and c. To provide Owner assurance that it may proceed with the development of the Property in accordance with the SAP and existing laws and policies as of the Effective Date consistent with the Florida Local Government Development Agreement Act. MIAMI 6286146.1 83885/87055 7of31 NOTE: THIS DRAFT IS SUBJECT TO CHANGE PRIOR TO PUBLIC HEARING NOTE: THIS DRAFT IS SUBJECT TO CHANGE PRIOR TO PUBLIC HEARING c. As of the Effective Date and pursuant to the SAP, the Heights proposed for the Property are permitted by the Existing Zoning and are consistent with the Existing Zoning and are consistent with the Comprehensive Plan. 11. Future Development. a. Controlling Regulations. The Property shall be developed as provided in the Comprehensive Plan and Existing Zoning, including the SAP Regulating Plan, Design Guidelines, and this Agreement as each exists as of the Effective Date. b. SAP Permit. Future phases of the SAP shall be reviewed and approved pursuant to the procedures of the SAP Permit. See SAP Permit definition in this Agreement. c. Area -Wide Standards. Density, Intensity, Civic Space, and Open Space are governed on a SAP -wide basis rather than on a site -specific basis. i. As development proceeds on individual building sites, Dwelling Units and/or floor area will be absorbed and the SAP -wide totals will be reduced. SAP -wide Civic and Open Space totals consisting of common open space delineated and developed at the commencement of development of the SAP shall be increased as site -specific open space areas are developed counted. All remaining regulations, including all other building disposition requirements, are applied on a site -specific basis within sites identified in the SAP Design Guidelines. d. Covenant in Lieu of Unity of Title. The Owner shall enter into a Covenant in Lieu of Unity of Title covering the entire Property prior to any redevelopment activities on any portion of the Property. e. Amendments, Generally. Any modifications to this Agreement shall be approved in accordance with the SAP. The City's laws and policies adopted after the Effective Date may be applied to the Property only if the determinations required by Section 163.3233(2), Florida Statutes (2017), have been made after thirty (30) days written notice to the Owner, and at a public hearing. f. Amendments by Owner. Nothing in this Agreement shall prohibit the Owner from requesting a change of zoning or amendment of the SAP pursuant to Article 7 of Miami 21 to modify the Density, Intensity, Uses or Heights permitted under the SAP. MIAMI 6286146.1 83885/87055 9 of 31 NOTE: THIS DRAFT IS SUBJECT TO CHANGE PRIOR TO PUBLIC HEARING NOTE: THIS DRAFT IS SUBJECT TO CHANGE PRIOR TO PUBLIC HEARING i. Capital Contribution. Owner agrees to invest an amount up to and not to exceed $10,000,000 (the "Capital Contribution") subject to the terms of this Section. ii. Use of Capital Contribution. Use of the Capital Contribution will be governed by an initial charter overseen by a seven -member board, with four (4) members to be appointed by the Owner and three (3) members to be appointed by the then City Commissioner for the district in which the Property is located. The purposes for which the Capital Contribution may be used will be limited to the following categories, to be further defined by the appointed board: 1. Affordable Housing 2. Advancing Educational Opportunities 3. Promoting Haitian -Owned & Operated Business 4. Promoting Haitian Culture, Art, and Language 5. Immigration and Naturalization Assistance iii. Contribution Commensurate with Number of Units Approved. Owner's Capital Contribution will be commensurate with the total number of dwelling units that are authorized to be constructed at the property. The Owner's Comprehensive Plan and SAP applications propose a maximum of 3,370 dwelling units. If the SAP is approved with less than 3,300 of the proposed dwelling units, the Capital Contribution will be reduced as follows: 1. By $1,500 per unit for each unit below a total of 3,300 units 2. By $2,000 per unit for each unit below a total of 3,000 units 3. By $4,500 per unit for each unit below a total of 2,800 units 4. By $7,375 per unit for each unit below a total of 2,300 units iv. Installments. The Capital Contribution shall be made in installments as follows: a. SAP Approval. $500,000 or 5% will be paid after the City Commission approved the proposed Comprehensive Plan, SAP and Development Agreement, and all applicable appeal periods expire. b. Phase 1 Development Approval. $500,000 or 5% will be paid after the City issues necessary development approvals for Phase 1 construction and applicable appeal periods expire. MIAM 16286146.1 83885/87055 11 of31 NOTE: THIS DRAFT IS SUBJECT TO CHANGE PRIOR TO PUBLIC HEARING NOTE: THIS DRAFT IS SUBJECT TO CHANGE PRIOR TO PUBLIC HEARING Haiti community to be appointed by the Owner and the then City Commissioner for the district in which the Property is located. To serve on the governing board, all individuals must demonstrate active involvement in promoting the social and economic welfare of the Little Haiti community. Vacancies on the foundation's governing board will be filled by the Owner and the City Commissioner. vi. Management. To ensure that the Capital Contribution is efficiently managed and to encourage transparency and accountability, daily management and supervision of the Capital Contribution shall be managed by an established community foundation serving Miami. vii. Within City Limits. Use of funds will be limited to projects located within the Little Haiti Neighborhood Enhancement Team ("NET") District. viii. Operating Costs. The costs of forming the board, creating and recording governing documents, establishing contracts with a community foundation, and all future operations of the board's management of the Capital Contribution shall be paid out of the Capital Contribution. ix. Contributions by Others. The Capital Contribution may be augmented by contributions from others provided, however, that the initial Capital Contribution remain subject to all terms of this paragraph 13(a). b. Job Creation and Employment Opportunities. i. "Tiered Priority Areas." As further described in paragraph 13, several employment opportunities will be offered according to "Tiered Priority Areas." These are areas of the City and Miami -Dade County where opportunities will be extended for a specified period time or until specified targets are satisfied. Opportunities will be extended to persons residing in the first priority area, then the second priority area, and so forth until hiring goals are satisfied. The Tiered Priority Areas are: M IAM I 6286146.1 83885/87055 1. First priority: Little Haiti Area and the portions of the following zip codes located within the City of Miami: 33127, 33137, 33138, and 33150 2. Second priority: Southeast Overtown Park West Redevelopment Area 13 of 31 NOTE: THIS DRAFT IS SUBJECT TO CHANGE PRIOR TO PUBLIC HEARING NOTE: THIS DRAFT IS SUBJECT TO CHANGE PRIOR TO PUBLIC HEARING 7. Laborer Participation. a. Owner agrees that at least 25% of the labor for the Redevelopment of the Property will consist of City of Miami residents and that at least 40% of the labor for the Redevelopment of the Property will consist of Miami -Dade County residents. b. In order to accomplish the above laborer participation goal, Owner will require its general contractor(s) and subcontractors to seek laborers in the first Tiered Priority Area for at least 60 days before expanding its search to lower priority areas. The general contractor(s) and subcontractor(s) must search within each lower tiered priority areas for no less than 30 days before expanding the search into lower priority areas. c. In the event of any disputes between the City Manager and the Owner as to whether any subcontractor has its principal place of business in the City or County, or whether any laborer resides in the City or County, and whether the Owner complied with the Tiered Priority Areas, the Owner and the City Manager shall proceed in good faith to resolve the dispute. In the event the dispute is not resolved within ten days, either Party may submit the dispute to an arbitrator for resolution. The arbitrator shall be approved by both Parties, such approval not to be unreasonably withheld. The decision of the arbitrator shall be binding on the Parties. iii. Hiring Goals: Permanent Jobs. MIAMI 6286146.1 83885/87055 1. Employment by Owner. In connection with all employment opportunities available in connection with the operation of the Property that are within the control of the Owner, including the commercial components of the Property, Owner agrees to recruit and hire employees who are residents of the City or County according to the Tiered Priority Areas, with a goal of having 10% of the workforce employed by Owner at the Property to be residents of the City or County. Owner will apply all commercially reasonable efforts to identify qualified employees in the first Tiered Priority Area for no less than 60 days before 15 of 31 NOTE: THIS DRAFT IS SUBJECT TO CHANGE PRIOR TO PUBLIC HEARING NOTE: THIS DRAFT IS SUBJECT TO CHANGE PRIOR TO PUBLIC HEARING 7. In all solicitations and advertisements for employment placed by or on behalf of Owner, state that all applicants will receive consideration for employment without regard to race, creed, color or national origin. 8. A job applicant's criminal record will not serve as an automatic bar to recruitment or hiring provided that the Owner and its general contractor retain the right to disqualify applicants for employment or promotion, and to fire existing employees who commit or have records of conviction for felony crimes involving violence including but not limited to battery, robbery, sexual assault and abuse, attempted murder, and murder. v. Community Outreach and Employment. Owner will coordinate with organizations experienced in implementing local preference job opportunities and entities in its search for permanent employees where such employment is within the control of the Owner. vi. Job Fairs. Owner shall contract with an organization experienced in implementing local job preference opportunities to conduct job fairs and similar outreach in Little Haiti Area. Such events will be conducted for construction jobs and permanent jobs prior to commencement of construction of each Phase of the SAP. c. Workforce Housing. i. Owner agrees to set aside 10% of the total residential dwelling units constructed at the Property as Workforce Housing. ii. The Owner shall use best efforts to include Workforce Housing units in each phase of the Property's development as those phases are described in Sheet A-11 of the Design Guidelines. iii. Nothing in this Agreement shall limit Owner's ability to take advantage of any Workforce or Affordable Housing incentives currently provided by the City Code or Existing Zoning, or any such incentives that may be provided in the future. Such incentives include but are not limited to the deferral of or exemption from any impact, development, or building permit fees, and reductions in off-street parking requirements. d. Relocation Assistance. For at least six (6) months prior to the demolition of any residential building located on the Property, Owner will stop leasing rental units existing on the Property as they are vacated. Those vacated units will be reserved MIAMI 6286146.1 83885/87055 17 of 31 NOTE: THIS DRAFT IS SUBJECT TO CHANGE PRIOR TO PUBLIC HEARING NOTE: THIS DRAFT IS SUBJECT TO CHANGE PRIOR TO PUBLIC HEARING intersections at NE 51 st Street and NE 2nd Avenue which provide access to Design Place and the Miami Jewish Health Systems site into one (1) signalized intersection and will provide access to both developments. iv. Traffic Improvements Along NE 54 Street. The Owner will construct right-of-way improvements along NE 54 Street in substantial compliance with Sheet of the Design Guidelines and the City's Traffic Sufficiency letter dated August 8, 2016, a copy of which is attached as Exhibit " ". Such improvements shall be limited to: 1. Creation of a new median along NE 54 Street; 2. Pending the results of an 8-hour signal warrant analysis and authorization by the County, the signalization of the intersection of NE 54 Street and NE 3 Avenue, and the construction of a westbound left -turn lane and an eastbound right -turn lane; and 3. Installation of new _ crosswalks with differentiated surfaces designed to calm traffic speeds. As NE 54th Street is a Florida Department of Transportation (FDOT) maintained roadway, the above improvements shall be subject to approval by Miami -Dade County and FDOT. v. FEC Greenway. The Owner shall construct that portion of the FEC Greenway adjacent to the Property, which includes pedestrian and bicycle paths, as described on Sheet L-10 of the Design Guidelines. Said construction shall take place concurrently with construction of the abutting phase of the SAP. Community Space. i. To encourage community development and civic participation in Little Haiti and to help encourage the Property's integration into the Little Haiti community, Owner agrees to set aside approximately 2,000 square feet of community space ("Community Space") in the SAP at its sole cost. ii. The Community Space may be reserved by any non-profit organization located within the City Commission district in which the Property is located for purposes of holding organizational meetings or similar gatherings. The Community Space shall not be reserved for parties or other such events. M IAM 16286146.1 83885/87055 19 of 31 NOTE: THIS DRAFT IS SUBJECT TO CHANGE PRIOR TO PUBLIC HEARING NOTE: THIS DRAFT IS SUBJECT TO CHANGE PRIOR TO PUBLIC HEARING ii. Location. The general location and dimensions of the Public Open Spaces shall be substantially in accordance with this Agreement and the SAP (including Sheet B-4 of the Design Guidelines), or as otherwise mutually agreed by the Parties. iii. Dedication of Park Land. Within 180 days after at least fifty percent (50%) of the approved floor area within the SAP has been constructed and has received a Certificate of Occupancy, the Owner shall convey approximately fifty percent (50%) of the portion of the Property identified in the SAP as "Civic Space Park" on Sheet B-4 of the Design Guidelines ("Park Land"). Within 180 days after issuance of the final Certificate of Occupancy for the final Phase of the SAP, the Owner shall convey to the City the balance of the Park Land. 1. Condition of Park Land. At time of conveyance, the Park Land shall consist of open, sodded land and include walkways, as generally depicted in the Design Guidelines. The Park Land shall also contain an area dedicated for use as a dog park. 2. Amendment to Zoning Designation. It is intended and required by this Agreement that the Park Land will be rezoned to the Civic Space ("CS") zoning designation subsequent to the conveyance of deeds being issued by the Owner to the City, pursuant to paragraph 13(h)(iii) above. The Owner will assist and support the City in the rezoning of the Park Land. 3. Use and Reversionary Interest. The City shall use the Park Land only for passive public park purposes. No improvements or leases shall encumber the Park Land. Owner shall retain a reversionary interest in said Park Land. Should the City cease to use the Park Land for public park purposes, the Park Land shall revert to the Owner by operation of law. The instruments conveying the Park Land shall contain all restrictions. 4. Maintenance and Access. The Owner shall retain responsibility for all ongoing maintenance of the Park Land at its sole expense. Owner shall be responsible for opening and closing the Park Land consistent with Section 38-3 of the City Code. iv. Events. All temporary uses or special events within the SAP Area, inclusive of the Park Land subsequent to conveyance to City, must obtain Owner approval and shall be scheduled and managed by the Owner. Following approval by the Owner, all applicable permits must be obtained M IAM I 6286146.1 83885/87055 21 of 31 NOTE: THIS DRAFT IS SUBJECT TO CHANGE PRIOR TO PUBLIC HEARING NOTE: THIS DRAFT IS SUBJECT TO CHANGE PRIOR TO PUBLIC HEARING Heritage Museum, and the Little Haiti Cultural Center, to identify year-round opportunities for local artists to display or perform their art in the Property's public spaces. 14. Environmental. The SAP is designed to make a significant contribution to the City's tree resources by preserving existing mature tree resources and creating new Public Open Spaces where such resources can be showcased. In light of that contribution, the City and the Owner agree that the Owner will comply with the intent and requirements of Chapter 17 of the City Code by performing tree replacement as follows. a. Off -site Replacement Trees. Notwithstanding the requirements of Section 17- 6(e) of the City Code, where tree replacement within the Property is not possible, the Owner may perform tree replacement on public property in the following order of priority (i) within the SAP Area's Public Open Space; (ii) within a one (1) mile radius of the Property; or (iii) within any City park subject to approval by the City. The Owner further agrees to work with local neighborhood associations to identify locations for, and coordinate the placement of said replacement trees. The City further agrees to facilitate the permitting and planting of replacement trees on all publicly owned property with or abutting the Property, within a one - mile radius of the Property, or within City parks. The Owner agrees to water, trim, root, prune, brace or undertake any other necessary maintenance of the trees it plants, as may be required by the City's Public Works Department, for the term of this Agreement. The Owner further agrees to warranty each off -site replacement trees for one (1) year after the date of installation. b. SAP Area Tree Installation, Maintenance and Guarantee. For all trees planted within the SAP Area, the Owner shall install any needed irrigation and corresponding water meters to support the trees' growth. The Owner shall water, trim, root, prune, brace, or undertake any other necessary maintenance as may be required for trees located within the SAP Area for the term of this Agreement. The Owner further agree to warranty each tree planted in the SAP Area for one year after its planting. c. Tree Replacement Chart. The tree replacement chart below shall be used to determine whether the Owner has satisfied the tree replacement requirements set forth in Section 17-6(a) of the City Code. The chart below replaces and supersedes Charter 17.6.1.1 in the City Code. Tree Replacement Chart Total diameter of tree(s) to be removed Total inches of replacement DBH (sum of inches at DBH) required (12' minimum tree height) 2„ —3" 2" MIAMI 6286146.1 83885/87055 23 of 31 NOTE: THIS DRAFT IS SUBJECT TO CHANGE PRIOR TO PUBLIC HEARING NOTE: THIS DRAFT IS SUBJECT TO CHANGE PRIOR TO PUBLIC HEARING 18. Retail Specialty Center Designation. Pursuant to Chapter 4 of the City Code, the SAP is hereby designated as two (2) "Retail Specialty Centers." 19. Alcoholic Beverage Sales. Notwithstanding the requirements of Section 4-3.2 of the Code or anything to the contrary in Miami 21, Planning, Zoning and Appeals Board, and/or City Commission approval shall not be required for Alcohol Service Establishments as principal uses, including bars, taverns, pubs and lounges, nightclubs, and supper clubs, to be located within the SAP. The number of Alcohol Service Establishments permitted within each Retail Specialty Center in the SAP shall not exceed five (5), exclusive of any bona fide, licenses restaurants where the sale of alcoholic beverages is incidental to and in conjunction with the principal sale of food (i.e., bona fide, licensed restaurants with a 2-COP, 2-COP SRX, 4-COP, 4-COP SRX, or equivalent license). Notwithstanding the requirements of Sections 4-7 and 4-10 of the City Code, restrictions relating to the maximum number and location of Alcoholic Service Establishments, including but not limited to, required distances from churches, residential districts, schools, and other alcoholic beverage establishments, whether within or outside the SAP, shall not apply to establishments within the SAP. 20. Phased Development. The Parties agree that Redevelopment of the Property may be completed by multiple parties in multiple phases over the life of the SAP. While the Owner anticipates that phased Redevelopment of the Property will follow the phasing described on Sheet of the Design Guidelines, the City acknowledges that a variety of factors including but not limited to economic considerations and site conditions may require changes to the scope and sequence of each phase. Accordingly, the Owner may so modify the scope and sequence of each phase without prejudice or any additional approvals from the City. 21. Compliance with Fire/Safety Laws. The Owner shall at all times in the development and operation of the SAP comply with all applicable laws, ordinances, and regulations including life safety codes to insure the safety of all SAP and City residents and guests. Specifically and without limitation, the Owner will install and construct all required fire safety equipment and water lines with flow sufficient to contain all possible fire occurrences. 22. Local Development Permits. The SAP may require additional permits or approvals from the City, County, State or Federal government and any division thereof Subject to required legal processes and approvals, the City shall to take all reasonable steps to cooperate with and facilitate all such approvals, including acting as an applicant. Such approvals include, without limitation, the following approvals and permits and any successor or analogues approvals and permits: (a) Subdivision plat and/or waiver of plat approvals; M IAM I 6286146.1 83885/87055 25 of 31 NOTE: THIS DRAFT IS SUBJECT TO CHANGE PRIOR TO PUBLIC HEARING NOTE: THIS DRAFT IS SUBJECT TO CHANGE PRIOR TO PUBLIC HEARING continue development of the Property in conformity with the SAP and Development Permits or other development orders granted by the City. 26. Annual Review. (a) The City shall review the Development that is subject to this Agreement once every twelve (12) months, commencing twelve (12) months after the Effective Date. The City shall begin the review process by giving notice to the Owner, a minimum of thirty (30) days prior to the anniversary date of the Agreement, of its intention to undertake the annual review of this Agreement. (b) Any information required of the Owner during an annual review shall be limited to that necessary to determine the extent to which the Owner is proceeding in good faith to comply with the terms of this Agreement. (c) If the City finds on the basis of competent substantial evidence that the Owner has not proceeded in good faith to comply with the terms of the Agreement, the City may terminate or amend this Agreement after providing thirty (30) days written notice to the Owner and after a public hearing. 27. 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: With a copy to: To the Owner: MIAMI 6286146.1 83885/87055 City Manager, City of Miami 3500 Pan American Drive Miami, Florida 33133 City Attorney, City of Miami Miami Riverside Center 444 S.W. 2nd Ave., 91' Floor Miami, Florida 33130 SPV Realty, LC ATTN: Kevin Fabricant 12000 Biscayne, Suite 609 North Miami, FL 33181 27 of 31 NOTE: THIS DRAFT IS SUBJECT TO CHANGE PRIOR TO PUBLIC HEARING NOTE: THIS DRAFT IS SUBJECT TO CHANGE PRIOR TO PUBLIC HEARING 32. Venue, Choice of Law, Specific Performance. It is mutually understood and agreed by the Parties hereto, that this Agreement shall be governed by the laws of the State of Florida, and any applicable federal law, both as to interpretation and performance, and that any action at law, suit in equity or judicial proceedings for the enforcement of this Agreement or any provision hereof shall be instituted only in the courts of the State of Florida or federal courts and venue for any such actions shall exclusively in a court of competent jurisdiction in the County. In addition to any other legal rights, the Parties shall each have the right to specific performance of this Agreement in court. Each Party shall bear its own attorney's fees. Each Party waives any defense, whether asserted by motion or pleading, that the aforementioned courts are an improper or inconvenient venue. Moreover, the Parties consent to the personal jurisdiction of the aforementioned courts and irrevocably waive any objections to said jurisdiction. THE PARTIES IRREVOCABLY WAIVE ANY RIGHTS TO A JURY TRIAL. 33. Voluntary Compliance. The Parties hereby agree that in the event all or any Party 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. 34. Severability. Invalidation of any of the sections, terms, conditions, provisions, or covenants, of this Agreement by judgment of court in any action initiated by a third party, in no way shall affect any of the other provisions of this Agreement, which shall remain in full force and effect. 35. Default. (a) The Owner shall be in default under this Agreement if any of the following events occur and continue beyond the applicable grace period: the Owner fails to perform or breaches any term, covenant, or condition of this Agreement which is not cured within sixty (60) 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 sixty (60) days, then the Owner shall not be in default if it commences to cure such breach within said sixty (60) 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 the Owner specifying the nature of such breach; provided, however, that if such breach cannot reasonably be cured within thirty (30) days, the City shall not be in default if it commences to cure such breach within said thirty (30) day period and diligently prosecutes such cure to completion. MIAMI 6286146.1 83885/87055 29 of 31 NOTE: THIS DRAFT IS SUBJECT TO CHANGE PRIOR TO PUBLIC HEARING NOTE: THIS DRAFT IS SUBJECT TO CHANGE PRIOR TO PUBLIC HEARING 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. 40. Third Party Defense. The Parties shall each, at their own cost and expense, vigorously defend any claims, suits or demands brought against them by third parties challenging the Agreement or the SAP, or objecting to any aspect thereof, including, without limitation, (i) a consistency challenge pursuant to Section 163.3215, Florida Statutes (2014), (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 Parties 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. 41. Recording. This Agreement shall be recorded in the Public Records of Miami -Dade County, Florida at the Owner's expense and shall inure to the benefit of the Owner. A copy of the recorded Development Agreement shall be provided to the City Clerk and City Attorney within two (2) weeks of recording. 42. Representations Regarding Authorization to Execute. 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. 43. No Conflict of Interest. The Owner agrees to comply with Section 2-612 of the City Code as of the Effective Date, with respect to conflicts of interest. 44. Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall constitute an original but all of which, when taken together, shall constitute one and the same agreement. NOW WHEREFORE, the Parties have caused this Agreement to be duly executed. IN WITNESS WHEREOF, these presents have been executed this day of , 2018. MIAMI 6286146.1 83885/87055 31 of31 NOTE: THIS DRAFT IS SUBJECT TO CHANGE PRIOR TO PUBLIC HEARING