HomeMy WebLinkAboutSubmittal -Draft Development Agreement - 11-14-2018NOTE: THIS DRAFT IS SUBJECT TO CHANGE PRIOR TO PUBLIC HEARING
As OF 11-14-18
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
DEVELOPMENT AGREEMENT BETWEEN THE CITY 0 MIAMI, FLORIDA AND
SPV REALTY, LC REGARDING DEVELOPMENT OF ® SIDE RIDGE SPECIAL
AREA PLAN
This Development Agreement (the "Agreement") executed this day of
2018, 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 colt ctively referred to
herein as the "Parties."
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
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WHEREAS, the City wishes to encourage future growth around transportation nodes
such as railroad stations and other transit corridors; and
WHEREAS, the Property is designated Low -Density Multifamily on the City's Future
Land Use Map and is zoned Urban Center (T5) as illustrated in Exhibit "B"; and
WHEREAS, Section 3.9 of the City's zoning ordinance ("Miami 21") allows for unified
properties consisting of more than nine acres in size to be master planned as a Special Area Plan
to allow greater integration of public improvements and infrastructure, and greater flexibility so
as to result in higher or specialized quality building and streetscape design within the Special
Area Plan; and
WHEREAS, on July 18, 2016, the Owner filed`"' .plications with the City to modify the
Property's land use designation and for approval of the Eastside Ridge Special Area Plan (the
"SAP") in order to regulate Redevelopment of the Property as a mixed -use transit -oriented
neighborhood and activity node consisting of residential, office, retail, medical, and civic uses;
and
WHEREAS, Redevelopment of the Property consistent with the SAP will create initial
and recurring fiscal benefits for the City including temporary and permanent jobs as well as an
increased tax base; and ®®®
WHEREAS, the Parties wish for Redevelopment of the Property to proceed under the
regulations established in the SAP Regulating Plan and Design Guidelines attached as Exhibit
"C" and consistent with the Miami Comprehensive Neighborhood Plan (the "Comprehensive
Plan") and Miami 21 where the SAP Regulating Plan and Design Guidelines are silent; and
WHEREAS, as a condition to the approval of the SAP, Miami 21 Section 3.9.1(f)
requires that the Owner enter into a Development Agreement; and
WHEREAS, "The Florida Local Government Development Agreement Act," as codified
in Sections 163.3220 through 163.3243 of the Florida Statutes (2018), authorizes local
governments to enter into development agreements with any person or entity having a legal or
equitable interest in real property located within the local government's jurisdiction, and the
Parties intend that this Agreement be consistent with the requirements of said Act; and
WHEREAS, assurance to the Owner that it may proceed in accordance with the existing
laws and policies, subject to the conditions of a Development Agreement, strengthens the public
planning process, encourages sound planning and financing of capital improvements, assists in
assuring there are adequate capital facilities for Redevelopment of the Property, encourages
private participation in comprehensive planning, and reduces economic costs of development;
and
WHEREAS, the City Commission pursuant to Ordinance No. , adopted
, 2018 has authorized the City Manager to execute this Agreement upon the terms
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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
expressly provided:
ses of thiseement, unless otherwise
(a) A defined term has the meaning assign ea to it;
(b) Words in the singular include the plural, and words in the plural inc � . i p 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
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("DBE"); an Hispanic Business Enterprise ("HBE"); or a Small Business Enterprise
("SBE"); all as generally described in Section 2-8, et seq. of the Miami -Dade County
Code of Ordinances.
"City" means the City of Miami, a municipal corporation of the State of Florida, and all
departments, boards, committees, agencies and instrumentalities subject to and
jurisdiction thereof.
"City Charter" means the municipal Charter of the City of Miami.
"City Code" or "Code" means the Code of Ordinances of the City of Miami.
"City Manager" means the City Manager or his or her designee.
"Comprehensive Plan" means the comprehensive plan known as the Miami
Comprehensive Neighborhood Plan, ("MCNP") adopted by the City pursuant to Chapter
163, Florida Statutes (2017), meeting the requirements of Section 1 3.3177, Florida
Statutes; Section 163.3178, Florida Statutes and Section 163.3221(2);iorida Statutes,
which are in effect as of the Effective Date of the Agreement.
"Consumer Price Index" or "CPI" means the Consumer Price Index for All Urban
Consumers, U.S. City Average, for all items, 1982-84 = 100 as published by the United
States Department of Labor on its website at http://www.bls.gov/cpi.
"County" means 1Vami-Dade County, a . olitical subdivision of the State of Florida.
"Design Guidelines" means the City Commission -adopted set of drawings, diagrams,
and tables that guide future development within the SAP Area. Together with the
Regulating Plan and this Agreement, the Design Guidelines provide, among other things,
the information required by Miami 21 Section 3.9.1(c) through (h). The Design
Guidelines are commonly known as the "Concept Book."
"Development" means the carrying out of any building activity, the making of any
material change in the use or appearance of any structure or land, or dividing of land into
three (3) or more parcels and such other activities described in Section 163.3221(4),
Florida Statutes (2017).
"Development Permit" includes any building permit, zoning approval, subdivision
approval, replatting, rezoning, certification, special exception, variance, Waiver, Warrant,
Exception, or any other official action of local government having the effect of permitting
the development of land.
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"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" shams can 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
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the park boundary until reaching Northeast 4th Avenue, then travelling south
along the center line of Northeast 4th Avenue until the beginning
"Miami 21" means City of Miami Ordinance 13114, effective May 2010, as amended
through January 2018.
"Owner" means SPV Realty, LC, a Florida limited liability company and its successors
and assigns.
"Park Impact Fee" means the parks and recreate �a� `� act fee provided for in Sections
13-7 and 13-12 of the City Code.
"Park Land" means those portions of the Property identified in the SAP as "Civic Space
Park" on Sheet B-4 of the Design Guidelines.
"Phase 1 Construction," "Phase 2 Construction," etc. means the stage of development
of the Property pursuant to the SAP as described in Sheet A-11 of the Design Guidelines.
"Planning Director" means the Director of the City's Planning and Zoning Department
or his or her designee.
"Property" means the approximately 22.47 acres of real 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 capitalized
term "Property" is used interchangeably with the term "SAP Area."
"Public Benefit Contributions" means the contributions required pursuant to Miami 21,
Section 3.9, provided for in Miami 21, Section 3.14 and the SAP, and described in
Section 13 of this Agreement. Such Public Benefits Contributions include, among others,
Workforce and Affordable Housing, transportation improvements, and dedicated Open
and Civic Spaces.
"Public Facilities" means major capital improvements, including, but not limited to,
transportation, sanitary sewers, solid waste, drainage, potable water, educational, parks
and recreational, streets, parking and health systems and facilities.
"Public Open Spaces" collectively means those certain areas within the Property
described on pages C-1 and D-9 of the Design Guidelines, set aside by the Owner for use
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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 procthrough 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.
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6. Intent. The Parties intend for this Agreement to be construed and implemented so as to
effectuate the purposes of the SAP Regulating Plan and Design Guidelines, this
Agreement, the Comprehensive Plan, Miami 21 where the SAP Regulating Plan and
Design Guidelines are silent, the City Charter, the City Code, and the Florida Local
Government Development Agreement Act.
7. Applicability. This Agreement only applies to the Property identified in Exhibit "A."
8. Term of Agreement, Effective Date and Binding Effect. This Agreement shall have a
term of thirty (30) years from the Effective Date and shall be extended automatically for
successive periods of ten (10) years unless released in writing by the City and the then
owners of the Property after a public hearing before the City Commission and shall be
recorded in the public records of Miami -Dade County by the Owner and filed with the
City Clerk. The term of this Agreement may be extended by mutual consent of the Parties
subject to public hearing(s), pursuant to Section 163.3225 of the Florida Statutes (2017).
This Agreement shall become effective on the Effective Date and shall constitute a
covenant running with the land that shall be binding upon, and inure to the benefit of the
Owner, its respective successors, assigns, heirs, legal representatives, and personal
representatives. If the Property or any portion thereof is submitted to condominium
ownership pursuant to the Florida Condominium Act, Chapter 718, Florida Statutes
(2018), then the association or other entity designated to represent the condominium
ownership interests as to the Property, as may be applicable, shall be the proper party or
parties to execute any such release for properties in a condominium form of ownership.
9. Land Use and Zoning Designations. Pursuant to City Ordinances and
, and in accordance with applicable legal requirements, the City has designated
the Property "Restricted Commercial" on the City's Future Land Use Map, and "Eastside
Ridge SAP" on the City's official Zoning Atlas. The SAP provides for deviations from
commonly applicable provisions of Miami 21. In approving the SAP, the City has
determined that the use, Intensit s, and Densities of development permitted thereunder
are consistent with the Comprehensive Plan, and are compatible with abutting zoning
designations and surrounding development.
10. Density, Intensity, Uses, Building Heights and Open Space.
a. As of the Effective Date, and pursuant to the SAP, the Density and Intensity
proposed for the SAP are permitted by the Existing Zoning and are consistent
with the Comprehensive Plan.
b. As of the Effective Date and pursuant to the SAP, the Uses proposed for the
Property are permitted by the Existing Zoning and are consistent with the
Comprehensive Plan.
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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, I welling 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.
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.
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12. Prohibition on Downzoning.
a. During the term of this Agreement, changes to the Comprehensive Plan or
Existing Zoning taking legal effect after the Effective Date shall not apply to the
Property unless:
i. The determinations required by Section 163.3233(2) of the Florida
Statutes (2017) have been made;
ii. The City has provided the Owner at least thirty days' written notice of its
intent to apply such regulations; and
iii. Approval by the City after a public heari as otherwise provided by
Chapter 163 of the Florida Statutes, and then only after the City has
provided thirty days' written notice to the Owner.
b. In accordance with Section 163.3245(3) Florida Statutes (2018) this prohibition
on downzoning supplements, rather than supplants, any rights that may vest to the
Owner under Florida or Federal laws. As a result, the Owner may challenge any
subsequently adopted changes to land development regulations based on:
i. Common law principles including, but not limited to: equitable estoppel,
vested rights, and contractual rights;
ii. Statutory rights which may accrue by virtue of Chapter 70, Florida
Statutes (2018), or any other Florida, or Federal statute(s); or
iii. The Miami -Dade C unty Code or laws of the City.
13. Public Benefit Contributions. In accordance with Miami 21 Section 3.9.1(f), the Owner
hereby agrees to create and retain the public benefits identified in this Section. The public
benefits set forth in this Section may serve to satisfy the public benefits identified in the
SAP or the in -kind public benefit contributions identified in Miami 21, Section 3.14. The
public benefits set forth in this Section may be provided in phases as and when the
various portions of the SAP are developed.
a. Promoting the Little Haiti Community. The Little Haiti community faces a
series of economic and social challenges including a pressing need for affordable
housing, educational opportunities, small business growth, and assistance with
immigration services to preserve unity. Owner, as an existing member of the
community, wishes to assist Little Haiti's residents confront those challenges as
follows:
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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 BTU= ®ss
4. Promoting Haitian Culture, Art, and Langua
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:
. 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
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.
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c. Phase 1 Building Permit. $750,000 or 7.5% will be paid after the
City issues a Building Permit for construction of Phase 1 and
applicable appeal periods expire.
d. Phase 1 Certificate of Occupancy. $1,000,000 or 10% will be paid
after the City issues final Certificate of Occupancy for construction of
Phase 1 and any applicable appeal periods expire.
e. Phase 2 Development Approval. $500,000 or 5% will be paid after
the City issues necessary development approvals for Phase 2
construction and applicable appeal periods expire.
£ Phase 2 Building Permit. $750,000 or 7.5% will be paid after the
City issues a Building Permit for construction of Phase 2 and
applicable appeal periods expire.
Phase 2 Certificate of Occupancy. $1,000,000 or 10% will be paid
after the City issues final Certificate of Occupancy for construction of
Phase 2 and any applicable appeal periods expire.
h. Phase 3 Development Approval. $500,000 or 5% will be paid after
the City issues necessary development approvals for Phase 3
construction and applicable appeal periods expire.
i. Phase 3 Building Permit. $1,000,000 or 10% will be paid after the
City issues a Building Permit for construction of Phase 3 and
applicable appeal periods expire.
Phase 3 Certificate of Occupancy. $1,000,000 or 10% will be paid
after the City issues final Certificate of Occupancy for construction of
Phase 3 and any applicable appeal periods expire.
k. Phase 4 Development Approval. $500,000 or 5% will be paid after
the City issues necessary development approvals for Phase 4
construction and applicable appeal periods expire.
g.
Phase 4 Building Permit. $1,000,000 or 10% will be paid after the
City issues a Building Permit for construction of Phase 4 and
applicable appeal periods expire.
m. Phase 4 Certificate of Occupancy. $1,000,000 or 10% will be paid
after the City issues final Certificate of Occupancy for construction of
Phase 4 and any applicable appeal periods expire.
v. Community Leadership. The use of Capital Contribution funds will be
directed and supervised by a board made up of representatives of the Little
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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 Nam• borhd 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).
. 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:
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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
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3. Third priority: Zip codes 33128, 33130, 33134, 33142, 33125,
33135, and that portion of the zip codes 33133 and 33146
commonly known as "West Coconut Grove"
4. Fourth priority: Areas of the City not identified subparagraphs a-c
above.
The above priority list is referred to herein as the "Tiered Priority
Areas." Each individual priority area is referred to as the first
Tiered Priority Area, the second Tiered Priority Area, and so on.
ii. Hiring Goals: Construction Jobs. Owner shall comply with the
following subcontractor participation requirements and laborer
participation requirements (the "Participation Requirements") with
respect to the Redevelopment of the Property:
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1. Subcontractor Participation.
a. The Owner shall require their general contractor(s) to
assign a minimum of 5% of the construction contract value
to subcontractors that are Certified Minority Enterprise(s).
For purposes of calculating the subcontractor participation,
the percentage of participation shall be calculated based
upon the numerator being the dollar value of all
subcontracts given to subcontractors and the denominator
being the total dollar value of all subcontracts entered into
by the general contractor(s) over the entire course of the
Property's redevelopment pursuant to the SAP.
Additionally, the Owner shall require their general
contractor(s) to use all commercially reasonable efforts to
hire qualified subcontractors in accordance with the Tiered
Priority Areas by first seeking subcontractor(s) having
offices in the first Tiered Priority Area, before expanding
their search to the second area, and so forth. The Owner's
general contractor(s) shall attempt to fulfill this
requirement within the first priority area for at least one
month before expanding its search to lower priority areas.
The general contractor(s) may expand from the second
priority area to the third and so forth only after search in
each lower priority area for at least two weeks.
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2. 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'ity 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.
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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
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expanding its search to the second Tiered Priority Area, and so
forth.
2. Employment by Tenants of Owner. Owner shall require each
tenant conducting business at the Property to make best efforts 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. Tenants will be required to seek
qualified employees in the first Tiered Priority Area for no less
than 30 days before expanding its search to the second Tiered
Priority Area and so forth.
iv. Employment Policies. In connection with the Redevelopment of the
Property, the Owner agrees that they and their general contractor(s) will:
MIAMI 6083591.1 83885/87055
1. Take action in the effort to recruit, advertise, attract and retain
minority and female contractors and subcontractors.
2. Provide a reasonable opportunity in the recruitment, advertising
and hiring of professionals, contractors and subcontractors residing
within the certain target areas of the City according to Tiered
Priority Areas.
Take reasonable action in retaining employees regardless of race,
color, place of birth, religion, national origin, sex, age, sexual
orientation, gender identity, marital status, veterans and disability
status.;
4. Maintain equitable principles in the recruitment, advertising,
hiring, upgrading, transfer, layoff, termination, compensation and
all other terms, conditions and privileges of employment.
Monitor and review all personnel practices to guarantee that equal
opportunities are being provided to all employees regardless of
race, color, place of birth, religion, national origin, sex, age, sexual
orientation, gender identify, marital status, veterans and disability
status.
6. Post in conspicuous places, availability to employees and
applicants for employment, notices, setting forth the non-
discrimination clauses of this Section.
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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 Housings
i. Owner agrees to set aside 10% of the total residential dwelling units
constructed at the Property as Workforce Housing.
ii. The Owner sha'=""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
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for and offered to residents of those buildings proposed to be demolished in
connection with construction of Phase 1 of the SAP whose leases extend beyond
the date of evacuation associated with the proposed demolition.
i. Vacated rental units will be made available to said residents at the same
terms of their existing rental agreement.
ii. Owner will provide moving assistance to those residents of Design Place
that opt to relocate to vacated units elsewhere on the Property. Assistance
will be limited to the movement of personal belongings from the existing
unit to the temporary unit.
iii. When construction of Phase 1 of the SAP is completed, residents relocated
from Design Place will be given an opportunity to relocate to Phase 1 of
the SAP. Owner will allow residents who decide to relocate to Phase I of
the SAP to lease a new unit in Phase <1 at their existing rent for no less
than one year. Owner will provide assistance to those residents in moving
their personal = ,_gings from the temporary unit to their new rental unit
within Phase
e. Transportation and Traffic Improvements.
i. Train Station.
Owner agrees to make all commercially reasonable efforts to
secure construction of a train station for local and tri-county
passenger service in substantial compliance with the SFRTA's
proposal for its Tri-Coastal Link passenger rail line.
If successful in obtaining all approvals necessary for construction
of a train station, Owner will negotiate with relevant parties to
finalize the design, construction, operation, and maintenance of the
station on the Property.
ii. Trolley Stops. The Owner will seek the necessary approvals to extend
City of Miami trolley routes into the Property. If the extension of such
routes are approved by the City, the Owner will, at its sole cost, construct
the improvements necessary to provide up to two trolley stops within the
Property in substantial compliance with Sheet of the Design
Guidelines.
iii. Adjacent Traffic Improvements Along NE 2 Avenue. The
Owner will realign the existing two (2) offset signalized
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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 Count and FDOT.
v. FEC Greenway. The Owner sha truct 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 S i ace.
i. To encourage com unity 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.
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iii. Such reservations shall be managed through the Owner's management
office and shall be limited to no more than one reservation per month for
each non-profit organization.
Miami Police Substation. The Owner agrees to provide between 1,500 and 2,000
square feet within the SAP for use as a City of Miami Police Substation
("Substation Space").
i. Term. The Owner shall provide the Substation Space for a term of up to
thirty (30) years with a right of renewal thereafter by mutual agreement of
the Parties.
ii. Rent. The City shall pay the Owner an annual rent of $1.00 for up to thirty
(30) years, with the rent to be determined by mutual agreement of the
Parties thereafter.
iii. Timing. The Substation Space shall be provided prior to obtaining a
Certificate of Occupancy for any structure located within the final SAP
phase to be constructed.
iv. Utilities and Ongoing Expenses. The City shall be responsible for the
payment of all utilities (including but not limited to electricity, water and
sewer services, telecommunication services, and gas) whether private or
public, and operational expenses (including but not limited to maintenance
costs) directly serving and attributable to the use of the Substation Space.
The Owner shall install separate meters for electrical and water utilities for
the Substation Space at the Owner's sole cost and expense.
v. Nuisance. The lease for t Substation Space shall expressly prohibit the
use of sirens by incoming and outgoing service vehicles in order to avoid
disturbing residents or tenants of the Property or their visitors and guests.
Public Open Spaces. The Owner agrees to provide publicly accessible open
spaces in the SAP Area ("Public Open Spaces") in excess of the minimum Open
Space and Civic Space requirements of Miami 21 and the SAP, as follows:
i. Minimum Open and Civic Space. The Owner agrees to provide a
minimum area of approximately 294,945 square feet of Open Space where
only 97,905 square feet are required and 215,493 square feet of Civic
Space where only 48,952.5 square feet are required, in substantial
accordance with this Agreement, the Regulating Plan, and the Design
Guidelines, as reduced by any future right-of-ways depicted in the SAP.
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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 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. 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.
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.
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
from the City. Such events shall be held no more than twice per month,
excluding the Little Haiti Green Market, which shall be permitted once per
week subject to the restrictions in the SAP Regulating Plan.
v. Maintenance. The Owner shall maintain, operate, and supervise the
Public Open Spaces.
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vi. Phasing. The Public Open Spaces depicted in the SAP may be provided in
phases as and when the various portions of the SAP are developed.
vii. Landscape Improvements In Public Right -of -Way. The Owner shall
landscape and construct improvements to certain rights -of -way
immediately fronting the Property in substantial accordance with Sheets
through of the Design Guidelines. In order to further foster a
uniform aesthetic between the SAP Area and surrounding areas, the
Owner agrees to coordinate landscaping and right-of-way design and
improvements with the Department of Public Works and Miami Jewish
Health Systems. The proposed right-of-way improvements described
herein shall be reviewed and approved by the City's Planning Department,
Zoning Department, and Public Works Department and shall apply to the
NE 2nd Avenue and NE 54th Street improvements identified in this
Agreement.
viii. Parks Impact Fee Credit. The Parties agree that in consideration of the
Owner's contribution of the Public Open Spaces and construction of
related improvements to said spaces, the City will grant the Owner the
credit against the impact fees in connection with Redevelopment of the
Proper as follows:
The City finds that "`the&arc Open Spaces and related
improvements provide more land, Open Space, enhancements, and
landscape and hardscape features than necessary to accommodate
the demand for park and recreation facilities generated by the
residential component of the SAP. Accordingly, the City shall
review the Owner's impact fee petition and shall grant the Owner
credit in the amount of their ascertainable contribution against the
Parks Impact Fee or other impact fees otherwise due pursuant to
Sections 13-9, 13-10, 13-11, 13-12, 13-13, and 13-14 of the City
Code for the overall Redevelopment of the Property including any
residential component of the SAP.
i. Arts and Culture. The Owner agrees to collaborate with local arts groups,
including but not limited to the Miami -Dade College of Music, the Hattian
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
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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.
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.
Total diameter of tree(s)
(sum of inches
Tree Replacement Chart
to be removed
at DBH)
Total inches of replacement DBH
required (12' minimum tree height)
2"
—3"
2"
4"
—6"
4"
7" —12"
8"
13"
—18"
12"
19"
—24"
16"
25"
—30"
20"
31"
—36"
24"
37"
—42"
28"
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43"
—48"
32"
49"
—60"
40"
To determine whether the replacement requirements have been satisfied,
calculated the total sum in in inches of the diameter of the trees removed. The size
of the replacement trees diameter at breast height (DBH) must equal the total
inches of replacement DBH set forth in the above chart. Diameter measurements
shall be rounded up to the nearest inch. If the sum of the diameter of trees to be
removed exceeds a total of 60 inches, the additional inches shall be added
cumulatively from the top of the chart, down to the bottom of the chart to
calculate the number of DBH for replacement trees.
15. Valet Parking. The Owner may establish a valet system to service the SAP Area
generally. In accordance with Sections 35-305 and 35-306 of the City Code, as amended,
the maximum allowed valet permits may be issued for the operation of a valet parking
area on the same side of the block where the permit applicant is the operator of the
uniform valet system.
16. Interim Parking. For the purposes of accommodating the phased Redevelopment of the
Property, interim and temporary parking on unimproved and partially improved lots may
be permitted in order to satisfy required off-street parking under Existing Zoning and the
Regulating Plan. Notwithstanding the requirements of Section 62-543 and 62-544 of the
Code, interim parking may be permitted in the SAP Area without having to comply with
permanent parking requirements on the proposed interim parking lots. The Planning
Director may approve the design of the interim parking lots prior to issuance of a
building permit for improvements.
17. Replatting, Street Closure, and Dedications. To the extent necessary, the Owner shall
seek the vacation and closure of various rights -of -way located in the SAP Area and
dedicated new rights -of -way to reflect the network described in the Design Guidelines.
For such vacations, closures, or new rights -of -way within the Park Land subsequent to its
conveyance to the City, the Owner shall submit and process all necessary applications
with the City as applicant.
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
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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;
(b) Covenant or Unity or Title acceptance;
(c) Building and Public Works permits;
(d) Certificates of use and/or occupancy;
(e) Stormwater Permits; and
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(f) Any other official action of the City, County, or any other government agency having
the effect of permitting development of the Property.
23. Compliance with Regulations Relative to Development Permits. The Parties agree
that the failure of this Agreement to address a particular permit, condition, fee, term
license or restriction in effect on the Effective Date shall not relieve the Owner of the
necessity of complying with the regulation governing said permitting requirements,
conditions, fees, terms, licenses, or restrictions.
24. Cooperation; Expedited Permitting and Time is of the Essence. The Parties agree to
cooperate with each other to the full extent practicable pursuant to the terms and
conditions of this Agreement. The Parties agree that time is of the essence in all aspects
of their respective and mutual responsibilities pursuant to this Agreement. The City shall
use its best efforts to expedite the permitting and approval process in an effort to assist
the Owner in achieving its development and construction milestones. The City will
accommodate requests from the Owner's general contractor(s) and subcontractors for
review of phased or multiple permitting packages, such as those for excavation, site work
and foundations, building shell, core, and interiors. In addition, the City will designate an
individual within the City Manager's Office who will have a primary (though not
exclusive) duty to serve as the City's point of contact and liaison with the Owner in order
to facilitate expediting the processing and issuance of all permit and license applications
and approvals across all of the various departments and offices of the City which have the
authority or right to review and approve all applications for such permits and licenses.
25. Reservation of Development Rights.
(a) For the term of this Agreement, the City hereby agrees that it shall permit the
Development of the Property in accordance with the Comprehensive Plan, the SAP
Regulating Plan, Miami 21 where the SAP Regulating Plan and Design Guidelines
are silent, and this Agreement, as of the Effective Date.
(b) The expiration or termination of this Agreement shall not be considered a waiver of,
or limitation upon, the rights, including, but not limited to, any claims of vested rights
or equitable estoppel, obtained or held by the Owner or its successors or assigns to
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
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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.
With a copy to:
City Manager; f Miami
3500 Pan American Drive
Miami, Florida 33133
City Attorney, City of Miami
Miami Riverside Center
444 S.W. 2nd Ave., 9th Floor
Miami, Florida 33130
SPV Realty, LC
ATTN: Kevin Fabricant
12000 Biscayne, Suite 609
North Miami, FL 33181
Bilzin Sumberg Baena Price and Axelrod, LLP
ATTN: A. Vicky Leiva
1450 Brickell Avenue, Suite 2300
Miami, Florida 33131
Any Party to this Agreement may change its notification address(es) by providing written
notification to the remaining parties pursuant to the terms and conditions of this section.
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28. Multiple Ownership. In the event of multiple ownership subsequent to the approval of
the Application, each of the subsequent owners, mortgagees and other successors in
interest in and to the Property (or any portion thereof, including condominium unit
owners) shall be bound by the terms and provisions of this Agreement as covenants that
run with the Property.
29. Common Area Maintenance. The Owner shall create, prior to the conveyance of any
portion of the Property (less than the entire Property), an association or other entity that
shall provide for the maintenance of all common areas, private roadways, cross -
easements and other amenities common to the Property. This Agreement shall not
preclude other owner(s) of portions of the Property from maintaining their own buildings
or common areas not common to the Property outside the control of said association. The
instrument creating the association o; other entity shall be subject to the reasonable
approval of the City Attorney.
30. Modification. This Agreement may be modified, amended, or released as to any portion
of the Property by a written instrument executed by the then -owners of the Property,
including joinders of all mortgagees, if any, provided the same is also approved by the
City, after public hearing. In the event there is a recorded homeowners or condominium
association covering any portion of the Property, said association may (in lieu of the
signature consent of the individual member or owners), on behalf of its members and in
accordance with its articles of incorporation and bylaws, consent to any proposed
modification, amendment, or release by a written instrument executed by the
homeowners or condominium association. Any consent made pursuant to a vote of the
homeowners or condominium association shall be evidence by a written resolution of the
homeowners or condominium association and a certification executed by the secretary of
the homeowners or condominium association's board of directors affirming that the vote
complied with the articles of incorporation and the bylaws of the association.
31. Enforcement. The City and the Owner, its successors or assigns, shall have the right to
enforce the provisions of 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.
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
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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 prompted by legislative action, the
Parties shall continue to honor the terms and condit' f this Agreement to the extent
allowed by law.
34. Severability. Invalidation of any of the sec dins, 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.
(c) It shall not be a default under this Agreement if either party is declared bankrupt by a
court of competent jurisdiction. All rights and obligations in this Agreement shall
survive such bankruptcy of either party. The Parties hereby forfeit any right to
terminate this Agreement upon the bankruptcy of the other party.
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36. Remedies.
(a) Neither Party may terminate this Agreement upon the default of the other Party, but
shall have all of the remedies enumerated herein.
(b) Upon the occurrence of a default by a Party to this Agreement not cured within the
applicable grace period, the Parties agree that any Party may seek specific
performance of this Agreement and that seeking specific performance shall not waive
any right of such Party to also seek monetary damages, injunctive relief or any other
relief other than termination of this Agreement. The City hereby acknowledges that
any claim for damages under this Agreement is not limited by sovereign immunity or
similar limitation of liability.
37. Obligations Surviving Termination. Notwithstanding and prevailing over 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 full
force and effect until the expiration of a one (1) year term following the earlier of the
effective date of such termination or the expiration of the Term; (i) the exclusive venue
and choice of law provisions contained herein; (ii) rights of any party arising during or
attributable to the period prior to expiration or earlier termination of this Agreement, and
(iii) any other term or provision herein which expressly indicate either that it survives the
termination or expiration here of or is or may be applicable or effective beyond the
expiration or permitted early termination hereof.
38. Merger. This Agreement and the exhibits and appendices appended hereto and
incorporated herein by reference, if any, constitute the entire Agreement between the
Parties with respect to the subject matter hereof. This Agreement supersedes any prior
agreements or understandings between the Parties with respect to the subject matter
hereof, and no change, modification, or discharge hereof in whole or in part shall be
effective unless such change, modification or discharge is in writing and signed by the
party against whom enforcement of the change, modification or discharge is sought. This
Agreement cannot be changed or terminated orally.
39. Successors, Assigns, and Designees. The covenants and obligations set forth in this
Agreement shall extend to the Parties and their successor(s) and/or assigns. 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.
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
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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.
411.16
NOW WHEREFORE, the Parties have caused this Agreement to be duly executed.
IN WITNESS WHEREOF, these presents have been executed this day of , 2018.
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