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Development Agreement - Updated 08-15-2021
This Instrument was Prepared by, and After Recording Should be Returned to: Ben J. Fernandez, Esq. Bercow Radell Fernandez Larkin & Tapanes, PLLC 200 South Biscayne Boulevard, Suite 300 Miami, Florida 33131 (Space for Reserved for Clerk) DEVELOPMENT AGREEMENT BETWEEN THE CITY OF MIAMI, FLORIDA AND SPV REALTY, LC REGARDING DEVELOPMENT OF SABAL PALM VILLAGE SPECIAL AREA PLAN This Development Agreement (the "Agreement") is entered and executed this day of , 2021, by and 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 2 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, Article 3, Section 3.9 of the City's zoning ordinance ("Miami 21") allows for unified properties consisting of more than nine (9) acres in size to be master planned 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; and WHEREAS, the result of this master planning process is known as a "Special Area Plan"; and WHEREAS, on July 18, 2016, the Owner filed applications with the City to modify the Property's land use designation and recently submitted a revised application for approval of the Sabal Palm Village Special Area Plan (SAP) in order to regulate redevelopment of the Property as a mixed -use 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 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 is developed with outdated two-story apartment buildings that are nonconforming with current Miami 21 regulations; and WHEREAS, the Property's location provides an opportunity to create an architectural and cultural connection between the Little Haiti, Buena Vista East, and Design District neighborhoods; and WHEREAS, the Property's location along NE 54 Street, the FEC Railway, and the NE 2 Avenue Miami Trolley Route, as well as its proximity to Biscayne Boulevard makes 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 by incorporating Haitian cultural elements into both its use and design; and WHEREAS, the Owner intends to contribute to the revitalization of the Property and the surrounding communities by providing improvements to areas abutting the Property that will encourage pedestrianism and improve bicycle mobility in and around the Property; and WHEREAS, the Owner intends to create a publicly accessible pathway known as the Miami Loop's Flagler Trail through the SAP area abutting the Florida East Coast (FEC) Greenway to encourage additional walkability and bicycle ridership in the SAP area; and WHEREAS, the SAP will contribute to the local community by providing approximately 4.48 acres of civic space within the SAP area including 1.6 acres of land that will be improved and dedicated to the City of Miami as a public park; and WHEREAS, the Owner has requested that the public park area ("Park Area") be rezoned from Urban Center ("T5") to the Civic Space ("CS") transect zone together with the SAP rezoning approval; and WHEREAS, the Property's location abutting a Transit Corridor and abutting a planned Priority Corridor will allow for efficient access by multiple modes of transit; and WHEREAS, the proposed project will revitalize the area by creating a well -planned pedestrian -oriented mixed -use neighborhood that furthers the City's goals of creating a pedestrian -oriented and bicycle friendly neighborhoods; and WHEREAS, the Owner wishes to contribute to the local community and help to address the community needs by making monetary contributions to ,the Little Haiti Revitalization Trust and the Miami Dade Chamber of Commerce; and WHEREAS, the Property is designated Medium -Density Multifamily Residential on the City's Future Land Use Map and is zoned Urban Center (T5-R) as illustrated in Exhibit B; 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, the Zoning Code of the City as defined in this Agreement, 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 (2020), 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 Legislative File Identification Number , 2021 approved and has authorized the City Manager to execute this Agreement upon the terms 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 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. f. The Parties hereto agree that this Agreement shall not be more strictly construed against either the City or the Developer, as all parties are drafters of 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 one hundred percent (100%) 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 ("DBE"); a 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 via Ordinance No. 10544 pursuant to Chapter 163, Florida Statutes (2017), meeting the requirements of Section 163.3177, Florida Statutes; Section 163.3178, Florida Statutes and Section 163.3221(2), Florida 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 Miami -Dade County, a political 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. "Effective Date" is the recordation date 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 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 (2020). "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 54 Street and Northeast 4 Avenue, travelling westward along the midblock line between Northeast 54 Street and the street parallel to the south, until it meets Interstate 1-95, then travelling northward along the center line of Interstate 1-95, until meeting the boundary of the City of Miami, then turning and traveling eastward along the midblock line to include the frontage of Northwest 79 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 2 Avenue, then travelling southward along the midblock line between Northeast 2 Avenue and the street running parallel to the east, to include the eastern frontage of Northeast 2 Avenue, until reaching the northern boundary of Little Haiti Park, then following the park boundary until reaching Northeast 4 Avenue, then travelling south along the center line of Northeast 4 Avenue until the beginning. "Miami 21" means City of Miami Ordinance 13114, effective May 2010 as amended. "Owner" means SPV Realty, LC, a Florida limited liability company, and its successors and assigns. "Park Impact Fee" means the parks and recreation impact fee provided for in Chapter 13 of the City Code. "Park Land" means those portions of the Property identified in the SAP as "Civic Space Park" on Sheet 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 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 54 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 2 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, Bicycle Route improvements, 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-1 of the Design Guidelines, set aside by the Owner for use as public Open Space and/or open Civic Space, and consisting of a combined area of approximately 444,195 square feet. Public Open Space shall generally be unimproved by permanent buildings, open to the sky and reserved for public use, as further provided and modified by the Agreement, the Concept Book and Regulating Plan. "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 Sabal Palm Village 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 sixty percent (60%) and one hundred percent (100%) 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, Article 3, Section 3.9.1(f) by, among other things, providing for the creation and retention of certain public benefits; and b. To authorize Redevelopment of the Property pursuant to Sabal Palm Village SAP; 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. 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. This Agreement is intended to satisfy the requirements of Section 3.9.1.f., Miami 21. 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 unless released in writing by the City and the then owners of the Property after public hearing before the City Commission pursuant to Florida Statutes 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 (2020). 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 (2020), 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 "Recreation" and "Restricted Commercial" on the City's Future Land Use Map, and CS, T5-O and T6-12-0 on the City's official Zoning Atlas. The SAP allows for deviations from commonly applicable provisions of Miami 21 in order to achieve a unique urban area. In approving the SAP, the City has determined that the Use, Intensities, 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. 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. Future development within the SAP Application Area shall proceed pursuant to the Regulating Plan and Design Guidelines. The criteria to be used in determining whether future development shall be approved is: (a) consistency with the Comprehensive Plan, (b) this Agreement, (c) and the Sabal Palm Village SAP. The Comprehensive Plan, this Agreement, and the Sabal Palm Village SAP shall govern development of the SAP Application Area for the duration of the Agreement. Any modifications to the Project plans or this Agreement shall be approved in accordance with the Sabal Palm Village SAP Regulating Plan and Design Guidelines. The City's laws and policies adopted after the Effective Date may be applied to the SAP Application Area only if the determinations required by Section 163.3233(2), Florida Statutes (2020), have been made after thirty (30) days written notice to the Developer and at a public hearing. Pursuant to Section 163.3245(3), Florida Statutes (2020), this prohibition on down zoning supplements, rather than supplants, any rights that may vest to the Developer under Florida or Federal laws. As a result, the Developer may challenge any subsequently adopted changes to land development regulations based on (a) common law principles including, but not limited to, equitable estoppel and vested rights, or (b) statutory rights which may accrue by virtue of Chapter 70, Florida Statutes (2020). a. Site Plan. The Property will be developed and used substantially in compliance with a compilation of plans, including, specifically, architectural plans entitled "Sabal Palm Village at Flagler Trail," as prepared by Kobi Karp Architecture and Interior Design, Inc., and the landscape plans as prepared by Kimley Horn and Associates, Inc. All the foregoing plans are collectively referred to in this Agreement as the "Project" and are described in detail by plans on file with the City Clerk and are deemed to be incorporated by reference. "Substantially in compliance," for purposes of this Agreement, shall be determined by the City Planning and Zoning Director, pursuant to Section 7.1.3.5 of Miami 21. 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 an 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. 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 (2020) 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 hearing or 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 (2020), 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 (2020), or any other Florida, or Federal statute(s); or iii. The Miami -Dade County Code or laws of the City. 13. Public Benefit Capital Contribution. In accordance with Miami 21 Article 3, Section 3.9.1(f), the Owner hereby agrees to create and retain the public benefits identified in this Section and detailed on Exhibit D. The public benefits set forth in this Section and detailed on Exhibit D 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 and detailed on Exhibit D 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. Owner, as an existing member of the community, wishes to assist Little Haiti's residents confront those challenges as follows: i. Capital Contribution. Owner agrees to invest ten million dollars ($10,000,000) (the "Capital Contribution") as outlined on Exhibit D to this Development Agreement and subject to the terms of this Section. ii. Use of Capital Contribution. The purposes for which the Capital Contribution may be used will be limited to the specific projects, programs, and corresponding amounts as outlined on Exhibit D within the Little Haiti Area in the following categories: 1. Co -working and business incubation center or Haitian and local area businesses. 2. Residential and Business Beautification and Renovation Program 3. Education and Vocational Training Scholarships 4. Promotion of Haitian Culture, Art, and Language 5. Sponsoring and promoting the Little Haiti FC, 501 (c) organization 6. Citizens Neighborhood Patrol for the area surrounding Sabal Palm Village 7. Post -Project Business Development Loan Program The specific projects, programs, and amounts and schedule of payments outlined on Exhibit D may be amended over time to adjust for changing community priorities and needs, by Resolution of the City Commission. iii. Installments. The Capital Contribution shall be made payable to The Little Haiti Community Revitalization Trust 10 days following the expiration of all applicable appeal periods and then distributed to the the Miami -Dade Chamber of Commerce, and the Little Haiti Soccer Program in accordance with the Commission's approval, signature by Owner and the schedule outlined on Exhibit D. 1. The Little Haiti Community Revitalization and the Miami -Dade Chamber of Commerce shall administer the Capital Contribution, provided they are subject to audit by the City relative to their respective administration of said Capital Contribution. 14. 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: a. Minimum Open and Civic Space. The Owner agrees to provide a minimum area of approximately 248,923 square feet of Open Space where only 90,877 square feet are required and 195,272 square feet of Civic Space where only 45,438 square feet are required, in substantial accordance with this Agreement, the Regulating Plan, and the Design Guidelines, as reduced by any future rights -of -way depicted in the SAP. b. 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-11 of the Design Guidelines), or as otherwise mutually agreed by the Parties. c. Dedication of Park Area. The Owner shall improve and convey to the City of Miami the approximately 1.6-acre Park and Botanical Garden Area located along NE 2 Avenue identified in the SAP as "Dedicated Park Area" on Sheet B-6 of the Design Guidelines. The Park Area shall be conveyed to the City within 180 days after issuance of the final Certificate of Occupancy for the First Phase of the SAP. d. Condition of Park Area. At time of conveyance, the Park Area shall be improved in substantial compliance with the Design Guidelines. The Park Area shall also contain a playground and an area dedicated for use as a dog park. e. Use and Reversionary Interest. The City shall use the Park Area only for passive public park purposes. No improvements or leases shall encumber the Park Area. Owner shall retain a reversionary interest in said Park Area. Should the City cease to use the Park Area for public park purposes, the Park Area shall revert to the Owner by operation of law. The instruments conveying the Park Area shall contain all restrictions. 15. Community Events. The Owner may sponsor or partner with organizations to hold temporary and special events within the SAP Area, including in and around the Public Open Space pursuant to the terms of this Agreement, the Regulating Plan and the applicable provisions of the City Code. All temporary uses or special events within the SAP Area, inclusive of the Park Area 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 on Saturdays and Sundays subject to the restrictions in the SAP Regulating Plan. 16. 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, as well as off -site transportation improvements, the City will grant the Owner the credit against the impact fees in connection with Redevelopment of the Property as follows: a. Park Impact Fee. The City finds that the Public 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 Chapter 13 of the City Code for the overall Redevelopment of the Property including any residential component of the SAP. b. Road Impact Fee. The City also finds that the Owner intends to provide certain off -site roadway improvements and traffic calming improvements in order to enhance areawide vehicular circulation and pedestrian safety above and beyond the Project's impact, as detailed in Exhibit D-1 . Upon approval from Miami -Dade County of credit in lieu of impact fees, the Owner shall design, permit and construct the following off -site improvements: i. A raised intersection at the intersection of NE 4 Court and NE 73 Street and at the intersection of NE 5 Avenue and NE 64 Street , NE 71 Street and NE 74 street; ii. A speed table at the following locations in Palm Grove Historic District: west of Biscayne Boulevard along NE 64 Street, NE 65 Street, NE 67 Street, NE 68 Street, NE 69 Street, NE 70 Street, NE 72 Street, NE 73 Street, NE 76 Street and NE 77 Street. ; iii. A traffic circle at NE 59 Street and NE 4 Court; iv. An enhanced rapid rectangular flashing beacon to create an enhanced crosswalk on NE 4 Court on the north side of NE 76 Street; and, v. Re -alignment of NE 3 Avenue on the north and south side of NE 54 Street. 17. Arts and Culture. The Owner shall accommodate the Little Haiti Green Market at least once a month, on a Saturday or Sunday, within the Public Open Space providing spaces for local vendors selling arts, crafts, plants, or food and beverages, and featuring musical performances and dance exhibitions. 18. Job Creation and Employment Opportunities. The Owner shall use diligent, good faith efforts to coordinate with the immediate community to achieve or to cause its general contractor(s) and subcontractors, (collectively, the "Contractors") to provide employment opportunities, to the immediate area, to the extent commercially feasible and subject to availability, qualifications and price: The Developer and its Contractors, as applicable, shall adhere to the following descending hierarchy with respect to hiring objectives and practices within the SAP Area.: 1. Residents of Little Haiti neighborhood in zip codes: 33137, 33138, 33150, and 33127. 2. Residents of the City of Miami. 2. The Owner agrees that the individuals will be employed based on the hierarchy established above. For purposes of clarity, the intent is to encourage the Owner and its Contractors to hire qualified persons from Little Haiti to work on the Project. 19. Local Contracting Commitment. The Owner and its Contractors, shall use diligent, good faith efforts in the retaining of subcontractors for the Project, to the extent commercially feasible and subject to availability qualifications and price, utilizing the same descending hierarchy of target areas: a. Businesses with an address located in the Little Haiti neighborhood in the following zip codes: 33137, 33138, 33150, and 33127. b. Residents of the City of Miami. 20. Workforce Housing. The Owner shall include Workforce Housing units in each phase of the Property's development as those phases are described in Sheet A-9 of the Design Guidelines. a. Owner agrees to provide a minimum of 512 Workforce Housing Units in four (4) phases of development. One hundred twenty-eight (128) Workforce Housing units will be developed per phase. The units will be offered at one hundred percent (100%) Area Median Income (AMI), as published by the United States Department of Housing and Urban Development and certified by the Department of Community and Economic Development. b. 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 available in the future before the development occurs. 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. 21. Relocation Assistance. For at least six (6) months prior to the demolition of any residential building located on the Property, Owner will stop leasing existing rental units in order that vacated units will be reserved 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. a. Vacated rental units will be offered to said residents at the same terms of their existing rental agreement. b. Residents that opt to relocated to vacated units elsewhere on the Property, will be provided moving assistance in the form of a relocation stipend of $600 and right of first refusal as to new units. Assistance will also be provided in the movement of personal belongings from the existing unit to the temporary unit. Owner may commence to rent a vacated reserved unit to the general public, only if a resident in the proposed Design Place building to be demolished opts not to relocate to another building within Design Place. c. When construction of Phase 1 of the SAP is completed, residents relocated from Design Place will be invited 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 current rent at that time for no less than one year. Owner will provide assistance to those residents in moving their personal belongings from the temporary unit to their new rental unit within Phase 1. 22. Transportation and Traffic Improvements. a. 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 (2) trolley stops within the Property in substantial compliance with Sheet B-10 of the Design Guidelines. b. Adjacent Traffic Improvements Along NE 2 Avenue. The Owner will realign the existing two (2) offset signalized intersections at NE 51 Street and NE 2 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. c. Traffic Improvements Along NE 54 Street. The Owner will construct right- of-way improvements along NE 54 Street in substantial compliance with Sheet B-6__ of the Design Guidelines and the City's Traffic Sufficiency letter dated August 8, 2016, a copy of which is attached as Exhibit E. Such improvements shall include: i. Creation of a new median along NE 54 Street; ii. 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 iii. Installation of new crosswalks with differentiated surfaces designed to calm traffic speeds. As NE 54 Street is a Florida Department of Transportation (FDOT) maintained roadway, the above improvements shall be subject to approval by Miami -Dade County and FDOT. iv. The Owner shall construct that portion of the Miami LOOP "Flagler Trail" FEC Greenway adjacent to the Property, which includes pedestrian and bicycle paths, as described on Sheet L-11 of the Design Guidelines. Said construction shall take place concurrently with construction of the abutting phase of the SAP. d. 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 the first 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 the 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. 23. 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 Resilience and 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 agrees 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 Chart 17.6.1.1 in the City Code. 1 Tree Replacement Chart 1 Total diameter of tree(s) to be removed (sum of inches 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" 43" —48" 32" 49" —60" 40" d. 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. 24. 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. 25. 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. 26. 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, and pay all costs associated with all necessary applications with the City as applicant. 27. Retail Specialty Center Designation. Pursuant to Chapter 4 of the City Code, the SAP is hereby designated as two (2) "Retail Specialty Centers." 28. Alcoholic Beverage Sales. Notwithstanding the requirements of Section 4-3.2 of the Code or anything to the contrary in Miami 21, the 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. 29. 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 A9 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. 30. 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. 31. 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. 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; and b. Covenant or Unity or Title acceptance; and c. Building and Public Works permits; and d. Certificates of use and/or occupancy; and e. Stormwater Permits; and f. Any other official action of the City, County, or any other government agency having the effect of permitting development of the Property. In the event that the City substantially modifies its land development regulations regarding site plan approval procedures, authority to approve any site plan for a project in the SAP Application Area shall be vested solely in the City Manager, with the recommendation of the Planning and Zoning Director. Any such site plan shall be approved if it meets the requirements and criteria of the Zoning, the Comprehensive Plan and the terms of this Agreement. 32. 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. Pursuant to Section 163.3241, Florida Statutes (2020), if state or federal laws are enacted after the execution of this development agreement which are applicable to and preclude the parties' compliance with the terms of this development agreement, this Agreement shall be modified or revoked as is necessary to comply with the relevant state or federal laws. 33 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. 34. 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. The City's laws and policies adopted after the Effective Date may be applied to the Property only if the determinations required by s. 163.3233(2), Florida Statutes (2020) have been made following a public hearing or as otherwise provided herein. b. Nothing herein shall prohibit an increase in density or intensity of development permitted in the SAP Application Area in a manner consistent with (a) Miami 21 and the SAP, and/or the Comprehensive Plan, (b) any zoning change subsequently requested or initiated by the Developer in accordance with applicable provisions of law or (c) any zoning change subsequently enacted by the City. c. 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 obtained or held by the Owner or its successors or assigns to continue development of the Property in conformity with any active development orders granted by the City. 35. Annual Review. This Agreement shall be reviewed annually on the anniversary of the effective date of this agreement. The Applicant, Developer, or its assign, shall submit an annual report to the City Planning and Zoning Director for review at least 30-days prior to the annual review date. The report shall contain a section by section listing of what obligations have been met and the date finalized as good faith compliance with the terms of the agreement. The City Manager and Planning and Zoning Director shall review the annual report and accept it if found to be in compliance. The failure to submit the annual report shall not constitute a basis to find the Developer is not in compliance with the Development Agreement as provided in 163.3235, Florida Statutes, as amended. If the City finds, on the basis of substantial competent evidence that there has been a failure to comply with the terms of the agreement, the City shall provide the (Applicant) with a fifteen (15) day written notice and an opportunity the cure the non-compliance. The (Applicant) shall have 90-days after the expiration of the 15- day notice period to begin to address or cure the non-compliance, after which the Agreement may be revoked or modified by the City Commission following an advertised public hearing. The Developer's commitment to submit an annual report shall conclude upon the date on which the agreement is terminated. 36. Notice. All notices, demands, and requests which may or are required to be given hereunder shall, except as otherwise expressly provided, be in writing and delivered by personal service or sent by United States Registered or Certified Mail, return receipt requested, postage prepaid, or by overnight express delivery, such as Federal Express, to the Parties at the addresses listed below. Any notice given pursuant to this Agreement shall be deemed given when received. Any actions required to be taken hereunder which fall on Saturday, Sunday, or United States legal holidays shall be deemed to be performed timely when taken on the succeeding day thereafter which shall not be a Saturday, Sunday, or legal holiday. To the City: City Manager, City of Miami 3500 Pan American Drive Miami, Florida 33133 With a copy to: City Attorney, City of Miami Miami Riverside Center To the Owner: With a copy to: 444 S.W. 2nd Ave., 9th Floor Miami, Florida 33130 SPV Realty, LC ATTN: Kevin Fabricant 12000 Biscayne, Suite 609 North Miami, FL 33181 Bercow Radell Fernandez Larkin & Tapanes, PLLC ATTN: Ben Fernandez, Esq. 200 South Biscayne Boulevard, Suite 300 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. 37. 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. 38. 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 or other entity shall be subject to the reasonable approval of the City Attorney. 39. 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. 40. 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. 41 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. 42. 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. 43. 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. 44. 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 thirty (30) days after receipt of written notice from the City specifying the nature of such breach; provided, however, that if such breach cannot reasonably be cured within thirty (30) days, then the Owner shall not be in default if it commences to cure such breach within said thirty (30) day period and diligently prosecutes such cure to completion. b. The City shall be in default under this Agreement if the City fails to perform or breaches any term, covenant, or condition of this Agreement and such failure is not cured within thirty (30) days after receipt of written notice from 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. 45. Remedies. a. Neither Party may terminate this Agreement upon the default of the other Party unless specifically stated in this Agreement, 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 Ag reement. 46. 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. 47. No Oral Change or Termination. This Agreement and the exhibits and appendices appended hereto and incorporated herein by reference, if any, constitute the entire Agreement between the Parties with respect to the subject matter hereof. This Agreement supersedes any prior agreements or understandings between the Parties with respect to the subject matter hereof, and no change, modification, or discharge hereof in whole or in part shall be effective unless such change, modification or discharge is in writing and signed by the party against whom enforcement of the change, modification or discharge is sought. This Agreement cannot be changed or terminated orally. 48. Lack of Agency Relationship. Nothing contained herein shall be construed as establishing an agency relationship between the City and the Developer and neither Developer nor its employees, agents, contractors, subsidiaries, divisions, affiliates or guests shall be deemed agents, instrumentalities, employees, or contractors of the City for any purpose hereunder, and the City, its officials, contractors, agents, and employees shall not be deemed contractors, agents, or employees of the Developer or its subsidiaries, divisions or affiliates. 49. 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. 50. 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. 51. No Third -Party Beneficiary. No persons or entities other than the Developer and the City, permitted successors and assigns, shall have any rights whatsoever under this Agreement. 52. 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. 53. 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. 54. No Exclusive Remedies. No remedy or election given by any provision in the Agreement shall be deemed exclusive unless expressly so indicated. Wherever possible, the remedies granted hereunder upon a default of the other party shall be cumulative and in addition to all other remedies of law or equity arising from such event of default, except where otherwise expressly provided. 55. 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. 56. 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 , 2021. List of Exhibits A Legal Description B City of Miami's Future Land Use Map and Zoning Map C SAP Regulating Plan and Design Guidelines D Public and Community Benefit Capital Contributions D-1 Palm Grove Traffic Calming Improvements E City's Traffic Sufficiency letter dated August 8, 2016 Exhibit A: Legal Description All of blocks 1, 2 and 4 of Sabal Palm Court, according to the plat thereof as recorded in Plat Book 46, at Page 66 of the Public Records of Miami -Dade County, Florida Commonly known as 5035 NE 2 Avenue, 5125 NE 2 Court and 5175 NE 2 Avenue, all in Miami, Florida; And identified for tax purposes by folio numbers 01-3219-013-0040, 01-3219-013-0010, and 01-3219-013-0020. Exhibit B: City of Miami's Future Land Use Map and Zoning Map JAT MI = cumuraf 2 441 " 9 a:.:j 'IL • COD mosulgii '4L cw.s.awL3a City's Future Land Use Map Excerpt City's Zoning Map Excerpt cf4.0;31.a.. coacaprE ItWcgcE. calaMtazi, Exhibit C: SAP Regulating Plan and Design Guidelines [Under Separate Cover] • 4,k (\ Exhibit D Public and Community Benefit Contributions Owner agrees to invest Ten Million dollars ($10,000,000) (the "Capital Contribution") as outlined below, (Exhibit D) to this Development Agreement and subject to the terms of Section 13 of the Development Agreement. The Capital Contribution shall be made to the individual community organizations identified in the line items below. 1. Co -working Space and Business Incubator — Owner commits to $2.5 million to fund a co -working site and technology improvements either on -site at Sabal Palms Village and/or an alternative site as determined with the Miami -Dade Chamber of Commerce and the Haitian American Chamber of Commerce. The co -working space will include a business incubator program. The first partial payment of $1,000,000 shall be prior to the City's issuance of a vertical building permit for Phase 1 of the Project. The second payment of $1,000,000 shall be paid prior to the City's issuance of the first vertical construction permit for Phase 3 of the Project. The third and final payment of $500,000 shall be paid prior to the City's issuance of the first vertical construction permit for Phase 4 of the Project. 2. Residential and Business Beautification and Renovation Grants — The Owner commits to a total funding commitment of $1.5 million ($750,000 for Residential Grants and $750,000 for Business Grants) for weatherization, painting, roofing, code violation, building recertification, storefront beautification, or electrical and plumbing upgrades and repairs. The Residential Grant program shall be administered by for single family homes located in zip codes . The Business Grant program shall be administered by Lkay Ma'Man, Inc for businesses located within zip codes . The first $750,000 payment shall be paid with $375,000 to each organization within 10 days following the issuance of the first vertical construction permit for Phase 1. The balance of $750,000 shall be contributed with $375,000 to each organization prior to the issuance of the first vertical construction permit for Phase 3 of the Project. 3. Education — Owner commits to $800,000 for College and Vocational Training Scholarships to be administered by the Miami -Dade Chamber of Commerce and the SantLa. $400,000 of said scholarship monies shall be allocated for non -creole speaking students residing within zip codes and administered by the Miami -Dade Chamber of Commerce and $400,000 of said scholarship monies shall be allocated to SantLa for creole speaking students within zip codes of The scholarship annual amount, per student amount, and scholarship criteria will be determined by the Miami -Dade Chamber and SantLa, respectively. 50% of the funds shall be paid prior to the issuance of the first Certificate of Occupancy for Phase 1, and 50% shall be paid upon the issuance of a final Certificate of Occupancy for Phase 2. No more than 20% said monies allocated to each respective organization shall be used to administer the program. 4. Little Haiti Arts Program — Owner commits to $400,000 to support community arts and theatre programming at the Little Haiti Cultural Center. $100,000 shall be contributed within 10 days following the expiration of all appeal periods relative to the City Commission's approval, and signature of by Owner and the City, of the proposed Comprehensive Plan, SAP and Development Agreement. The balance of $300,000 shall be paid in ten equal annual payments of $30,000 thereafter to be used for arts and theatre capital improvements or programming, with the first annual payment taking place prior to the City's issuance of the first Certificate of Occupancy for Phase 1. 5. Little Haiti Soccer Program (Little Haiti FC)— Owner agrees to a total of $500,000 to support Little Haiti FC, consisting of an up -front payment $100,000 being made within 10 days following the expiration of all appeal periods relative to the City Commission's approval, and signature of by Owner and the City, of the proposed Comprehensive Plan, SAP and Development Agreement, with such payment to be used to purchase a van, uniforms, and equipment and for operating expenses for the program, The balance of $400,000 shall be paid in ten equal annual support payments of $40,000 for coaching, uniforms, insurance, equipment and travel expenses, with the first annual payment taking place prior to the City's issuance of the first Certificate of Occupancy for Phase 1. 6. Community Support Services — Owner shall contribute $1,000,000 to support the deliver of social services in the Haitian American community within zip codes . Said Funds shall be administered by Sant La and shall be used to provide naturalization assistance, educational attainment and advocacy, language literacy, financial literacy, tax preparation, parenting support, and tax preparation. $100,000 shall be contributed at the time of the first vertical building permit is issued for Phase 1 of the Project and $100,000 each year thereafter for 9 years. 7. Healthcare — Owner agrees to a one-time grant amount to the Providence Community Health Center of a total of $250,000. Said contribution shall be made prior to the issuance of the first vertical construction permit for Phase 3. 8. Citizens Patrol — Owner commits to $100,000 in a one-time payment to support the purchase of vehicles (or electric golf carts), uniforms, radios, equipment for the Little Haiti Citizens Patrol. Said payment shall be made prior to the issuance of the first vertical construction payment for Phase 1. 9. Post -project business and Workforce development — Owner shall contribute $2,000,000 towards Post -project business and workforce development. $1,000,000 of said funds shall be contributed to the Miami -Dade Chamber of Commerce to establish and administer a small business revolving loan fund to provide working capital for local small businesses in zip codes . $500,000 of said funds shall be contributed to the Black Prosperity Alliance to establish and administer an on- going workforce training program to serve residents within zip codes $200,000 of said funds shall be contributed to Our Miami Promise, Inc to establish a program to train high school students in zip codes to apply for College Pell Grants and establish a college tuition completion grant program for students residing in zip codes and receiving public or private college scholarship grants and in need of additional funding to complete a 2-year or 4-year degree at a College located in Miami -Dade County. $300,000 shall be contributed to Lkay Maman to provide business support services for local businesses within zip codes . $500,000 shall be contributed to the Miami -Dade Chamber, $250,000 to the Black Prosperity Alliance, $100,000 to Our Promise, and $150,000 to LKay Maman prior to the issuance of the first Certificate of Occupancy of Phase 2. $500,000 shall be contributed to the Miami -Dade Chamber, $250,000 to the Black Prosperity Alliance, and $100,000 to Our Promise and $150,000 to Lkay Maman prior to the issuance of the first Certificate of Occupancy for Phase 4. 10. Palm Grove Neighborhood Association — Owner shall contribute $750,000 to address neighborhood concerns related to beautification, public safety, on -street and off-street parking improvements, and activation of idle land. Said funds shall be contributed as follows: $375,000 at the time of issuance of the first civil site work permit for Phase 1, $375,000 at the time of issuance of the first vertical construction permit for Phase 2. 11. Little Haiti Feeding Program — Owner shall contribute $300,000 to the Little Haiti Feeding Program administered by Curley's House of Style, a not -for -profit company, to feed Seniors in the Little Haiti Community. Said contribution shall take place with a contribution of $60,000 upon the issuance of the first vertical building permit for Phase 1 and $60,000 each year thereafter for 4 years. The feeding program will feed seniors residing in the following Little Haiti Senior Buildings: St. Mary Towers 7615 NW 2nd Ave. Miami, FL 33172 Poinciana Grove 5601 NW 2nd Ave. Miami, FL 33127 Village Carver Phase 1 495 NW 74th St. Miami, FL 33150 Gwen Cherry 22 - PHCD 7101 NE Miami Ct. Miami, FL 33138 Leonard Batz Senior Center 150 NE 69th St. Miami, FL 33138 Villa Patricia Apartments 7855 NE 2nd Ave. Miami, FL 33138 Bulski Stanley 80 NW 59th St. Miami, FL 33127 Barcelona Condo 60 NW 76th St. Miami, FL 33150 EXHIBIT D-1 EXHIBIT D-1 1 Er Kimley>» Horn © 2021 Enhanced Crosswalk Raised Intersection Raised Intersection Raised Intersection Speed Table Raised Intersection Speed Table NE 77th Street l NE 76th Street NE 75th Street rP k w'�NE 74th Stre t NE 72nd Street NE 71 st Street' NE 70th Street i NE 69th Street - Speed Table Speed Table Speed Table I k „*jilt Speed Table f NE 68th Street .w� Speed Table NE 67th Street NE 6.6th St ree Speed Table 0.r • NE 65th Street k. Roundabout . NE 64th Street E 63r- Street • d-Stree �t:�,► Speed Table Speed Table Comprehensive Neighborhood Traffic Calming Plan Location Map Sabel Palm Village Doral, Florida EXHIBIT E HNTB Corporation Engineers Architects Planners Date 8/8/2016 8700 West Fiagler Street Suite 402 Miami, Florida 33174 Ms. Irene S. Soria, P.E. Project Manager City of Miami - Capital Improvements & Transportation Program 444 SW 2" d Avenue, 8'h Floor, Miami, FL 33130 Re: Eastside Ridge Traffic Impact Study - Sufficiency Letter Dear Ms. Soria: Telephone (305) 551-8100 Facsimile (305) 551-2800 www.hntb.com INTB The consultant has provided valid responses and/or addressed our comments submitted in June 20t, 2016. The revised traffic impact study report shows that the roadway segments and intersections near the proposed development are anticipated to operate within the LOS standards established in the City of Miami Comprehensive Plan with the exception of the two-way stop -controlled intersection at NE 54th Street and NE 3'd Avenue. The consultant proposes to signalize the intersection at NE 54`h Street and NE 3rd Avenue and construct a westbound left -turn lane and an eastbound right -turn lane pending the results of an 8-hour signal warrant analysis that is planned to be completed in the near future. Please note that the applicant has proposed to undertake Transportation Control Measures (TCMs) to reduce the impact of project traffic on the surrounding roadways and intersections and should be held responsible for implementing the following measures: implementation of bicycle lanes, and short-term and long-term bicycle parking. We recommend that the proposed TCMs become part of the final development order for this project. The consultant has also proposed to coordinate with the Tri-Rail coastal Link train station. We would like to proceed issuing this sufficiency letter with the understanding that the consultant will complete and discuss the results of the signal warrant analysis with the City and implement the proposed TCMs. Sincerely, HNTB CORPORATION ds- Carlos A. Alba, PE, PTOE Project Manager