HomeMy WebLinkAboutDevelopment Agreement - Updated 12-14-2021This 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
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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
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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 (2021), 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
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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.
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4. Definitions. Capitalized terms which are not specifically defined herein shall have
the meaning given to them in Miami 21.
"Affordable Housing" shall mean a Dwelling Unit, owner -occupied and/or rental
housing with a purchase cost, value, or monthly rental, 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 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 (2021), 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.
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"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." (See
Exhibit D)
"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 (2021).
"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
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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 (2021).
"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 state, or federal
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.
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"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, 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 (See Exhibit A). 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
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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). (See
Exhibit C).
"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
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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 (2021). 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 (2021), 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
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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 (2021), 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 (2021), 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 (2021).
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
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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 (2021) have been made;
ii. The City has provided the Owner at least thirty days' written notice
of its intent to apply such regulations; and
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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 (2021), 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 (2021), 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 E. The public benefits set forth in
this Section and detailed on Exhibit E 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 E 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 E to
this Development Agreement and subject to the terms of this
Section.
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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 E
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 E 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 SAP
rezoning final approval and the Development Agreement final
approval and then distributed to 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 E.
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:
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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
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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 F . 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;
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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.
3. 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.
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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 relocate 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.
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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 F. 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
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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. The specific terms of the sublease and the
renewal are to be finalized prior to the issuance of a building permit
in furtherance of the Redevelopment of the Property.
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.
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
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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.
Total diameter
removed (sum
Tree Replacement Chart
of tree(s) to be
of inches at DBH)
Total inches of replacement DBH
required (12' minimum tree height)
2"
—3"
2"
4"
—6"
4"
7"
—12"
8"
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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.
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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. The Owner shall notify
the City in writing of any proposed changes to the phases described on Sheet A9
of the Design Guidelines.
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
23
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 (2021), 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
24
essence in all aspects of their respective and mutual responsibilities pursuant to
this Agreement. The City shall use reasonable 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 (2021) 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
25
submit an annual report to the City Planning 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 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:
With a copy to:
To the Owner:
City Manager, City of Miami
3500 Pan American Drive
Miami, Florida 33133
City Attorney, City of Miami
Miami Riverside Center
444 S.W. 2nd Ave., 9th Floor
Miami, Florida 33130
SPV Realty, LC
ATTN: Kevin Fabricant
12000 Biscayne, Suite 609
26
With a copy to:
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
27
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,
28
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
29
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 (201), (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.
30
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. The Owner shall
record the fully executed Agreement within 14 days of all parties executing the
Agreement.
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. The Owner shall provide the City with a
corporate resolution (or other acceptable documentation) identifying the persons
authorized to sign on behalf of Owner.
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. The Parties shall be entitled to sign
and transmit an electronic signature of this Agreement (whether by facsimile, PDF
or other email transmission), which signature shall be binding on the Party whose
name is contained therein. Any Party providing an electronic signature agrees to
promptly execute and deliver to the other Parties an original signed Agreement
upon request.
NOW WHEREFORE, the Parties have caused this Agreement to be duly executed.
IN WITNESS WHEREOF, these presents have been executed this day of , 2021.
31
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 Concept Book
E Public and Community Benefit Capital Contributions
F City's Traffic Sufficiency letter dated August 8, 2016
F-1 Palm Grove Traffic Calming Improvements
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
72
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City's Future Land Use Map Excerpt
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City's Zoning Map Excerpt
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Exhibit D: Concept Book
[Under Separate Cover]
r)s(s6
Exhibit E: Public and Community Benefit Capital Contributions
[Under Separate Cover]
r)s(s6
Exhibit F: City's Traffic Sufficiency letter dated August 8, 2016
[Under Separate Cover]
N
0
Exhibit F-1: Palm Grove Traffic Calming Improvements
[Under Separate Cover]