HomeMy WebLinkAboutDevelopment Agreement - date UNK - Eastside RidgeNOTE: THIS DRAFT IS PENDING UPCOMING MEETINGS WITH INTERESTED NEIGHBORHOOD STAKEHOLDERS AND
CONTINUED DISCUSSIONS THEREAFTER. NOTABLE ELEMENTS UNDER DISCUSSION BUT NOT YET AGREED TO OR
INCORPORATED IN THIS DEVELOPMENT AGREEMENT INCLUDE PROVISIONS OF A FIRE OR POLICE SUBSTATION, AND
FINANCIAL CONTRIBUTIONS TOWARD AFFORDABLE HOUSING.
This Instrument was Prepared by, and
After Recording Should be Returned to:
Edward Martos, Esq.
Weiss, Serota, Helfman,
Cole & Bierman, P.L.
2525 Ponce de Leon Boulevard, Suite 700
Coral Gables, Florida 33134
DEVELOPMENT AGREEMENT BETWEEN THE CITY OF MIAMI, FLORIDA AND
EAST RIDGE, LLC REGARDING DEVELOPMENT OF EASTSIDE RIDGE SPECIAL
AREA PLAN
This Development Agreement (the "Agreement") executed this day of
2018, between SPV Realty LC, a Florida limited liability company ("Owner"), and East Ridge,
LLC, a Florida limited liability company (collectively, the "Developer"), and the City of Miami,
Florida, a Florida municipal corporation and a political subdivision of the State of Florida (the
"City"). The Owner, Developer and the City are each a "Party" and are collectively referred to
herein as the "Parties."
LS
WHEREAS, the Owner is the fee simple owner of 22.4 acres of property in the City of
Miami, Florida, legally described in the attached Exhibit "A" and generally bounded by: (a) NE
54th Street on the north; (b) the FEC Railway on the east; (c) Block 3 of the Sabal Palm Plat
recorded at Plat Book 46, Page 66 (of the Public Records of Miami -Dade County, Florida), and
NE 2nd Avenue on the west; and (d) the Replat of the North One Half of Tract 9, All of Tracts 10,
11, and 12 of the Revised Plat of Brentwood as recorded at Plat Book 47, Page 20 (of the Public
Records of Miami -Dade County, Florida) (the "Property"); and
WHEREAS, the Property is located in an Enterprise Zone in which the City envisions
sustained economic growth through County and State -offered tax incentives; and
WHEREAS, the Property's location at the southwest corner of the intersection of NE 54
Street and the FEC Railway, and the Property's close proximity to Biscayne Boulevard make it
well suited to support greater future development; and
WHEREAS, the Parties wish to ensure that future development of the Property
acknowledges the Property's proximity to Little Haiti and its historic role as a center of life in the
Haitian American community's presence there; and
WHEREAS, the South Florida Regional Transportation Authority (the "SFRTA") has
identified the intersection of NE 54 Street and the FEC Railway as an ideal location for a future
station along its planned "Tri-Coastal Link" passenger rail line, and
WHEREAS, the Property's location abutting the Tri-Rail Coastal Link railway will allow
for efficient access via fixed -rail public transportation, making the Property ideally situated to
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provide heightened density and intensity commensurate with a transit oriented development node;
and
WHEREAS, the Parties wish to encourage future growth in the City around transportation
nodes such as railroad stations and other transit corridors; and
WHEREAS, the Property is designated Low -Density Multifamily on the City's Future
Land Use Map and is zoned Urban Center (T5) as illustrated in Exhibit "B"; and
WHEREAS, Section 3.9 of the City's zoning ordinance ("Miami 21") allows for unified
properties consisting of greater than nine acres in area to be master planned so as to allow greater
integration of public improvements and Infrastructure, and greater flexibility so as to result in
higher or specialized quality building and Streetscape design within the Special Area Plan; and
WHEREAS, on July 18, 2016, the Developer filed applications with the City to modify
the Property's land use designation and for approval of the Eastside Ridge Special Area Plan (the
"SAP") in order to regulate Redevelopment of the Property as a mixed -use transit oriented
neighborhood and activity node consisting of residential, office, retail, medical, and civic uses,
and community serving transit; and
WHEREAS, Redevelopment of the Property consistent with the SAP will create initial
and recurring fiscal benefits for the City including temporary and permanent jobs as well as an
increased tax base; and
WHEREAS, the Parties wish for Redevelopment `t e 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; and ��-
WHEREAS, as a condition to the approval of the SAP, Miami 21 Section 3.9.1.f requires
that the Owner and Developer 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 (2016), 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 and Developer that they 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
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WHEREAS, the City Commission pursuant to Ordinance No. , adopted
, 2018 has authorized the City Manager to execute this Agreement upon the terms and
conditions set forth below, and the Owner and Developer are 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 Agre, unless otherwise
expressly provided:
(a) A defined term has the meaning assigned to it;
(b) Words in the singular include the plural, and words in the plural include the singular;
(c) A pronoun in one gender includes and applies to other genders as well;
(d) The terms "hereunder", "herein", "hereof", "hereto" and such similar terms shall refer
to the instant Agreement in its entirety and not to individual sections or articles;
(e) The Parties agree that this Agreement shall not be more strictly construed against either
the City, the Owner or the Developer, as all Parties are drafters of this Agreement; and
(f) The attached exhibits shall be deemed adopted and incorporated into this Agreement;
provided however that this Agreement shall be deemed to control in the event a conflict
between the attachments and this Agreement.
4. Definitions. Capitalized terms which are not specifically defined herein shall have the
meaning given to them in Miami 21.
"Affordable Housing" shall mean an owner -occupied and/or rental dwelling unit with a
purchase cost, value, or monthly rent, as applicable, equal to or less than the amounts
established by the applicable standards for those individuals whose income is at or below
60 percent of area median income as published by the United States Department of Housing
and Urban Development and certified by the City's Department of Community and
Economic Development.
"Agreement" means this Development Agreement between the City, Owner and the
Developer.
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"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"); an Hispanic Business Enterprise ("HBE"); or a Small Business Enterprise
("SBE"); all as generally described in Section 2-8, et seq. of the Miami -Dade County Code
of Ordinances.
"City" means the City of Miami, a municipal corporal
departments, boards, committees, agencies and instru
thereof.
of the State of Florida, and all
ities subject to and jurisdiction
"City Charter" means the municipal Charter of the City of Miami.
"City Code" or "Code" means the Code of Ordinances of the City of Miami.
"City Manager" means the City Manager or his or her designee.
"Comprehensive Plan" means the comprehensive plan known as the Miami
Comprehensive Neighborhood Plan, ("MCNP") adopted by the City pursuant to Chapter
163, Florida Statutes (2017), meeting the requirements of Section 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 guides future development within the SAP Area. Together with the Regulating
Plan and this Agreement, the Design Guidelines provides, 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."
"Developer" means East Ridge, LLC, a Florida limited liability company and its
successors and assigns.
"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).
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"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 date or recordation of the executed, original version of this
Agreement.
"Encroachment" includes any improvement to the Property by the Owner or the
Developer, a fixture to such an improvement, or any portion of such an improvement or
fixture that:
(a) Is located on, over, within, or beneath real property owned or operated by the
City, the County or which is otherwise dedicated as part of the public right-of-
way or Pubic Open Space ; and
(b) Has been authorized by the relevant local government(s) pursuant to applicable
laws and a permit issued separate and apart from this Agreement or the SAP.
"Existing Zoning" is (a) Miami 21 Code, effective May 2010, as amended, specifically
including the Eastside Ridge SAP Regulating Plan and Design Guidelines (see Exhibit C),
and (b) the Land Development Regulations specified in the Charter and City Code as of
the Effective Date.
"Florida Local Government Development Agreement Act" shall mean Sections
163.3220 through 163.3243 of the Florida Statutes (2017).
"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 and State government affecting the
development of land.
"Little Haiti Area" the area within the following metes and bounds:
Beginning at the intersection of Northeast 54th Street and Northeast 4th Avenue,
travelling westward along the midblock line between Northeast 54th Street and the
street parallel to the south, until it meets Interstate I-95, then travelling northward
along the center line of Interstate I-95, until meeting the boundary of the City of
Miami, then turning and traveling eastward along the midblock line to include the
frontage of Northwest 79th Street, until reaching North Miami Avenue, then
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travelling northward along North Miami Avenue until it reaches the Little River,
then travelling eastward, following the northern boundary of the City of Miami
along the Little River, until reaching Northeast 2nd Avenue, then travelling
southward along the midblock line between Northeast 2nd Avenue and the street
running parallel to the east, to include the eastern frontage of Northeast 2nd Avenue,
until reaching the northern boundary of Little Haiti Park, then following the park
boundary until reaching Northeast 4th Avenue, then travelling south along the center
line of Northeast 4th Avenue until the beginning.
"Miami 21" means City of Miami Ordinance 13114, as amended, through the Effective
Date and specifically includes the Eastside Ridge SAP Regulating Plan and Design
Guidelines.
"Owner" means SPV Realty, LC, a Florida limited liability company and its successors
and assigns.
"Park Impact Fee" means t!e parks and recreation impact fee provided for in Sections
13-7 and 13-12 of the City
"Phase 1 Construction," "Phase 2 Construction," etc. means the stage of development
of the Property pursuant to the SAP as described in page A-10 of the Design Guidelines.
"Planning Director" means the Director of the City's Planning and Zoning Department
or his or her designee.
"Property" means the approximately 22.47 acres of real property in the City of Miami,
Florida, legally described in the attached Exhibit "A" and generally bounded by: (a) NE
54th Street on the north; (b) the FEC Railway on the east; (c) Block 3 of the Sabal Palm
Plat recorded at Plat Book 46, Page 66 (of the Public Records of Miami -Dade County,
Florida), and NE 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, 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.
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"Public Open Spaces" collectively means those certain areas within the Property
described on pages C-1 and D-9 of the Design Guidelines, set aside by the Owner and
Developer for use as public Open Space and/or open Civic Space, and consisting of a
combined area of approximately 295,343 square feet.
"Redevelopment of the Property" means all construction required to improve the
Property in accordance with the SAP. Redevelopment of the Property does not include any
construction or improvements not authorized by the SAP.
"Regulating Plan" means the City Commission -approved set of land development
regulations that supersede standard transect regulations provided in Miami 21. Together
with the Design Guidelines and this Agreement, the Regulating Plan provides the
information required by Miami 21 Section 3.9.1(c) through (h).
"SAP Area" is used interchangeably with the capitalized term, "Property."
"Special Area Plan" or "SAP" means the Eastside Ridge Special Area Plan, including the
Regulating Plan and Design Guidelines.
"Workforce Housing" means a Dwelling Unit, owner -occupied and/or rental housing
with a purchase cost, value, or monthly rental rate, as applicable, equal to or less than the
amounts established by the applicable standards for those individuals whose income is
between 60 percent and 140 percent of the Area Median Income as published by the United
States Department of Housing and Urban Development and certified by the City's
Department of Community and Economic Development.
5. Purposes. The purposes of this Agreement are:
a. To satisfy the requirements of Miami 21 Section 3.9.1(f) by, among other things,
providing for the creation and retention of certain public benefits (which it does);
b. In satisfying the requirements of Miami 21 Section 3.9.1(f), to authorize
Redevelopment of the Property; and
c. To provide Owner and Developer 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, the City Charter, the City Code, and the
Florida Local Government Development Agreement Act.
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7. Applicability. This Agreement only applies to the Property identified in Exhibit "A."
8. Term of Agreement, Effective Date and Binding Effect. This Agreement shall have a
term of thirty (30) years from the Effective Date and shall be recorded in the public records
of Miami -Dade County by the Owner and Developer and filed with the City Clerk. The
term of this Agreement may be extended by mutual consent of the Parties subject to public
hearing(s), pursuant to Section 163.3225 of the Florida Statutes (2017). This Agreement
shall become effective on the Effective Date and shall constitute a covenant running with
the land that shall be binding upon, and inure to, the benefit of the Owner and Developer,
their 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 (2017),
then the association or other entity designated to represent the condominium ownership
interests as to the Property, as may be applicable, shall be the proper party or parties to
execute any such release for properties in a condominium form of ownership.
9. Land Use and Zoning Designations. Pursuant to City Ordinances and
, and in accordance with applicable legal requirements, the City has designated
the Property "Restricted Commercial" on the City's Future Land Use Map, and "Eastside
Ridge SAP" on the City's official Zoning Atlas. The SAP provides for deviations from
commonly applicable provisions of Miami 21. In approving the SAP, the City has
determined that the use, 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.
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 peiinitted 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.
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a. Controlling Regulations. The Property will be developed and operated as
provided in the Comprehensive Plan and Existing Zoning as each exists as of the
Effective Date. The standard used to determine whether the City shall approve
future development will be whether the proposed development is consistent with
(a) Miami 21, (b) the Comprehensive Plan, (c) this Agreement, (d) and the SAP.
b. Area -Wide Standards. Density, Intensity, Civic Space, and Open Space are
governed on a SAP -wide basis rather than on a site -specific basis.
i. As development proceeds on individual building sites, Dwelling Units
and/or floor area will be absorbed and the SAP -wide totals will be reduced.
SAP -wide Civic and Open Space totals consisting of common open space
delineated and developed at the commencement of development of the SAP
shall be increased as site -specific open space areas are developed counted.
All remaining regulations, including all other building disposition
requirements, are applied on a site -specific basis within sites identified in
the SAP Design Guidelines.
c. 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 an portion of the Prope
d.
Amendments, Generally. Any modification is Agreement shall be approved
in accordance with the SAP. The City's laws and policies adopted after the
Effective Date may be applied to the Property only if the determinations required
by Section 163.3233(2), Florida Statutes (2017), have been made after thirty (30)
days written notice to the Owner and Developer, and at a public hearing.
. Amendments by Owner or Developer. Nothing in this Agreement shall prohibit
the Owner or Developer from requesting a change of zoning or amendment of the
SAP pursuant to Article 7 of Miami 21 to modify the Density, Intensity, Uses or
Heights permitted under the SAP.
12. Prohibition on Downzoning.
a. During the term of this Agreement, changes to the Comprehensive Plan or Existing
Zoning taking legal effect after the Effective Date shall not apply to the Property
unless:
i. The determinations required by Section 163.3233(2) of the Florida Statutes
(2017) have been made;
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ii. The City has provided the Owner and Developer 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 and Developer.
b. In accordance with Section 163.3245(3) Florida Statutes (2017), this prohibition on
downzoning supplements, rather than supplant, any rights that may vest to the
Owner or Developer under Florida or Federal laws. As a result, the Owner or
Developer 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
(2017), or any other Florida, or Federal statute(s); or
iii. The Miami -Dade County Code or laws of the City.
13. Public Benefit Contributions. In accordance with Miami 21 Section 3.9(f), and as
consideration for certain modifications to Miami 21 provided for in the SAP and this
Agreement, the Owner and Developer hereby agree to create and retain the "public
benefits" identified in this Section 13. The SAP regulates the maximum Height achievable
in each Transect in the SAP Area through specified base permitted Height, and a
combination of (i) the Height bonuses provided in Miami 21, Section 3.14; and (ii) certain
public benefits identified in the SAP (for example, the provision of Open Space, the
construction of a train station, etc.). The public benefits identified in Section 13 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.
a. Promoting Little Haiti's Civil Society. Owner and Developer acknowledge that
Little Haiti's community faces a series of economic and social challenges including
a pressing need for affordable housing, educational opportunities, small business
growth, and assistance with immigration services to preserve unity. Owner, as an
existing member of the community, and Developer, as one of the community's
newest members, each wish to help Little Haiti's residents confront those
challenges by enabling Civil Society there. Accordingly, Owner and Developer
agree to invest up to $10,000,000 (the "Capital Contribution") for use by Little
Haiti's non-profit civil society organizations subject to the following terms.
i. Use of Capital Contribution. Use of the Capital Contribution will be
governed by an initial charter overseen by a board made up of community
leaders, subject to the terms of this paragraph. The purposes for which the
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Capital Contribution may be used will be limited to the following
categories:
1. Affordable Housing. Up to $7 million of the Capital Contribution
will be set aside as a revolving fund to help build or renovate
affordable housing in Little Haiti. This revolving fund will provide
loans to non-profit affordable housing developers at the lowest rates
possible to retain non-profit status, tinder Federal and State law, and
subject to other terms to all •,,;'; htinued reinvestment in Little
Haiti.
2. Advancing Educational Opportunities. A portion of the Capital
Contribution will promote job training, continuing adult education,
and pre-K through college opportunities, including but not limited
to: support for existing community programs for seniors, daycare,
and after -school programs; providing children's books and
promoting literacy thr Little Haiti Book Fair; and
scholarships.
3. Promoting Haitian -Owned & Operated Business. Community
leaders have expressed a strong interest in fostering Haitian owned
It'and operated small businesses in Little Haiti. A portion of the
Capital Contribution may advance this goal by creating a small
business incubator for Haitian owned and operated businesses. Such
an incubator could provide rent assistance, business development
training, marketing opportunities, seed funding, and other benefits.
Alternatively, these same and similar forms of business assistance
may be provided without the need of establishing a business
ncubator.
4.
Promoting Haitian Culture, Art, and Language. Little Haiti has a
rich culture that should be celebrated. A portion of the Capital
Contribution will do so by providing financial sponsorship for
various artists, art groups and art programs including, but not limited
to, Arts Beat Miami, the Haitian Heritage Museum, and the Little
Haiti Cultural Center.
5. Immigration and Naturalization Assistance. A portion of the Capital
Contribution may be used to establish or to contribute to existing
revolving funds for the payment of fees for naturalization,
adjustment of status and TPS applications. Capital Contribution
funds may not be used for political purposes including campaigning
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or seeking policy changes, or for any other uses that would
jeopardize non-profit status under Federal or State law.
ii. Contribution Commensurate with Number of Units Approved. Owner
and Developer's capital contribution will be commensurate with the total
number of dwelling units that are authorized to be constructed at the
property. The Owner and Developer's Comprehensive Plan and SAP
applications propose a maximum of 3,370 dwelling units. If the City
Commission approves up to 3,300 units, then Owner and Developer shall
contribute $10,000,000 consistent with the terms of this agreement. If the
City Commission approves a smaller number of units, the total contribution
will be reduced as follows:
1. By $1,500 per unit for each unit below a total of 3,300 units
2. By $2,000 per unit for each unit below a total of 3,000 units
3. By $4,500 per unit for each unit below a total of 2,800 units
4. By $7,375 per unit for ea unit below a total of 2,300 units
iii. Installments. The Capital Contribution shall be made in installments as
follows:
a. SAP Approval. $500,000 or 5% will be paid after the City Commission
approved the proposed Comprehensive Plan, SAP and Development
Agreement, and all applicable appeal periods expire.
b_ Phase 1 Development Approval. $500,000 or 5% will be paid after the
City issues necessary development approvals for Phase 1 construction
and applicable appeal periods expire.
c. 'Phase 1 Building Permit. $750,000 or 7.5% will be paid after the City
issues a Building Permit for construction of Phase 1 and applicable
appeal periods expire.
Phase 1 Certificate of Occupancy. $1,000,000 or 10% will be paid
after the City issues final Certificate of Occupancy for construction of
Phase 1 and any applicable appeal periods expire.
e. Phase 2 Development Approval. $500,000 or 5% will be paid after the
City issues necessary development approvals for Phase 2 construction
and applicable appeal periods expire.
f. Phase 2 Building Permit. $750,000 or 7.5% will be paid after the City
issues a Building Permit for construction of Phase 2 and applicable
appeal periods expire.
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g.
Phase 2 Certificate of Occupancy. $1,000,000 or 10% will be paid
after the City issues final Certificate of Occupancy for construction of
Phase 2 and any applicable appeal periods expire.
h. Phase 3 Development Approval. $500,000 or 5% will be paid after the
City issues necessary development approvals for Phase 3 construction
and applicable appeal periods expire.
Phase 3 Building Permit. $1,000,000 or 10% will be paid after the City
issues a Building Permit for construction of Phase 3 and applicable
appeal periods expire.
J.
Phase 3 Certificate of Occupancy. $1,000,000 or 10% will be paid
after the City issues final Certificate of Occupancy for construction of
Phase 3 and any applicable appeal periods expire.
k. Phase 4 Development Approval. $500,000 or 5% will be paid after the
City issues necessary development approvals for Phase 4 construction
and applicable appeal periods expire.
I. Phase 4 Building Permit. $1,000,000 or 10% will be paid after the City
issues a Building Permit for construction of Phase 4 and applicable
appeal periods expire.
m. Phase 4 Certificate of Occupancy. $1,000,000 or 10% will be paid
after the City issues final Certificate of Occupancy for construction of
Phase 4 and any applicable appeal periods expire.
iv. Community Leadership. The use of Capital Contribution funds will be
directed and supervised by a seven -member board. The board will consist
of the following individuals:
1.
An appointee of a non-profit organization with an established track
record of providing social services in Little Haiti for no less than 10
years. Ideally, this appointee will be the chief executive or other
leader of such non-profit organization.
2. An appointee of a non-profit organization with an established track
record of providing social services in Little Haiti for no less than 10
years. Ideally, this appointee will be the chief executive or other
leader of such non-profit organization.
3. An appointee from within Little Haiti's leading religious
institutions. Ideally, this appointee will be one of the religious
institution's leaders.
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4. An appointee from within the downtown Little Haiti business
community. This individual must have operated a business in Little
Haiti for at least five years. The individual may be appointed by a
leading business organization such as a chamber of commerce or
business improvement district, or may be an individually selected.
5. An individual with experienc- n developing and managing
affordable housing in Little H ' ® no less than 10 years.
6. An appointee of the Ow
7. An appointee of the City Commissioner for Little Haiti. This
appointee should be an individual who has lived or owned and
operated a business in Little Haiti for no less than ten years.
To serve on the governing board, all individuals must (1) demonstrate an
active involvement in promoting the social and economic welfare of the
Little Haiti Community; and (2) live or have a place of business in Little
Haiti.
With the exception of the . oard appointee selected by the City
Commissioner, the Owner and Developer will appoint the members of the
seven -member board. Vacancies on the foundation's governing board will
be filled by majority vote of the Board's remaining members.
Management. To ensure that the Capital Contribution is efficiently
managed and to encourage transparency and accountability, daily
management and supervision of the Capital Contribution shall be managed
by an established community foundation serving Miami such as the Miami
Foundation, the Knight Foundation, or organization of similar repute.
vi. Within City Limits. Use of funds will be limited to projects located within
City of Miami limits and residents of the City.
vii. Operating Costs. The costs of forming the board, creating and recording
governing documents, establishing contracts with a community foundation
(such as the Miami Foundation or the Knight Foundation), and all future
operations of the seven -member board's management of the Capital
Contribution shall be paid out of the Capital Contribution.
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viii. Contributions by Others. The Capital Contribution may be augmented by
contributions from others provided, however, that the initial Capital
Contribution remain subject to all terms of this paragraph 13(a).
b. Job Creation and Employment Opportunities.
i. "Tiered Priority Areas." As further described in paragraph 13, several
employment opportunities will be offered according to "Tiered Priority
Areas." These are areas of the City and Miami -Dade County where
opportunities will be extended for a specified period time or until specified
targets are satisfied. Opportunities will be extended to persons residing in
the first priority area, then the second priority area, and so forth until hiring
goals are satisfied. The Tiered Priority Areas are:
1. First priority: Little Haiti Area and the portions of the following zip
codes located within the City of Miami: 33127, 33137, 33138, and
33150
NNW
2. Second priority: Southeast Overtown Park West Redevelopment
Area
Third prior ty: Zip codes 33128, 33130, 33134, 33142, 33125,
33135, and that portion of the zip codes 33133 and 33146 commonly
known as "West Coconut Grove"
4_ Fourth prig : Areas of the City not identified subparagraphs a-c
above.
ti
5. Fifth priority: Area of the County not identified in subparagraphs a-
lit;d above.
The above priority list is referred to herein as the "Tiered Priority
Areas." Each individual priority area is referred to as the first Tiered
Priority Area, the second Tiered Priority Area, and so on.
ii. Hiring Goals: Construction Jobs. Owner and Developer shall comply
with the following subcontractor participation requirements and laborer
participation requirements (the "Participation Requirements") with
respect to the Redevelopment of the Property:
1. Subcontractor Participation.
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a. The Owner and Developer shall require their general
contractor(s) to assign a minimum of 5% of the construction
contract value to subcontractors that are Certified Minority
Enterprise(s).
b. For purposes of calculating the subcontractor participation,
the percentage of participation shall be calculated based
upon the numerator being the dollar value of all subcontracts
given to subcontractors and the denominator being the total
dollar value of all subcontracts entered into by the general
contractor(s) over the entire course of the Property's
redevelopment pursuant to the SAP.
c.
Additionally, the Owner and Developer shall require their
general contractor(s) to use all commercially reasonable
efforts to hire qualified subcontractors in accordance with
the Tiered Priority Areas by first seeking subcontractor(s)
having offices in the first Tiered Priority Area, before
expanding their search to the second area, and so forth. The
Developer's general contractor(s) shall attempt to fulfill this
requirement within the first priority area for at least one
month before expanding its search to lower priority areas.
The general contractor(s) may expand from the second
priority area to the third and so forth only after search in each
lower priority area for at least two weeks.
'2. Laborer Participation.
b.
and Developer agree that at least 25% of the labor for
the Redevelopment of the Property will consist of City of
Miami residents and that at least 40% of the labor for the
Redevelopment of the Property will consist of Miami -Dade
County residents.
In order to accomplish the above laborer participation goal,
Owner and Developer will require their general contractor(s)
and subcontractors to seek laborers in the first Tiered
Priority Area for at least 60 days before expanding its search
to lower priority areas. The general contractor(s) and
subcontractor(s) must search within each lower tiered
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priority areas for no less than 30 days before expanding the
search into lower priority areas.
c. In the event of any disputes between the City Manager and
the Owner and/or Developer as to whether any subcontractor
has its principal place of business in the City or County, or
whether any laborer resides in the City or County, and
whether the Owner and/or Developer complied with the
Tiered Priority Areas, the Owner and/or Developer and the
City Manager shall proceed in good faith to resolve the
dispute. In the event the dispute is not resolved within ten
days, either Party may submit the dispute to the City
Commission for resolution. The decision of the Commission
shall be binding on the Parties.
iii. Hiring Goals: Permanent Jobs.
1. Employment by Owner and Developer. In connection with all
employment opportunities available in connection with the
operation of the Property, including the commercial components of
the Property, Owner and Developer agree to recruit and hire
employees who are residents of the City or County according to the
Tiered Priority Areas, with a goal of having 10% of the workforce
employed by Owner and Developer at the Property to be residents
of the City or County. Owner and Developer will apply all
commercially reasonable efforts to identify qualified employees in
the first Tiered Priority Area for no less than 60 days before
expng its search to the second Tiered Priority Area, and so forth.
2. Employment by Tenants of Owner and Developer. Owner and
Developer shall require each tenant conducting business at the
Property to make best efforts to recruit and hire employees who are
residents of the City or County according to the Tiered Priority
Areas, with a goal of having 10% of the workforce employed by
Owner and Developer at the Property to be residents of the City or
County. Tenants will be required to seek qualified employees in the
first Tiered Priority Area for a reasonable time before expanding its
search to the second Tiered Priority Area and so forth.
iv. Employment Policies. In connection with the Redevelopment of the
Property, the Owner and Developer agree that they and their general
contractor(s) will:
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1. Take definitive action in the recruitment, advertising and to attract
and retain minority and female contractors and subcontractors;
2. Provide a reasonable opportunity in the recruitment, advertising and
hiring of professionals, contractors and subcontractors residing
within the certain target areas of the City according to Tiered
Priority Areas.
3. Take reasonable definitive action in retaining employees regardless
of race, color, place of birth, religion, national origin, sex, age,
sexual orientation, gender identity, marital status, veterans and
disability status.
4. Maintain equitable principles in the recruitment, advertising, hiring,
upgrading, transfer, layoff, termination, compensation and all other
terms, conditions and privileges of employment.
5. Monitor and review all personnel practices to guarantee that equal
opportunities are being provided to all employees regardless of race,
color, place of birth, religion, national origin, sex, age, sexual
orientation, gender identify, marital status, veterans and disability
status.
Post in conspicuous places, availability to employees and applicants
for employment, notices, setting forth the non-discrimination
clauses of this Section.
In all solicitations and advertisements for employment placed by or
on behalf of Owner or Developer, state that all applicants will
receive consideration for employment without regard to race, creed,
color or national origin.
A jc applicant's criminal record will not serve as an automatic bar
cruitment or hiring provided that the Owner and Developer, and
general contractor retain the right to disqualify applicants for
employment or promotion, and to fire existing employees who
commit or have records of conviction for felony crimes involving
violence including but not limited to battery, robbery, sexual assault
and abuse, attempted murder, and murder.
v. Training Programs and Community Outreach. Owner and Developer
will coordinate with an organization experienced in implementing local
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preference job opportunities, and will coordinate efforts with the City to
develop training programs designed to train their employees who reside in
the Tiered Priority Areas for the job opportunities contemplated to exist at
the Property, including without limitation, coordinating with Miami -Dade
College's hospitality programs to review curriculum and assisting the City
in identifying and developing curriculum for hospitality training programs
it has or creates in the future. Owner and Developer agree to use
commercially reasonable efforts to place graduates of any such training
programs in permanent jobs in the Property.
vi. Job Fairs. Owner and Developer shall contract with an organization
experienced in implementing local job preference opportunities to conduct
job fairs and similar outreach in Little Haiti Area. At least two such events
will be conducted for construction jobs, and at least two such events will be
conducted for permanent jobs prior to commencement of construction of
each Phase of the Project.
c. Workforce Housing
i. Owner and Developer agree to set aside no less than 10% of the total
residential dwelling units constructed at the Property as Workforce
Housing.
ii. No fewer than 25% of said set -aside units shall be constructed in each phase
of the Property's development as those phases are described in Sheet of
the Design Guidelines.
iii. Nothing in this Agreement shall limit Owner and Developer's ability to take
advantage of any incentives currently provided by the City Code or Existing
Zoning, or any such incentives that may be provided in the future. Such
incentives include but are not limited to the deferral of or exemption from
any impact, development, or building permit fees, and reductions in off-
street parking requirements.
d. Relocation Assistance. For at least 12 months prior to the demolition of any
residential building located on the Properties, Owner and/or Developer will stop
leasing rental units existing on the Properties as they are vacated. Those vacated
units will be reserved for and offered to residents of those buildings proposed to be
demolished in connection with construction of Project Phase 1.
i. Vacated rental units will be made available to said residents at the same
terms of their existing rental agreement.
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ii. Owner and Developer will provide moving assistance to those residents of
Design Place that opt to relocate to vacated units elsewhere on the
Properties. That assistance will include helping them to move their personal
belongings to their new rental unit.
iii. When construction of Project Phase 1 is completed, relocated residents will
be given a first opportunity to relocate to Phase 1 of the Project. Owner
and/or Developer will allow residents who decide to relocated from the
existing apartment complex to the Project to lease a new unit in the Project
at their existing rent for no less than two years. East Ridge will again assist
residents opting to move into the new project with moving their personal
belongings to their new rental unit.
iv. The process described in paragraph above will be repeated for each phase
of the Project's construction.
e. Transportation and raffic Improvements.
i. Train Station.
1. Owner and Developer agree to make all commercially reasonable
lcefforts to secure construction of a train station for local and tri-
county passenger service in substantial compliance with the
SFRTA's proposal for its Tri-Coastal Link passenger rail line. Said
efforts may include but not be limited to: (1) lobbying efforts to
secure approvals and funding commitments from Miami -Dade
County, the SFRTA, the State of Florida or the federal government;
(2) the negotiation of construction and operating agreements with
applicable regulators and stakeholders; and (3) the securing of
governmental approvals necessary for the train station's
construction and operation.
2.
If successful in obtaining all approvals necessary for construction of
a train station, Owner and Developer agree to construct the station
on the Property and dedicate the portion of the Property where the
platform is constructed for use and train operator.
3. In the event that the Owner and Developer are unable to secure the
approvals necessary to construct a train station on the Property, the
Owner and Developer shall make all commercially reasonable
efforts to secure the extension of Miami -Dade County bus lines or
similar modes of transportation into the Property and to link with
the park -and -ride facility contemplated in subparagraph (ii) below.
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ii. Park -and -Ride Facility. Owner and Developer agree to construct a
subterranean parking facility in substantial compliance with Sheet of
the Concept Book (the "Park -and -Ride Facility"). Said parking facility will
be subject to the Parking Management Plan described in Section 16 of this
Agreement. Said parking facility, will be designed so that, upon
construction of the train station or other transportation facility described in
subparagraph (i) above, the facility may, subject to City approval and
issuance of an SAP Permit, be adapted to operate as a Park -and -Ride -
Facility wherein the general public may park their vehicles and access the
train station or other transportation facility.
iii. Trolley Stops. The Owner and Developer 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 and Developer will, at their
sole cost, construct the improvements necessary to provide up to two trolley
stops within the Property in substantial compliance with Sheet of the
Design Guidelines.
iv. Downtown Little Haiti Roadway Improvements.
Owner and Developer acknowledge and agree that NE 2
Avenue is in need of improvements to promote better
walkability and traffic calming along NE 2nd Avenue from
NE 54th Street north to NW 64th Terrace ("Roadway
Improvements"). Such Roadway Improvements may include
but are not limited to: sidewalks designed to accommodate
increased pedestrian activity; bicycle lanes; landscaping,
paving and hardscape improvements; right-of-way and
median improvements; utilities and infrastructure
improvements; thoroughfares; and streetscape.
er and Developer agree to contribute up to $750,000
and construction of such Roadway Improvements along
E 2nd Avenue from NE 54th Street north to NE 64th Terrace.
3. Owner and Developer may, decide in their sole discretion
whether to make the contributions toward construction of the
Roadway Improvements, (1) by making a cash contribution
to either Miami -Dade County or the City of Miami for the
express and sole purpose of the Roadway Improvements; or
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(2) by constructing the improvements subject to approval by
the City and, as necessary, the County.
4. In order to further foster a uniform aesthetic between the
SAP Area and the surrounding neighborhood the Developer
agrees to coordinate landscaping and right-of-way design
and improvements with City and County Depailtnent of
Public Works and stakeholders in downtown Little Haiti.
5. Owner's and Developer's full contribution toward the
Roadway Improvements shall be a condition to issuance of
a building permit for Project Phase 3.
v. Adjacent Traffic Improvements Along NE 2 Avenue. The Owner
and Developer will construct right-of-way improvements along NE
2 Avenue in substantial compliance with Sheet of the Design
Guidelines. Such improvements shall include but not be limited to:
1. Creation of a new median along NE 2 Avenue; and
2. Installation of new crosswalks with differentiated roadway surfaces
designed to calm traffic speeds such as modified surface textures,
polymer cement overlays, pavers, cobblestones, stamped pavement,
rumble strips, speed tables, etc.
vi. Traffic Improvements Along NE 54 Street. The Owner and Developer
will construct right-of-way improvements along NE 54 Street in substantial
compliance with Sheet of the Design Guidelines and the City's Traffic
Sufficiency letter dated August 8, 2016, a copy of which is attached as
Exhibit " ". Such improvements shall include but not be limited to:
1. Creation of a new median along NE 54 Street;
2. Pending the results of an 8-hour signal warrant analysis and
authorization by the County, the signalization of the intersection of
NE 54 Street and NE 3 Avenue, and the construction of a westbound
left -turn lane and an eastbound right -turn lane; and
Installation of new crosswalks with differentiated surfaces designed
to calm traffic speeds.
vii. FEC Greenway. The Owner and Developer shall construct the FEC
Greenway which includes pedestrian and bicycle paths, as described on
Sheet L-10 of the Design Guidelines.
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viii. Welcome Signage. If a location for such signage is identified and the design
is approved and permitted by all relevant government authorities, then
Owner and/or Developer will pay the reasonable costs of construction
and/or installing signage welcoming visitors to Little Haiti Area.
ix. Community Collaboration. As they plan for the Project's construction,
Owner and Developer will continue to collaborate with the Little Haiti
community to examine additional potential roadway improvements and
how those improvements can enhance conditions for residents. Owner and
Developer will examine, for example, whether a possible alignment of the
north and south portions of NE 3rd Avenue north of NE 54th Street can be
achieved while balancing residents' interest in preserving the residential
character of the T3-Zoned area north of the Project.
f. Office/Community Room for Area Non -Profit.
g.
i. To encourage the continued growth of civil society in Little Haiti and to
help encourage the Property's integration into the Little Haiti community,
Developer agrees to construct the approximately 2,000 square foot office
and community space in Building 9 as shown on Sheets and of the
De 'tGuidelines (the "Community Space") at its sole cost.
ii. Owner will lease the Community S . ® an established nonprofit entity
serving Little Haiti and with an emphasis on encouraging youth education,
athletic program, and community service. Said lease will provide for an
annual rent not to exceed $1.00 and a term of up to 30 years.
iii. As a condition of issuance of a Certificate of Occupancy any Phase 1
Construction on Lot 6 as identified on Sheet of the Design Guidelines,
Owner will submit to the City a memorandum of lease for the Community
Space showing compliance with the above lease terms.
Emergency Response Substation. The City and the Owner have identified a need
in the vicinity of the Property for a fire -rescue or police substation. To help address
that need, the Owner and the City agree that:
i. Election. The Parties shall mutually agree whether to proceed with the
permitting and construction of a substation for fire -rescue or police services
within 90 days of the Effective Date of this Agreement.
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ii. Location. The Substation Improvements contemplated in this section shall
be located in Building , as shown on Sheet of the Concept Book or
within 2,000 feet of the Property.
iii. Construction. The Owner shall timely construct, at its own cost, and
complete the Substation Improvements in substantial accordance with plans
approved by the City Manager, Planning Director, and the Fire or Police
Chief as applicable. Said plans will be on file with the City and deemed as
being incorporated by reference herein. The Owner will undertake the
construction in accordance with the Florida Building Code, the City Code,
Miami 21, and all other applicable laws and regulations. Owner's
construction of the Substation Improvements shall be limited to the
structure containing the substation and reasonable utilities and
telecommunications. Construction of the Substation Improvements shall
not include any property, improvements, fixtures, amenities, or equipment
not mentioned or implied in this Agreement. Construction of the Substation
Improvements shall meet t following minimum requirements, as
permitted by the City:
1. Intensity. The building Floor Area for the Substation shall not
exceed gross square feet (inclusive of mechanical and
ommon are
2. Parking. A total of assigned or dedicated on -site parking
spaces shall be provided for the use and operation of the Substation
Improvements.
Utilities Infrastructure. Owner shall provide reasonable utilities
including water lines, sewer lines, electric service, telephone
service, and telecommunication and information technology lines
win a sufficient operational state required to support the Substation
Improvements.
iv. Impact Fees. The Owner shall not be required to pay any Fire Impact Fees
or Police Impact Fees, as applicable, to the City for the areas dedicated to
the Substation Improvements.
v. Timing. The Owner will construct the Substation Improvements prior to
obtaining a Certificate of Occupancy for any building with a floor area of
more than 10,000 square feet during Phase 3 Construction.
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vi. Approvals. The City, as applicant, shall apply for and diligently pursue any
and all zoning, land use, and/or other approvals and entitlements issued by
the City, County, or and other governmental agencies as required to permit
the development and use of a fire -rescue or police substation at the Property
(the "Substation Approvals"). The Substation Approvals shall include all
such approvals or entitlements whether issued through administrative,
quasi-judicial, and legislative processes. Nothing in this Agreement,
including this Section of the Agreement, shall be construed as a waiver of
the City's governmental or police powers with regard to the Substation
Approvals.
vii. Lease. The Owner shall lease to the City the premises constituting the
Substation Improvements for the purpose of operating a fire -rescue or
police substation and subject to the terms of a separate lease agreement
acceptable to the City Manager, the Director of Real Estate Management,
Fire or Police Chief (as applicable), and the City Attorney (as to legal form).
Said agreement will provide, at a minimum, as follows:
1. Term and Renewals. The cease shall be for an initial term of 99
years. The City will be allowed ,to two renewals of 99 years each.
Rent. The City shall pay Owner an annual rent of $1.00.
Maintenance and Utilities. The City shall be responsible for
payment of all utilities and for maintenance and repair of the leased
premises and all improvements therein.
Condominium or Other Forms of Ownership. The lease
agreement shall expressly reserve the Owner's right to convert the
SAP Area or parts thereof, including the Substation Improvements
to a condominium or other collective form of ownership subject to
a master covenant at any time. The City hereby expressly agrees and
grants its prospective consent to permit such a conversion. In the
event that a portion of the SAP Area or the Substation Improvements
s to be so converted, the Owner shall convey and the City hereby
prospectively accepts the Substation Improvements in fee simple in
exchange for consideration of a one-time payment of ten dollars by
the City.
5. 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)
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whether private or public, and operational expenses (including but
not limited to maintenance costs) directly serving and attributable to
the use of the Substation Improvements. The Owner shall install
separate meters for electrical and water utilities for the Substation
Improvements at the Owner's sole cost and expense. The City shall
provide and have collected its own dumpster for solid waste
removal.
6. Taxes. The City's use of the Substation Improvements is solely of
the specific, exclusive municipal public purpose and essential public
service of providing a fire -rescue or police substation and is not
subject to ad -valorem taxation. In the event the County assess ad -
valorem taxes against the Substation Improvements, the Parties will
cooperate with the City to ensure that no taxes are assessed against
the Substation Improvements and shall take appropriate action to
ensure that the Substation Improvements remain tax exempt. In no
event shall the Owner or its successors, transferees, and/or assigns
be responsi l le for payment of any taxes assessed for the Substation
Improv e the City has taken possession.
Nuisance. The Lease Agreement 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.
ii. Impac Feeredit. The Parties agree that in consideration of the Owner's
construction and lease of the Substation Improvements, the City will grant
the Owner credit against the impact fees in connection with redevelopment
of the Property in accordance with the SAP as follows:
The City finds that the Substation Improvements add sufficient
capacity to the City's fire -rescue or police system, as applicable, to
accommodate the demand generated by redevelopment of the
Property pursuant to the SAP. Accordingly, the City shall review the
Owner's impact fee petition and may grant the Owner credit in the
amount of the Owner's ascertainable contribution against the Fire
Impact Fee or Police Impact Fee, as applicable, otherwise due
pursuant to Chapter 13 of the City Code for the overall
redevelopment of the Property including any residential,
commercial, or other component of the SAP.
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NOTE: THIS DRAFT IS PENDING AN UPCOMING MEETING WITH INTERESTED NEIGHBORHOOD STAKEHOLDERS AND
CONTINUED DISCUSSIONS THEREAFTER.
ix. Public Benefit. The Parties agree that in the event that the City does not
obtain the Substation Approvals necessary to construct or operate the
Substation Improvements, the Parties will negotiate a substitute,
comparable public benefit to serve in lieu of the Substation Improvements.
Any amendment to this Agreement must be done in accordance with the
procedures set forth in Florida Statutes and the City Code. The City does
not waive its police power, and nothing in this Agreement or this paragraph
shall be construed to waive or abrogate the City's police power with regard
to the review and approval or dis i'Yal of this Agreement or any
amendment to this Agreement.
h. Public Open Spaces. The Owner and Developer agree to provide publicly
accessible open spaces in the SAP Area in excess of the minimum Open Space
requirements of Miami 21 and the SAP, as follows:
i. Minimum Open Space. The Owner and Developer agree to provide
minimum area of approximately 295,343 square feet of Open Space and
210,850 square feet of Civic Space in substantial accordance with this
Agreement, the e . g Plan, and the Design Guidelines.
ii. Location. The general location and dimensions of the Public Open Spaces
shall be substantially in accordance with this Agreement and the SAP
(including Sheet of the Design Guidelines), or as otherwise mutually
agreed by the Parties.
iii. Dedication of CS Zoned Parks. Within 180 days after issuance of final
certificate of occupancy for the final Phase of Project Construction, the
Owner will formally dedicate to the City those portions of the property
zoned CS for public use.
v
Events. From time to time, the Owner and Developer may sponsor or
otherwise partner with organizations to hold temporary and special events
in the SAP Area including in and around the Public Open Spaces. Such
events will be pursuant to the terms and requirements of this Agreement,
including those in paragraph 15, and the Existing Zoning.
v. Dog Park. The Owner and Developer agree to dedicate a portion of the
Open Space located in the Property for use as a dog park(s).
vi. Maintenance. The Owner and Developer shall maintain, operate and
supervise the Public Open Spaces, pursuant to any applicable maintenance
standards as mutually agreed by the City and the Owner and Developer.
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NOTE: THIS DRAFT IS PENDING AN UPCOMING MEETING WITH INTERESTED NEIGHBORHOOD STAKEHOLDERS AND
CONTINUED DISCUSSIONS THEREAFTER.
vii. Park Phasing. The Owner and Developer shall provide the Public Open
Spaces in phases or portions of phases in substantial accordance with the
SAP phasing schedule provided in Sheet of the Design Guidelines.
viii. Landscape Improvements In Public Right Of Way. The Owner and
Developer shall landscape and construct improvements to certain rights -of -
way immediately fronting the Property in substantial accordance with
Sheets through of the Design Guidelines. In order to further foster
a uniform aesthetic between the SAP Area and surrounding areas, the
Owner and Developer agree to coordinate landscaping and right-of-way
design and improvements with the Department of Public Works, and Miami
Jewish Health Systems. The proposed right-of-way improvements
described herein shall be reviewed and approved by the City's Planning
Department, Zoning Department, and Public Works Department.
ix. Parks Impact Fee Credit. The Parties agree that in consideration of the
Owner and Developer's contribution of the Public Open Spaces and
construction of related improvements to said spaces, the City will grant the
Owner and Developer the credit against the impact fees in connection with
R-+.-<, • �ment of the Property as follows:
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 and Developer's impact fee petition and shall
grant the Owner and Developer credit in the amount of their
ascertainable contribution against the Parks Impact Fee otherwise
due pursuant to Section 13-12 of the City Code for the overall
Redevelopment of the Property including any residential component
of the SAP.
i. Arts and Culture. Owner and Developer agrees that properties fronting NE 2nd
Avenue from the NE 54th Street north to NE 64th Terrace (the "Art Corridor")
will be considered part of the SAP Development Site for the limited purpose of
satisfying the requirements of the City's Art in Public Places Program. The Owner
and Developer agree to contribute to Miami's rich arts community as follows:
1. Arts Programming. The Owner and Developer agree to collaborate
with local arts groups, including but not limited to the Miami -Dade
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College of Music, the Haitian Heritage Museum, and the Little Haiti
Cultural Center, to identify year-round opportunities for local artists
to display or perform their art in the Property's public spaces.
2. Haitian Art in Public Places. The Owner and Developer agree that
no less than 30% of the public art provided through the City's Art in
Public Places Program will reflect the influence of Haitian or Haitian -
American art and culture. All public art installed by Owner or
Developer within the Art Corridor (including any appreciation of said
public art) shall remain the sole property of Owner or Developer.
3. Local Art in Public Place. he Owner and Developer agree that no
less than 30% of the public art provided through the City's Art in
Public Places Program will be provided by Miami -based artists.
14. Environmental. The SAP is designed to make a significant contribution to the City's tree
resources by preserving existing mature tree resources and creating new Public Open
Spaces where such resources can be showcased. In light of that contribution, the City, the
Owner, and the Developer agree that the Owner and Developer will comply with the intent
and requirements of Chapter 17 of the Ci Code by serforming tree replacement as
follows.
a.
Off -site Replacement Trees. Notwithstandi requirements of Section 17-6(e)
of the City Code, where tree replacement within the Property is not possible, the
Developer 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 and Developer further agree 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 and
Developer agree to water, trim, root, prune, brace or undertake any other necessary
maintenance of the trees it plants, as may be required by the City's Public Works
Department, for the term of this Agreement. The Owner and Developer 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 and Developer shall install any needed irrigation
and corresponding water meters to support the trees' growth. The Owner and
Developer shall water, trim, root, prune, brace, or undertake any other necessary
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maintenance as may be required for trees located within the SAP Area for the term
of this Agreement. The Owner and Developer further agree to warranty each tree
planted in the SAP Area for one year after its planting.
c. Tree Replacement Chart. The tree replacement chart below shall be used to
determine whether the Owner and Developer have satisfied the tree replacement
requirements set forth in Section 17-6(a) of the City Code. The chart below replaces
and supersedes Charter 17.6.1.1 in the City Code.
Total diameter of tree(s)
(sum of inches
Tree Replacement Chart
to be removed
at DBH)
Total inches of replacement DBH
required (12' minimum tree height)
2"
—3"
2"
4"
—6"
4"
7" —12"
8"
13"
—18"
12"
19"
—24"
16"
25"
—30"
20"
31"
—36"
24"
37"
—42"
28"
43"
—48"
32"
49"
—60"
40"
To determine whether the replacement requirements have been satisfied, calculated
the total sum in in inches of the diameter of the trees removed. The size of the
replacement trees diameter at breast height (DBH) must equal the total inches of
replacement DBH set forth in the above chart. Diameter measurements shall be
rounded up to the nearest inch. If the sum of the diameter of trees to be removed
exceeds a total of 60 inches, the additional inches shall be added cumulatively from
the top of the chart, down to the bottom of the chart to calculated the number of
DBH for replacement trees.
15. Special Events. To the extent governed by the laws and regulations of the City, the City
hereby finds and agrees that there is hereby created a special event district encompassing
the SAP Area ("District").
a. Boundaries of District. There is hereby created a special event district
encompassing the SAP Area.
b. Purpose and Intent of District. To ensure that "special events" occurring within
parks, rights -of -way, and other public places located within the district boundaries
take place in accordance with prescribed rules and regulations to safeguard public
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resources and interests of the community and are designed to encourage and market
the district for development of business, commerce and tourism.
c. Restrictions Established. The following restrictions shall apply to the district,
excluding permitted activities undertaken on 3.5 Avenue:
d.
i. No more than two events per month. The term "event," for the purpose of
this section, is hereby defined as an activity where any one of the following
conditions occur within the special events District:
1. Any selling of alcoholic beverages in the public rights -of -way, or in
city parks, other than in lawfully permitted Sidewalk Cafes;
2. Any pyrotechnics display;
3. Any temporary, partial use of, complete or partial obstruction of
public streets or rights -of -way pursuant to section 54-6 or section
54-6.3 of this Code connected with an activity satisfying the criteria
set forth in the other subsections herein;
4. Any parade or procession, other than funeral processions, of more
than vehicles, floats, bands or marching units;
5. Outdoor concerts or fairs with an anticipated attendance of more
than 50 persons;
Outdoor theater shows or plays with an anticipated attendance of
more than 150 persons;
Any temporary vending or concession permit conducted in the
public rights -of -way or parks pursuant to sections 31-50 and 38-65
of this Code; or
Any use of mechanical rides or amusements.
ii. Only one of the two events may involve street closures.
iii. The two events shall not take place on successive weekends.
The City finds and the Owner and Developer Agree that the above -listed activities
shall not exceed the maximum permitted occupancy of the SAP Area, and must not:
i. substantially interrupt the safe and orderly movement of other traffic
contiguous to the special event;
ii. substantially diminish routine police service levels to the entire community;
iii. unduly interfere with the proper fire and police protection or ambulance
service to areas contiguous to the special event as a result of the
concentration of persons and vehicles;
iv. interfere with the movement of firefighting apparatus en route to an
emergency call; and
v. present an unreasonable danger to the health and safety of the public.
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16. Valet Parking. The Owner and Developer may establish a uniform 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.
17. Parking Management Program. Parking within the SAP Area shall be implemented
through a parking management program. The parking management program shall track
existing and anticipated parking through and interactive spreadsheet maintained by the
Planning Director (the "Parking Management Program"). Parking usage shall be debited
from the total parking pool available within the SAP Area. Parking Availability shall be
added to the total parking pool available within the SAP Area. The Parking Management
Program shall incorporate the parking plans attached here as Exhibit . The numbers and
figures provided in the Parking Management Program may be revised and updated
accordingly from time to time by the Planning Director including at such times as certain
interim parking is discontinued and permanent parking becomes available.
a. Interim Parking. For the purposes of accommodating the phased Redevelopment of
the Property, interim and temporary parking on unimproved and partially improved lots
by valet service 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 identified in the Parking Management Program. The Planning
Director may approve the design of the interim parking lots prior to issuance of a
building permit for improvements. In the event that valet service is no longer provided
for interim parking in the SAP Area, Owner and Developer shall comply with the
plicable parkin . requirements.
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18. Replatting, Street Closure, and Dedications.
a. To the extent necessary, the Owner and Developer intend to 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.
b. In the event that the Owner and Developer pursue replatting of the Property, the
Owner and Developer agree to include an annotation on the plat indicating the Civic
Space Plaza along the south side of the Property, as shown on Sheet of the
Concept Plan, as a potential point of connection for a future southbound right-of-
way connecting the Property to the parcel to the immediate south.
19. Retail Specialty Center Designation. Pursuant to Chapter 4 of the City Code, the SAP is
designated as two "Retail Specialty Centers."
20. Alcoholic Beverage Sales. Notwithstanding the requirements of Section 4-3.2 of the Code
or anything to the contrary in Miami 21, Planning and Zoning Advisory Board, and the
City Commission approval shall not be required for bars (including taverns, pubs and
lunges), nightclubs, and supper clubs as principal uses proposed to be located within SAP.
Said establishments shall be authorized pursuant to the issuance of a Warrant. The Planning
Director shall consider the criteria set forth in Section 4-3.2.1 of the City Code when
evaluating such Warrant applications. The number of establishments selling alcoholic
beverages permitted within each Retail Specialty Center in the SAP Area 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 (Le., 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 beverage
establishments, including but not limited to, required distances from churches, residential
districts, schools, and other alcoholic beverage establishments, whether within or outside
the SAP Area, shall not apply to establishments within the SAP Area.
21. 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
and Developer anticipate that phased Redevelopment of the Property will follow the
phasing described on Sheet of the Design Guidelines, the City acknowledges that a
variety of factors including but not limited to economic considerations and site conditions
may require changes to the scope and sequence of each phase. Accordingly, the Owner
and Developer may so modify the scope and sequence of each phase without prejudice.
22. Public Facilities. As of the Effective Date, the Owner and Developer shall conduct an
extensive analysis of the Public Facilities available to serve the Project. In the event that
the Existing Zoning and/or the Comprehensive Plan require the Owner and Developer to
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provide Public Facilities to address any deficiencies in required levels of service
occasioned by future development within the Property or as a result of the development of
the Project, the Owner and Developer shall provide such Public Facilities consistent with
the timing requirements of Section 163.3180, Florida Statutes (2016), or as otherwise
required by Chapter 13 of the City Code, as amended from time to time, if applicable.
23. Compliance with Fire/Safety Laws. The Owner and Developer shall at all times in the
development and operation of the Project comply with all applicable laws, ordinances and
regulations including life safety codes to insure the safety of all Project and City residents
and guests. Specifically and without limitation, the Owner and Developer will install and
construct all required fire safety equipment and water lines with flow sufficient to contain
all possible fire occurrences.
24. Local Development Permits. The SAP may require additional permits or approvals from
the City, County, State or Federal government and any division thereof. Subject to required
legal processes and approvals, the City shall to take all reasonable steps to cooperate with
and facilitate all such approvals, including acting as an applicant. Such approvals include,
without limitation, the follprovals and permits and any successor or analogues
approvals and permits.
(a) Subdivision pla .nd/or waive
(b) Covenant or Unity or Title acceptance;
(c) Building and Public Works permits;
(d) Certificates of use and/or occupancy,
(e) Stormwater Permits; and4
(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
shall be vested solely in the City Manager, with the recommendation of the Planning
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.
25. Consistency with Comprehensive Plan. The City finds that development of the SAP is
in conformity with and is consistent with the Comprehensive Plan. In the event that the
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Existing Zoning or the Comprehensive Plan requires the Owner and Developer to provide
additional Public Facilities to accommodate the SAP, the Owner and Developer will
provide such Public Facilities consistent with the timing requirements of Section 163.3180,
Florida Statutes (2016). The Owner and Developer shall be bound by the City impact fees
and assessments in existence as of the date of obtaining a building permit, per Chapter 13
of the Code.
26. 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 and Developer 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 (2016), 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 relevant state or federal laws.
27. 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
and Developer in achieving its development and construction milestones. The City will
accommodate requests from the Owner and Developer'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 and Developer 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.
Notwithstanding t • - going, the City shall not be obligated to issue development permits
to the extent the Owner and Developer does not comply with the applicable requirements
of the Zoning, the Comprehensive Plan, this Agreement and applicable building codes.
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28. 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, Miami 21,
the SAP Regulating Plan, and this Agreement.
(b) Nothing herein shall prohibit an increase in the density or intensity of development
permitted on the Program 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 Owner and 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 or
equitable estoppel, obtained or held by the Owner and Developer or their successors or
assigns to continue development of the Property in conformity with Existing Zoning
and active prior and subs a uent development permits or development orders granted
by the City.
29. Annual Review.
(a) The City shall review the Development that is subject to this Agreement once every
twelve (12) months, commencing twelve (12) months after the Effective Date. The City
shall begin the review process by giving notice to the Owner and Developer, a
minimum of thirty (30) days prior to the anniversary date of the Agreement, of its
intention to undertake the annual review of this Agreement.
(b) Any information required of the Owner or Developer during an annual review shall be
limited to that necessary to determine the extent to which the Owner or Developer is
proceeding in good faith to comply with the terms of this Agreement.
(c) If the City finds on the basis of competent substantial evidence that the Owner or
Developer has not proceeded in good faith to comply with the terms of the Agreement,
the City may terminate or amend this Agreement after providing thirty (30) days written
notice to the Owner or Developer and after a public hearing.
30. 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,
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4
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:
To the Developer:
With a copy to:
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
North Miami, FL 33181
East Ridge, LLC
ATTN: Justin Podolsky
5205 NE 2nd Court
Miami, FL 33137
Weiss Serota Helfman Cole & Bierman, P.L.
ATTN: Edward Martos
2525 Ponce de Leon Boulevard, Suite 700
Coral Gables, Florida 33134
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.
31. 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.
32. Common Area Maintenance. The Owner and Developer will create proper to the
conveyance of any portion of the Property (less than the entire Property), an association or
other entity which shall provide for the maintenance of all common areas, private
roadways, cross -easements and other amenities common to the Property. This Agreement
shall not preclude the owner(s) of the Property from maintaining their own buildings or
common areas not common to the Property outside the control of the association. The
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instrument creating the association or other entity shall be subject to the reasonable
approval of the City Attorney.
33. 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.
34. Enforcement. The City, its successors or assigns, and the Owner and Developer 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.
35. Emergency Management and Mitigation Plan. the issuance of a Certificate of
Occupancy, Temporary Certificate of Occupancy ("TCO"), or the equivalent for the first
new single -use building in the Property, the Owner and Developer, as required by the
City's Comprehensive Plan (Policy CM4.3.4.) shall enter into a binding agreement with
the City regarding an Emergency Management and Mitigation Plan ("Emergency Plan")
detailing how the safety of people and property shall be accounted for and maintained in
the event of a natural disaster, fire, act of God, or other similar event. The Emergency Plan
shall detail vehicle and pedestrian circulation, security systems, and other preventative and
protective measures and mitigation readily available in the Property. The Owner and
Developer, or their successors, heirs, or permitted assigns, shall provide an updated copy
of the Emergency Plan prior to the issuance of a TCO or equivalent for each new building
in the future.
36. 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
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NOTE: THIS DRAFT IS PENDING AN UPCOMING MEETING WITH INTERESTED NEIGHBORHOOD STAKEHOLDERS AND
CONTINUED DISCUSSIONS THEREAFTER.
NOTE: THIS DRAFT IS PENDING AN UPCOMING MEETING WITH INTERESTED NEIGHBORHOOD STAKEHOLDERS AND
CONTINUED DISCUSSIONS THEREAFTER.
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.
37. 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
allow by law.
38. 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.
39. Default.
(a) The Owner or Developer shall be in default under this Agreement if any of the
following events occur and continue beyond the applicable grace period: the Owner or
Developer fails to perform or breaches any term, covenant, or condition of this
Agreement which is not cure 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 or Developer shall
not be in default if it commences to cure such breach within said thirty (30 day period
and diligently prosecutes such cure to completion.
(b) The City shall be in default under this Agreement if the City fails to perform or breaches
any term, covenant, or condition of this Agreement and such failure is not cured within
thirty (30) days after receipt of written notice from the Owner or Developer 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.
40. Remedies.
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NOTE: THIS DRAFT IS PENDING AN UPCOMING MEETING WITH INTERESTED NEIGHBORHOOD STAKEHOLDERS AND
CONTINUED DISCUSSIONS THEREAFTER.
NOTE: THIS DRAFT IS PENDING AN UPCOMING MEETING WITH INTERESTED NEIGHBORHOOD STAKEHOLDERS AND
CONTINUED DISCUSSIONS THEREAFTER.
(a) Neither party may terminate this Agreement upon the default of the other party, but
shall have all of the remedies enumerated herein.
(b) Upon the occurrence of a default by a party to this Agreement not cured within the
applicable grace period, the Parties agree that any party may seek specific performance
of this Agreement and that seeking specific performance shall not waive any right of
such party to also seek monetary damages, injunctive relief or any other relief other
than termination of this Agreement. The City hereby acknowledges that any claim for
damages under this Agreement is not limited by sovereign immunity or similar
limitation of liability.
41. 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 permid early termination hereof
42. Merger. This Agreement and the exhibits anappendices 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.
43. 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.
44. 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 Project, 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
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NOTE: THIS DRAFT IS PENDING AN UPCOMING MEETING WITH INTERESTED NEIGHBORHOOD STAKEHOLDERS AND
CONTINUED DISCUSSIONS THEREAFTER.
NOTE: THIS DRAFT IS PENDING AN UPCOMING MEETING WITH INTERESTED NEIGHBORHOOD STAKEHOLDERS AND
CONTINUED DISCUSSIONS THEREAFTER.
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.
45. Recording. This Agreement shall be recorded in the Public Records of Miami -Dade
County, Florida at the Developer's expense and shall inure to the benefit of the City. A
copy of the recorded Development Agreement shall be provided to the City Clerk and City
Attorney within two (2) weeks of recording.
46. Representations Regarding Authorization to Execute. Each party represents to the
others 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.
47. No Conflict of Interest. The Owner aLi veloper agree to comply with Section 2-612 of
the City Code as of the Effective Date, ,respect to conflicts of interest.
48. Counterparts. This Agreement may be exec `'$` ° Ott'= �o (2) or more counterparts, each of
which shall constitute an original but all of wh`"v<`;when taken together, shall constitute
one and the same agreement.
NOW WHEREFO' ave cau" this to buly executed.
IN WITNESEREO'` `"'` . °` ave bexecuted this day of , 2018.
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NOTE: THIS DRAFT IS PENDING AN UPCOMING MEETING WITH INTERESTED NEIGHBORHOOD STAKEHOLDERS AND
CONTINUED DISCUSSIONS THEREAFTER.