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HomeMy WebLinkAboutSupporting DocumentsX\X A ilk _III, fi B E RCOW RADE LL & FERNAND EZ ZQNINCw, LANA USE AND LAW Direct: 305-377-6227 E -Mail: Wapanes(a).BRZoningt_aw.eom VIA HAND DELIVERY October 8, 2015 Francisco Garcia, Director Department of Planning & Zoning City of Miami Riverside Center 444 SW 2nd Avenue, 4th Floor Miami, FL 33130-1910 Re: Miami River Special Area Plan (SAP): Executive Summary Dear Mr. Garcia: This law firm represents CG Miami River, LLC (the "Developer") the owner of the land bound on the north by the Miami River, on the south by SW 7th Street, on the east by SW 2nd Avenue, and on the west by SW 3rd Avenue in the City of Miami (the "City"). See Exhibit A, Properties List. The Developer and the City serve as co - applicants with respect to the instant application (collectively, the "Applicant"). Proper . CG Miami River, LLC owns approximately 6.2 acres located at 257 SW 7 Street, 233 SW 7 Street, 244 SW 6 Street, 635 SW 3 Avenue, 243 SW 7 Street, 260 SW 6 Street, 242 SW 5 Street, 621 SW 3 Avenue, 224 SW 6 Street, 220 SW 6 Street, 501 SW 3 Avenue, 645 SW 3 Avenue, 252 SW 6 Street, 401 SW 3 Avenue, 253 SW 7 Street, 219 SW 7 Street, and 275 SW 6 Street, as well as three vacant parcels ("CG Parcels"). As previously indicated, these parcels are located within the bounds of the Miami River to the north, SW 7th Street to the south, SW 2nd Avenue to the east, and SW 3rd Avenue to the west. The City owns Jose Marti Park, located immediately northwest of the CG Parcels. Jose Marti Park extends northwest along the Miami River beginning on the north side of SW 3 Avenue and terminating at SW 2 Street. At the time of acquisition, the northern portion of the CG Parcels contained an entertainment complex; the central portion contained some former warehouse structures; and the southern parcel contained residences, vacant land, and a former automotive or marine -related structure. These structures contained an assortment of uses including bar/nightclubs (northern portion); a marine supply store/warehouse use (central portion); an abandoned adult "megastore," a print shop, vacant Iand, and SOLITHEAST FINANCIAL CENTER • 200 SOUTH BISCAYNE BOULEVARD, SUITE 850 • MIAMI, FLORIDA 33131 PHONE. 305.374.5300 • FAX. 305.377.6222 • WWW.BRZONINGLAW.COM Mr. Francisco Garcia October 8, 2015 Page 2 derelict residences (southern portion). These uses were all located adjacent to the recently updated Jose Marti Park and Gymnasium and a Publix supermarket to the west, and the SW 2 Avenue Bridge and Storage Mart to the east. The majority of the CG Parcels, with the exception of the two parcels abutting the Miami River, are designated "Restricted Commercial" by the Miami Comprehensive Neighborhood Plan, 2020 Future Land Use Plan Map ("FLUM"). The two riverfront parcels are designated as "industrial" according to the FLUM, while Jose Marti Park is designated "Recreation." The FLUM also designates the CG Parcels as within the Little Havana Density Increase Area (RDIA), Urban Center Business District and Empowerment Zone. Consistent with the land use designations, the CG Parcels are zoned D3 Waterfront Industrial and T6 -36B-0 Urban Core, according to the Miami 21 Zoning Code ("Miami 21 "). The City's Jose Marti Park is zoned as CS Civic Space. _ i. I' -T N Figure 1. Miami River SAP Area Proposed Development. Miami 21 contains specific provisions for the Special Area Plan ("SAP") process; a process which allows areas of more than nine (9) abutting acres to be master planned to allow greater integration of public improvements, infrastructure, and design. CG Miami River, LLC along with the City as co -applicant, is requesting approval of an SAP to permit the CG Parcels to be developed in accordance with the proposed SAP design guidelines, regulatory plan, and Chapter 163 Development Agreement. More specifically, this will allow the Developer and the City to integrate the CG Parcels, public rights-of-way, and portions of Jose Marti Park into an SAP for the master -planning, designing, permitting and construction of public benefit improvements ("Miami River SAP"), See Figure 1. Miami River SAP Area, above. It should be noted that the City will continue to own all public lands, and that there will be no changes to the underlying land use or zoning as a result of inclusion the City's lands in the Miami River SAP, The Miami River SAP will consist of five (5) phases of development, which will include four approximately sixty -story towers, two three-story structures, and an active riverwalk public promenade. The CG Parcels will feature commercial, office, residential, and lodging uses, as well as recreational and commercial working BCRCOW RADGLL & FERNAN DEZ ZO NINQ, 1-AN1:3 USE ANo ENVIRONMENTAL LAW Mr. Francisco Garcia October 8, 2015 Page 3 waterfront uses. The centerpiece of project, however, will be the Miami River, public plazas, public riverwalk promenade, and Jose Marti Park. In total, the project will contain approximately 1,678 residential units, 330 lodging units, 66,541 square feet of office space, and 176,350 square feet of commercial. As previously indicated, the majority of the CG Parcels are designated Restricted Commercial according to the FLUM. The Restricted Commercial land use designation permits residential density of up to a maximum of 150 dwelling units per acre. However, the CG Parcels are also located within the Little Havana Residential Density Increase Area, which permits residential density of up to a maximum of 200 dwelling units per acre, subject to the underlying zoning. A companion Iand use plan amendment will establish a new Residential Density Increase Area (RDIA) to permit the development of up to 400 dwelling units per acre within the portion of the CG Parcels designated Restricted Commercial land use on the FLUM. Notably, the existing underlying zoning district permits the proposed Floor Lot Ratio (FLR) and greater intensity than is proposed. Further, the proposed residential density increase will be compatible with the permitted densities both to the north and the east of the CG Parcels area, which allow densities of up to 1,000 and 500 dwelling units per acre, and transition to the Little Havana RDIA south of SW 7 Street, a major thoroughfare through the urban core. No changes are proposed to the Industrial and Port of Miami River FLUM designations. Proposed Benefits. The Miami River, Miami River Corridor, surrounding residents of the City, and the community -at -large will all greatly benefit from this project. Benefits can be categorized into three overarching categories: safety, activation, and public access. Safety. Although certain that this area has incredible potential, it is also true that this area is known for containing some unpleasant elements. The Miami River SAP proposal will supplant the existing assortment of questionable uses and transients with a sustainable, mixed-use neighborhood activated by residents, patrons, and visitors. The SAP will introduce coherent street furniture that includes street lighting along the riverwalk promenade from the SW 2 Avenue Bridge through Jose Marti Park, and 24 hour uses such as residential and lodging units with the accompanying security. In addition, proposed public benefit improvements to 1-95 and surrounding State and local roads will alleviate the existing background traffic conditions and significantly improve the surrounding transportation corridor. Together, these factors will transform this area into a safe, welcoming neighborhood, Activation. The project's focal point is the community access via the public riverwalk promenade. Each phase is designed to be unique and attractive from any BERCOW RADELL & FERNAN DEZ ZONINQ, 1. -AND USE AND ENVtnOhlME=-NTAL LAW Mr. Francisca Garcia October 8, 2015 Page 4 vantage. Further, the Applicant is proposing to activate the riverfront with public access boats slips, commercial establishments, restaurants, and public gathering spaces, including an outdoor theater with wall -cast opportunity, roundabouts, and public art. Verdant landscaping including green roofs, cohesive hardscaping and street furniture, and public amenities will create a sense of place that residents, patrons and visitors will flock to, both by land and river. The unique working waterfront vistas will be enjoyed by boaters and pedestrian visitors alike, ultimately creating a new sense of vibrancy along the Miami River Corridor, and in this forgotten area abutting several public resources: Jose Marti Park, the City's Miami Riverside Center, the Miami River, and the SW 2 Avenue Bridge. Public Access, The Applicant is proposing a host of public improvements to the project area and its surroundings that will substantially improve existing conditions. These improvements include expanding existing public amenities and creating a new public riverwalk promenade which extends from the SW 2nd Avenue Bridge through Jose Marti Park. Improvement of existing amenities includes, for example, updating the riverwalk in Jose Marti Park, the renovation of the plaza and pool areas within Jose Marti Park, the extension of existing Miami River Corridor signage, and proposed landscaping (including legacy trees) and hardscaping. New amenities include the creation of streetscapes with pedestrian and cyclist access throughout the Miami River SAP, creation of a children's fountain and play area, and the creation of public gathering spaces along the Miami River. A draft list of proposed public benefits to accompany the Applicant's Chapter 163 Development Agreement has been included in this submittal. The cohesive design of the proposed public amenities and semi-public low-rise structures abutting the Miami River will create a sense of place for residents and visitors alike. Further, the Applicant seeks to encourage access of the project both by land and water. This includes significant improvements to the surrounding transportation infrastructure including 1-95, SW 7 Street, and SW 3 Avenue; the introduction of an additional access way and view corridor to the Miami River, through the center of the CG Parcels, currently referred to as "2.5 Avenue"; and the establishment of an on-site City Trolley stop. From the Miami River, the Applicant is proposing to permit public mooring access to the permitted slips within the project, which will provide boaters with direct access to the retail, restaurant, and riverwalk amenities immediately adjacent to the Miami River. The Applicant is also proposing a water taxi stop, which will provide residents, patrons and visitors without access to private watercraft an opportunity to access the project from the River and encourage transit from Bayside and Marlins Stadium. The project will become a destination which benefits the City's residents, civically, culturally and economically. BERCOW RADELL & FERNAN DEZ 2--01.11rVea. LAtJo USE AND ENVIRONMEN"7`AL t_AW Mr. Francisco Garcia October 8, 2015 Page 5 Accordingly, we respectfully request the City's favorable review of the Miami River SAP and look forward to continuing to work with the City's administration to realize this public-private partnership that will help transform the City's urban core. Should you have any questions or comments, please do not hesitate to phone me at 305.377.6227. Very truly ours, Melissa Tapanes Llahues Enclosures cc: Ari Pearl Carli Koshal, Esq. BERcow RADELL & FERNAN Dc Z ZgNgNCs. LANG USE AIV[} ENVtRQNMENTRL L -^W CG Miami River: List of Properties Folio Number Address 102040001080 621 SW 3 AVE 102040001060 645 SW 3 AVE 102040001020 224 SW 6 ST 102040001010 220 SW 6 ST, 215-217 SW 7 ST 102040001030 244 SW 6 ST 102040001130 219-225 SW 7 ST 102030801010 242 SW 5 ST 102040001050 260 SW 6 ST 102040001110 243 SW 7 ST 141380490030 401 SW 3 AVE 102030801070 102040001070 635 SW 3 AVE 102040001100 253 SW 7 ST 102040001120 233 SW 7 ST 102030801080 102030801020 275 SW 6 ST 102040001090 257 SW 7 ST 102030801011 501 SW 3 AVE 102040001040 252 SW 6 ST 102030801040 Development Agreement Draft 10/8/15 DEVELOPMENT AGREEMENT BETWEEN CITY OF NHANH, FLORIDA AND CG NHANH RIVER OWNER, LLC, REGARDING APPROVAL OF THE NHANH RIVER SPECIAL AREA PLAN AND RELATED DEVELOPMENT This is a Development Agreement ("Agreement") made this day of , 2015 between CG Miami River, LLC, a Delaware corporation, (the "Developer" and "Owner") and the City of Miami, Florida, a municipal corporation and a political subdivision of the State of Florida (the "City") (the Developer and the City are together referred to as the "Parties"). WITNESSETH WHEREAS, the Developer is the fee simple owner to approximately 6.2 acres of property in Miami -Dade County, Florida, shown and legally described in Exhibit "A", located between SW 7th Street on the south, the Miami River on the north, SW 2nd Avenue on the east, and SW 3rd Avenue on the west, within the City (the "Property"); and WHEREAS, the Property is designated Industrial/Port of Miami River and Restricted Commercial on the Future Land Use Map, within the Urban Central Business District ("UCBD") and the Little Havana Residential Density Increase Area according to the Miami Comprehensive Neighborhood Plan ("Comprehensive Plan"), shown in Exhibit "B"; and WHEREAS, the Property is impacted by the Coastal High Hazard Area along the Miami River; and WHEREAS, the Property is zoned D3 Waterfront Industrial and T6 -36B-0 Urban Core, according to the Miami 21 Zoning Code ("Miami 21 "), shown in Exhibit "C"; and WHEREAS, the Property is currently underutilized in that it consists of vacant and underdeveloped lots; and WHEREAS, the Property is located in an Empowerment Zone for which the City envisions redevelopment through community-based partnerships to encourage economic revitalization and sustainable community development; and WHEREAS, the current status of the Property is inconsistent with the City's vision to develop a world class downtown, and wishes to encourage development of the Property; and WHEREAS, the City and the Developer wish to redevelop the Property as a high density, mixed use, pedestrian oriented urban development providing much needed retail uses and amenities for the urban center; and WHEREAS, a process exists within Miami 21 which allows parcels of more than nine (9) abutting acres to be master planned to allow greater integration of public improvements and infrastructure, and greater flexibility so as to result in higher or specialized quality building and streetscape design; and #550255.doc Development Agreement Draft 10/8/15 WHEREAS, the result of this master planning process is known as a "Special Area Plan" ("SAP"); and WHEREAS, the City is the fee simple owner of approximately four (4) acres of property (collectively, the "City -owned Property") in Miami -Dade County, Florida, shown in Exhibit "D", adjacent to the Property and located along the Miami River, within the City, and said City -owned Property includes certain City park areas and rights-of-way, and abuts certain submerged lands owned by the State of Florida ("State") through the Board of Trustees of the Internal Improvement Fund ("State Submerged Lands") also shown in Exhibit "D;" and WHEREAS, on April 30, 2015, the Developer filed an application with the City for approval of the Miami River SAP with a total of approximately 10.2 acres of land shown in Exhibit "E," including certain portions of the City -owned Property and the abutting State Submerged Lands, shown in Exhibit D (collectively, "SAP Application Area"), in order to redevelop the Property as a mixed use development with residential and lodging units, retail, restaurants, working waterfront uses, office, and other amenities, including a public riverwalk which will cross the City -owned Property and the abutting State Submerged Lands (the "Miami River SAP" or the "Project"); and WHEREAS, the City serves as co -applicant for approval of the Miami River SAP; and WHEREAS, the Miami River SAP's location on the Miami River will allow for use and enjoyment of the Miami River by its residents and patrons, and the general public as well; and WHEREAS, the Miami River SAP will create certain recurring fiscal benefits for the City's tax base as well as much needed temporary and permanent jobs; and WHEREAS, the City and the Developer wish for the development of the Project to proceed substantially in accordance with the "Miami River SAP Regulating Plan" and "Design Guidelines" attached as Exhibit "F"; and WHEREAS, the City and the Developer wish for development of the Miami River SAP to proceed in a manner which is consistent with the Comprehensive Plan, Miami 21, the City Charter, the Miami River Greenway Action Plan, and the Miami River Corridor Urban Infill Plan; and WHEREAS, the lack of certainty in the approval of development can result in a waste of economic and land resources, discourage sound capital improvement planning and financing, escalate the cost of housing and development, and discourage commitment to comprehensive planning; and WHEREAS, as a condition to the approval of the Miami River SAP, the Developer must enter into a Development Agreement pursuant to Section 3.9. Lf. of Miami 21; and WHEREAS, assurance to a developer that it may proceed in accordance with existing #550255.doc Development Agreement Draft 10/8/15 laws and policies, subject to the conditions of the Development Agreement, strengthens the public planning process, encourages sound capital improvement planning and financing, assists in assuring there are adequate capital facilities for the development, encourages private participation in comprehensive planning, and reduces the economic cost of development; and WHEREAS, the City Commission pursuant to Ordinance adopted on October 22, 2015 has authorized the City Manager to execute this Agreement upon the terms and conditions as set forth below, and the Developer has been duly authorized to execute this Agreement upon the terms and conditions set forth below; and NOW THEREFORE, in consideration of the mutual covenants contained herein, it is hereby understood and agreed: Section 1. Consideration. The Parties hereby agree that the consideration and obligations recited and provided for under this Agreement constitute substantial benefits to both parties and thus adequate consideration for this Agreement. Section 2. Rules of Legal Construction. For all purposes of the Agreement, unless otherwise expressly provided: (a) A defined term has the meaning assigned to it; (b) Words in the singular include the plural, and words in 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 hereto agree that this Agreement shall not be more strictly construed against either the City or the Developer, as all parties are drafters of this Agreement; and (f) The recitals are true and correct and are incorporated into and made a part of this Agreement. The attached exhibits shall be deemed adopted and incorporated into the Agreement; provided however, that this Agreement shall be deemed to control in the event of a conflict between the attachments and this Agreement. Section 3. Definitions. Capitalized terms which are not specifically defined herein shall have the meaning given in Miami 21. "Agreement" means this Development Agreement between the City and the Developer. #550255.doc Development Agreement Draft 10/8/15 "City" means the City of Miami, a municipal corporation of the State of Florida, and all departments, boards, committees, agencies and instrumentalities subject to the jurisdiction thereof. "Comprehensive Plan" means the comprehensive plan known as the Miami Comprehensive Neighborhood Plan, ("MCNP") adopted by the City pursuant to Chapter 163, Florida Statutes (2014), meeting the requirements of Section 163.3177, Florida Statutes (2014); Section 163.3178, Florida Statutes (2014) and Section 163.3221(2), Florida Statutes (2014), which are in effect as of the Effective Date of the Agreement. "County" means Miami -Dade County, a political subdivision of the State of Florida. "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 the dividing of land into three (3) or more parcels and such other activities described in Section 163.3221(4), Florida Statutes (2014). "Development permit" includes any building permit, zoning permit, subdivision approval, rezoning, certification, special exception, variance, or any other official action of local government having the effect of permitting the development of land. "Effective Date" is the date of recordation of the executed, original version of this Agreement. "Existing Zoning" is (a) Miami 21 Code, effective May 2010, as amended, specifically including the Miami River SAP, and (b) the provisions of the Charter and City Code of Miami ("Code") which regulate development, specifically including Chapters 10, 13, 22, 23, 36, 54, 55 and 62 of the Code as amended through the Effective Date, which together comprise the effective land development regulations governing development of the Property as of the Effective Date. "Land" means the earth, water, and air, above, below, or on the surface and includes any improvements or structures customarily regarded as land. "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. "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. #550255.doc Development Agreement Draft 10/8/15 "Developer Parties" and "Developer" mean the property owner(s) who are signatories to this Agreement. Section 4. Purposes. The purposes of this Agreement are for the City to authorize the Developer to redevelop the SAP Application Area pursuant to the Miami River SAP, to document certain improvements by the Developer to the City's adjacent park and public areas and the Developer's utilization of such adjacent park and public areas to benefit the public, for the City to authorize the Developer to access and to utilize certain portions of the City -owned Property for the riverwalk of the Development, and to document the related approval of access by the State to the State-owned Submerged Lands regarding the Riverwalk for the Development. This Agreement will establish, as of the Effective Date, the land development regulations which will govern the development of the Property, thereby providing the Developer with additional certainty during the development process. This Agreement satisfies the requirements of Section 3.9.1.£, Miami 21. Section 5. Intent. The Developer and the City intend for this Agreement to be construed and implemented so as to effectuate the purpose of the Miami River SAP Regulating Plan and Design Guidelines, this Development Agreement, the Comprehensive Plan, Miami 21, the City Charter, the Code, and the Florida Local Government Development Agreement Act, Sections 163.3220 - 163.3243, Florida Statutes (2014). Section 6. Legal Description of Land, Names of Legal Owners, Applicability. This Agreement only applies to (a) the Property identified and legally described in Exhibit "A;"and (b) the City's park and public areas to be improved and utilized by the Project to benefit the public, and (c) the limited access and use for the riverwalk of the Project of (i) the City - owned Property Lands identified in Exhibit "D"; and the respective legal and equitable owners are the City and the State. Section 7. 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 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, Florida Statutes (2014). 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 Developer Parties, their successors, assigns, heirs, legal representatives, and personal representatives. If the Property is submitted to condominium ownership pursuant to the Florida Condominium Act, Chapter 718, Florida Statutes (2014), 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. Section 8. Site Plan. The Property will be developed and used substantially in compliance with a compilation of plans, including, specifically, architectural plans entitled "Miami River," as prepared by Kobi Karp Architecture and Interior Design, Inc., and the landscape plans as prepared by Kimley Horn and Associates, Inc. and Raymond Jungles Landscape Architecture. All the foregoing plans are collectively referred to in this Agreement as the "Project" and are described in detail by plans on file with the City Clerk and are deemed to #550255.doc Development Agreement Draft 10/8/15 be incorporated by reference. "Substantially in compliance," for purposes of this Agreement, shall be determined by the City Planning and Zoning Director, pursuant to Section 7.1.3.5 of Miami 21. Section 9. Zoning, Permitted Development Uses and Building Intensities. The City has designated the SAP Application Areas "Miami River SAP" on the official Zoning Atlas of the City, pursuant to the applicable procedures in Miami 21. The Property is zoned T6 -36B-0 and D3 pursuant to Miami 21 and located within the Miami River Residential Density Increase Area permitting up to 400 units per acre. As part of the SAP process, the underlying land use and zoning designation will not be changed, although minor modifications to the T6 -36B-0 and D3 regulations are incorporated into the Miami River Regulating Plan and Design Guidelines. In accordance with the underlying land use and zoning regulations, there can be no residential density on the portions of the Property designated CS or D3. In approving the Miami River SAP, the City has determined that the uses, intensities, and densities of development permitted thereunder are consistent with the Comprehensive Plan and the Zoning. Signage and deviations to the regulations in the Code are articulated further in the Regulating Plan; signage shall be approved in accordance with the Regulating Plan and Article 10 of Miami 21. Section 10. Future Development. Future development within the SAP Application Area shall proceed pursuant to the Miami River SAP Regulating Plan and Design Guidelines. The criteria to be used in determining whether future development shall be approved is: (a) consistency with the Comprehensive Plan, (b) this Agreement, (c) and the Miami River SAP. The Comprehensive Plan, this Agreement, and the Miami River SAP shall govern development of the SAP Application Area for the duration of the Agreement. Any modifications to the Project plans or this Agreement shall be approved in accordance with the Miami River SAP Regulating Plan and Design Guidelines. The City's laws and policies adopted after the Effective Date may be applied to the SAP Application Area only if the determinations required by Section 163.3233(2), Florida Statutes (2014), have been made after thirty (30) days written notice to the Developer and at a public hearing. Pursuant to Section 163.3245(3), Florida Statutes (2014), this prohibition on down zoning supplements, rather than supplants, any rights that may vest to the Developer under Florida or Federal laws. As a result, the Developer may challenge any subsequently adopted changes to land development regulations based on (a) common law principles including, but not limited to, equitable estoppel and vested rights, or (b) statutory rights which may accrue by virtue of Chapter 70, Florida Statutes (2014). Section 11. Public Benefits. The Project consists of five (5) phases of development on the Property. Four (4) of the phases will utilize the City's Public Benefit Program for additional height as permitted under Miami 21 ("Benefit Height"). Phases 1 and 3, will contain approximately three hundred twelve thousand four hundred (312,400) square feet of Benefit Height each; Phase 4 will contain approximately two hundred forty-two thousand, four hundred square feet of Benefit Height (242,400); and Phase 5 will contain approximately three hundred forty thousand eight hundred (340,800) square feet of Benefit Height. The fee per square foot of Benefit Height is seventeen dollars and eighty two cents ($17.82). Accordingly, the total estimated Public Benefits contribution to the City will be approximately twenty one million five hundred twenty six thousand five hundred and sixty dollars ($21,526,560). The exact amount of #550255.doc Development Agreement Draft 10/8/15 the Public Benefits contribution shall be calculated prior to the issuance of the first vertical building permit for each of the Phases 1, 3, 4 and 5 and shall be due concurrent with the construction of each respective phase. Rather than tendering direct payment to the City, the Developer shall design, permit and construct certain public improvements within the Miami River SAP area and its surroundings amounting to the required Public Benefits contribution pursuant to the Project plans, the traffic analysis prepared for the project by Kimley Horn & Associates, dated August 15, 2014, and such improvements authorized by the City administration according to the SAP's Public Benefit Program and Phasing Schedule attached hereto as Exhibit "G." The Project plans are conceptual in nature and do not constitute complete architectural and engineering drawings; further development, pursuant to the conceptual plans, is necessary. In the event that there are any surplus funds associated with the line items listed in the Public Benefit Program and Phasing Schedule, said surplus(es), up to the required Public Benefit amounts, shall be allocated to the Art in Public Places line item, as shown in Exhibit "G". The City shall confirm that funds equivalent to the calculated Public Benefits contribution required for each phase have been or have been caused to be made on the project(s) listed in the SAP's Public Benefit Program and Phasing Schedule, and that such project(s) are substantially complete prior to the City's issuance of the first Certificate of Occupancy for the phase. Notwithstanding that Phase 2 of the Project is not included in the SAP's Public Benefit Bonus Program, prior to the issuance of the temporary Certificate of Occupancy for Phase 1, the Developer shall record a Notice of Commencement and commence construction of a public riverwalk on Phase 2 of the Property. The Director of Planning and Zoning has the authority to shift projects and funds between phases or as approved by the respective permitting agencies so long as funds equivalent to the calculated Public Benefits contribution prorated for each phase have been made prior to the Certificate of Occupancy or bonded and approved by the Department of Public Works. Following ten (10) years from the Effective Date, in the event that the Project and/or Public Benefits Program have not been completed, the Director of Planning and Zoning has the authority to abandon the Public Benefits Program described in Exhibit "G" and require the Developer to tender direct Public Benefit contribution payments to the City. (a) Working Waterfront. The portion of the Property currently zoned D3, and designated as Industrial on the City's Future Land Use Atlas, shall maintain recreational and commercial working waterfront uses, including office, commercial, restaurants and lodging. Therefore, the Developer: (a) shall not object or otherwise attempt to impede any legally permitted working waterfront 24-hour operations; (b) shall provide all future tenants and prospective owners of the Property notice of the existing working waterfront 24-hour operations and will include a provision to agree not to object to legally permitted working waterfront 24-hour operations in each lease; (c) acknowledges that it is solely the Developer's responsibility to design its structures to accommodate legally permitted working waterfront 24-hour operations; and (d) will not pursue any claims for liability, loss or damage, whether through litigation or otherwise, against permittees engaging in working waterfront 24-hour operations, related to damage to Owner's structures, noise, smoke, fumes, bridge closures, and/or other quality of life issues that might result from legally permitted working waterfront 24- hour operations. A Declaration of Restrictions satisfying Policy PA -3.1.9 of the Comprehensive Plan for the Property is attached as Exhibit "H". #550255.doc Development Agreement Draft 10/8/15 (b) Public Riverwalk. The Developer, at its sole cost and expense, agrees to develop the public riverwalk substantially in compliance with the Miami River Greenway Action Plan, Miami River Corridor Urban Infill Plan, Miami 21 and the Project plans, between SW 2nd Avenue and along the City -owned Property at the ends of the City's rights-of-way abutting the State-owned submerged lands adjacent to SW 5th Street, and the western boundary of Jose Marti Park, SW 2nd Street (the "Riverwalk"). The Riverwalk on Jose Marti Park shall be constructed, open to the public and maintained by the City prior to the issuance of the first Certificate of Occupancy for Phase 1. The Riverwalk on the Property will be constructed, open to the public and maintained by the Developer prior to the issuance of the first Certificate of Occupancy for Phase 2. (c) Job Creation and Employment Opportunities. The Developer shall consult and coordinate with the City's CareerSource South Florida center located at the Lindsey Hopkins Technical Center at 750 NW 20th Street, 4th Floor, Miami, Florida 33127; the Youth Co -Op, Inc. located at 5040 NW 7th Street, Suite 500, Miami, Florida 33126; and state economic development entities regarding job training and job placement services to City residents seeking employment opportunities with potential employers which will locate or establish businesses within the Project. The Developer agrees to use diligent, good faith efforts to achieve or to cause its general contractor(s) and subcontractors (collectively, the "Contractor") to use diligent, good faith efforts to achieve, as applicable, the following aspirational goals: (a) The Contractor shall adhere to the following hierarchy with respect to hiring objectives and practices within the Miami River SAP area: (1) Residents of the City who live within one (1) of the three (3) area zip codes: 33130, 33128 and 33135; (2) Residents of the City who live within one (1) of the five (5) zip codes with the highest poverty rate ("City Targeted Zip Codes"); (3) If no residents as described within Section 14(a)(1) or (2) are qualified or can be qualified within a reasonable amount of time, City residents who reside outside the City Targeted Zip Codes; (4) If no residents as described within Sections 14(a)(1),(2) or (3) are qualified or can be qualified within a reasonable amount of time, County residents who live within one (1) of the five (5) zip codes with the highest poverty rate in the County ("County Targeted Zip Codes"); and (5) If no residents as described within Sections 14(a)(1)-(4) are qualified or can be qualified within a reasonable amount of time, residents in the County who reside outside of the County Targeted Zip Codes. #550255.doc Development Agreement Draft 10/8/15 The Parties agree that individuals will be employed based on the hierarchy established in Section 14(a). For purposes of clarity, the intent of Section 14(a) is to encourage the Developer and the Contractor to hire as many qualified persons who reside in the City to work on the Project. (b) The Contractor shall electronically post job opportunities in established job outreach websites and organizations, including, without limitation, Youth Co -Op, Inc., South Florida Workforce, Florida Department of Economic Opportunity Career Source of South Florida located in Miami, their successors or assigns, and similar programs in order to attract as many eligible minority applicants for such jobs as possible. (c) In connection with the work performed by the Developer, the Developer shall cause the Contractor to pay a minimum hourly wage rate of twelve dollars and eighty three cents ($12.83) if health benefits are not provided to employees and eleven dollars and fifty eight cents ($11.58) if health benefits are provided to employees. Commencing January 1st, 2018 and for the duration of the Project ("CPI Escalation Year"), the foregoing hourly rates shall be increased on January 1st of the applicable calendar year by an amount equal to the percentage increase during the calendar year immediately prior to the CPI Escalation Year in the consumer price index ("Index"), which is the monthly index published by the Bureau of Labor Statistics of the United States Department of Labor as the Consumer Price Index for All Items, Miami -Ft. Lauderdale, Florida, Base Year 1982- 84=100. The CPI adjustment to the minimum hourly wage rates shall hereinafter be referred to as the "CPI Escalation". The CPI Escalation of the minimum hourly wage rates for the CPI Escalation Year shall be equal to the minimum hourly wage rates in effect for the calendar year immediately preceding the CPI Escalation Year multiplied by the CPI Percentage (as defined below). The "CPI Percentage" shall equal the fraction (i) whose numerator equals the monthly Index published immediately prior to the CPI Escalation Year (or the nearest reported previous month) and (ii) whose denominator is the same monthly Index published immediately prior to the calendar year that preceded the CPI Escalation Year (or the nearest reported previous month). If the Index is discontinued with no successor Index, the City shall select a commercially reasonable comparable index. The CPI adjustment set forth herein shall not result in a reduction of the respective minimum hourly wage rates. (d) The Developer shall require the Contractor to include the same minimum hourly wage rates in any contracts entered into by the Contractor with its subcontractors for the Project who will stipulate and agree that they will pay the same minimum hourly wage rates, subject to adjustment, as set forth in this section. (e) Local Workforce Participation during Construction. At least twenty-five percent (25%) of those employed by the general contractor or #550255.doc Development Agreement Draft 10/8/15 subcontractor(s) for construction work shall be employed utilizing the following priorities: first, residents of the following three (3) area zip codes: 33130, 33128 and 33135; second, residents of the five (5) highest poverty rate index zip codes in the City; third, City residents in general; fourth, County residents who live in the five (5) highest poverty rate index zip codes in the County; and fifth, residents in the County in general. Residents who live in qualifying areas must receive preference for hiring in the Project. (f) Job Opportunity Advertisement. The Developer must provide ten (10) full- page weekly advertisements in the Diario de las Americas newspaper to inform residents of job opportunities and job fairs prior to construction commencement. This shall be in addition to advertisements done through other job outreach websites, organizations, and efforts. (g) Community Business Enterprise ("CBE"), Community Small Business Enterprise ("CSBE"), and Small Business Enterprise ("SBE"). (1) Seven and one half percent (7.5%) of the professional services agreements for soft costs including, but not limited to, design, engineering, survey, inspection, testing, and legal, shall be awarded to firms certified by the County as CBE, CSBE, and SBE firms at the time the contract is signed. (2) The Developer shall award ten percent (10%) of the contractual agreements for construction and construction -related materials, supplies and fixtures to firms certified by the County as CBE, CSBE, and SBE firms at the time the contract is signed. (h) Job Creation Monitoring Contract. Within sixty (60) days prior to issuance of a Permit for vertical improvements, the Developer will designate a firm who shall be CBE/CSBE/SBE certified whom will be designated to monitor the Local Workforce Participation, Job Opportunity Advertisement, and CBE/CSBE/SBE requirements. (i) The City and the Developer understand and agree that any uses or improvements by the Developer of public areas previously financed by the City through tax-exempt bonds at Jose Marti Park areas and/or City -owned streets, sidewalks, and rights of way areas shall require review by the City Attorney and the City's Bond Counsel regarding necessary ongoing compliance with U.S. Department of the Treasury Internal Revenue Service rules and regulations. Section 12. Construction of encroachments within the Public Right -of -Way. The City finds that the encroachments proposed by the Developer do not unduly restrict the use of the public right-of-way and are a necessary, essential element in the construction of the pedestrian overpasses above the same rights-of-way. The adoption of this Agreement shall serve to satisfy #550255.doc Development Agreement Draft 10/8/15 the requirements set forth in Section 55-14(b) of the City Code. The City hereby agrees to expeditiously sign off on all permits as owner of the City -owned Property that are the public rights-of-way and Jose Marti Park, including but not limited to Public Works permits, bulkhead permits, and State permits with respect to submerged lands as may be required to effectuate the SAP and Project plans. The Developer represents to the City that it has, or will obtain, all necessary authorizations from the State regarding the State-owned submerged lands. Notwithstanding the requirements of Section 55-14(c) of the City Code, the City agrees to waive any and all claims to payment of a user fee in connection with the construction of the aforementioned encroachments within the public rights-of-way. Further, this Agreement shall satisfy the requirements of Section 55-14(d) of the City Code. In consideration for authorizing the construction of the aforementioned encroachments, the Developer further covenants to: (a) Maintain the above -grade pedestrian overpasses in accordance with the Florida Building Code, City Charter and Code. (b) (b) Provide an insurance policy, in an amount determined by the City's risk manager, naming the City and the State, regarding the State-owned submerged lands, as additional insureds for public liability and property damage. The insurance shall remain in effect for as long as the encroachment(s) exist above the City -owned Property, including the right-of-way(s) and the State-owned Submerged Lands. Should the Developer fail to continuously provide the insurance coverage, the City shall have the right to secure similar insurance policy in its name and place a special assessment lien against the owner's abutting private property for the total cost of the premium. The Developer acknowledges and agrees that it will comply with all insurance coverages required by the State regarding the State-owned Submerged Lands. (c) The Developer shall hold harmless and indemnify the City, the State, as applicable, and their respective officials and employees from any claims for damage or loss to property and injury to persons of any nature whatsoever arising out of the use, construction, and development of the Miami River SAP, including without limitation maintenance or removal of the pedestrian overpasses and from and against any claims which may arise out of the granting of permission for the encroachment or any activity performed under the terms of this Agreement. Section 13. Signage. The Project will need to comply with all applicable Federal, State, County and City signage rules, laws, orders, regulations, statutes, or ordinances. Permitted signage will accomplish the following goals: (i) moving pedestrians and vehicle traffic throughout the Property safely and efficiently; (ii) promoting safe and efficient pedestrian traffic within the property; and (iii) properly identifying the Property. The Signage Program will include, but is not limited to, the following sign types: (i) directional signage; (ii) ground signage; (iii) wall signage; (iv) monument signage; and (v) tower signage, some or all of which may incorporate LCD, LED, or similar electronic technology if approved and legally authorized. The Signage Program shall apply to signage visible from public rights-of-way. The Signage Program shall not apply to signage internal to the Project or not otherwise visible from the public right-of-way. Signage shall be approved by Warrant as described in Article 7 of Miami #550255.doc Development Agreement Draft 10/8/15 21. Section 14. Parking. The Developer intends to establish a uniform valet system to service the Project. Notwithstanding the limitations set forth in Sections 35-305 of the Code, a maximum of three (3) valet permits may be issued for the operation of a valet parking ramp on the same side of the block where the permit applicant is the operator of the uniform valet system. Robotic parking within enclosed parking structures shall be permitted. Section 15. Seawall. The Developer shall be responsible for any repairs to the seawall in compliance with the standards set forth by the Army Corps of Engineers and the City Code. The Developer shall increase the upland grade elevations to no less than four and one half feet 4.5' NAVD along the Riverwalk within the Property and six feet 6.0' NAVD adjacent to any mixed use parcel containing residential uses as a condition to development so as to address the pertinent City and County goals, objectives and policies related to Coastal High Hazard Areas. The City hereby agrees to serve as co -applicant and/or applicant, as required, and expeditiously sign any permit applications required to effectuate the repair and reconstruction of the seawall, bulkhead and site grade elevation. The Developer hereby agrees to obtain, as necessary, all applicable permissions or approvals from the State regarding any repairs and construction involving the State-owned submerged lands. In addition, the Developer will construct the bulkhead elevation of up to six and one half feet (6.5') where five and one half feet (5.5') is typically required, pursuant to the variance granted on July 2, 2015 subject to the conditions that the bulkhead transition from the end of the proposed Riverwalk to the existing walkway at the end of SW 3 Avenue in compliance with ADA slope regulations (Section 4.8.2, CFR) and that the proposed bulkhead cap shall be extended through the transition area matching the slope of the Riverwalk/walkway transition and providing a six (6) inch vertical reveal. Section 16. Retail Specialty Center Designation. Pursuant to Chapter 4 of the Code, the Miami River SAP is designated as a "Retail Specialty Center". Section 17. Alcoholic Beverage Sales. The Property is located within the D3 and T6 -36B-0 zoning transects as designated under Miami 21. Notwithstanding the requirements of Section 4-3.2 of the Code, Planning and Zoning Advisory Board, and City Commission approval shall not be required for bars (including taverns, pubs, and lounges), nightclubs, and supper clubs as principal uses proposed to be located within the Miami River SAP Project. Said establishments shall be authorized pursuant to the issuance of a Warrant (currently requires Exception). The Planning & Zoning Director shall consider the criteria set forth in Section 4-3.2.1 of the City Code when evaluating such Warrant applications. There shall be a maximum of ten (10) individual alcohol beverage establishments permitted within the Miami River SAP area. Section 18. Environmental. The City finds that the Project will confer a significant net improvement upon the publicly accessible tree canopy in the area. The City and the Developer agree that the Developer will comply with the intent and requirements of Chapter 17 of the City Code by performing tree replacement within the SAP Area where possible. Where replacement within the SAP Area is not possible, the Developer shall perform tree replacement within Jose Marti Park. Where replacement within Jose Marti Park is not possible, the #550255.doc Development Agreement Draft 10/8/15 Developer shall perform the required tree replacement within one (1) mile of the SAP or within any other City park, subject to approval by the City. The City further agrees to facilitate the permitting and planting of replacement trees on all publicly owned property within the area and within City parks. Section 19. Archaeological. Due to the Project's classification of High Probability in an Archaeological Conservation Area, the Developer shall obtain a "Certificate to Dig" prior to any ground disturbing activities, pursuant to Chapter 23 of the City Code. Section 20. Public Facilities. As of the Effective Date, the 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 Developer to provide Public Facilities to address any deficiencies in required levels of service occasioned by future development within the SAP Application Area or as a result of the development of the Project, the Developer shall provide such Public Facilities consistent with the timing requirements of Sections 163.3180, Florida Statutes (2014), or as otherwise required by Chapter 13 of the City Code, as amended from time to time, if applicable. The Developer shall be bound by the City impact fees and assessments in existence as of the Effective Date of this Agreement. Section 21. Release of Existing Ordinance 11000 Covenants. Upon approval of this Development Agreement by the City Commission, the Planning Director shall release two (2) Declarations of Restrictive Covenants recorded in the public records of Miami -Dade County related to prior development approvals for portions of the SAP Application Area. The first Declaration of Restrictive Covenants is recorded at Official Record Book 24194 at Page 1806 of the Public Records of Miami -Dade County, and was proffered along with a rezoning application for a portion of the project area, corresponding with the parcels in the middle section of the Project area. The second Declaration of Restrictive Covenants is recorded at Official Record Book 24997 at Page 2543 of the Public Records of Miami -Dade County, and was proffered along with a rezoning application for a portion of the southern section of the Project area. Section 22. Compliance with Fire/Life Safety Laws. The 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 Developer will install and construct all required fire safety equipment and water lines with flow sufficient to contain all possible fire occurrences. Section 23. Local Development Permits. The Project 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 make a good faith effort to take all reasonable steps to cooperate with and facilitate all such approvals, including acting as an applicant. Such approvals include, without limitation, the following approvals and permits and any successor or analogous approvals and permits: (a) Subdivision plat and/or waiver of plat approvals; (b) Covenant or Unity of Title acceptance and the release of the two (2) existing #550255.doc Development Agreement Draft 10/8/15 Declarations of Restrictions; (c) Building, Public Works and Bulkhead permits; (d) Certificates of use and/or occupancy; (e) Stormwater Permits; and (f) Any other official action of the City, County, or any other government agency having the effect of permitting development of the Property. In the event that the City substantially modifies its land development regulations regarding site plan approval procedures, authority to approve any site plan for a project in the SAP Application Area shall be vested solely in the City Manager, with the recommendation of the Planning and Zoning Director. Any such site plan shall be approved if it meets the requirements and criteria of the Zoning, the Comprehensive Plan and the terms of this Agreement. Section 24. Consistency with Comprehensive Plan. The City finds that development of the Miami River SAP is in conformity with the Existing Zoning and is consistent with the Comprehensive Plan. In the event that the Existing Zoning or the Comprehensive Plan requires the Developer to provide additional Public Facilities to accommodate the Project, the Development will provide such Public Facilities consistent with the timing requirements of Section 163.3180, Florida Statutes (2014). The 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. Section 25. Necessity of Complying 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 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 (2014), if state or federal laws are enacted after the execution of this development agreement which are applicable to and preclude the parties' compliance with the terms of this development agreement, this Agreement shall be modified or revoked as is necessary to comply with the relevant state or federal laws. Section 26. 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 Developer in achieving its development and construction milestones. The City will accommodate requests from the Developer's general contractor 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 #550255.doc Development Agreement Draft 10/8/15 Office who will have a primary (though not exclusive) duty to serve as the City's point of contact and liaison with the 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 the foregoing, the City shall not be obligated to issue development permits to the extent the Developer does not comply with the applicable requirements of the Zoning, the Comprehensive Plan, this Agreement and applicable building codes. Section 27. Reservation of Development Rights. (a) For the term of this Agreement, the City hereby agrees that it shall permit the development of the SAP Application Area in accordance with the Comprehensive Plan, Miami 21, the Miami River SAP Regulating Plan, and this Agreement. (b) Nothing herein shall prohibit an increase in the density or intensity of development permitted in the SAP Application Area in a manner consistent with (a) Miami 21 and the Miami River SAP, and/or the Comprehensive Plan, (b) any zoning change subsequently requested or initiated by the Developer in accordance with applicable provisions of law or (c) any zoning change subsequently enacted by the City. (c) The expiration or termination of this Agreement shall not be considered a waiver of, or limitation upon, the rights, including, but not limited to, any claims of vested rights or equitable estoppel, obtained or held by the Developer or its successors or assigns to continue development of the Property in conformity with Existing Zoning and all active prior and subsequent development permits or development orders granted by the City. Section 28. Annual Review. (a) The City may 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 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 Developer during an annual review shall be limited to that necessary to determine the extent to which the 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 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 Developer and after a public hearing. #550255.doc Development Agreement Draft 10/8/15 Section 29. Notice. All notices, demands and requests which may or are required to be given hereunder shall, except as otherwise expressly provided, be in writing and delivered by personal service or sent by United States Registered or Certified Mail, return receipt requested, postage prepaid, or by overnight express delivery, such as Federal Express, to the Parties at the addresses listed below. Any notice given pursuant to this Agreement shall be deemed given when received. Any actions required to be taken hereunder which fall on Saturday, Sunday, or United States legal holidays shall be deemed to be performed timely when taken on the succeeding day thereafter which shall not be a Saturday, Sunday or legal holiday. To the City: With a copy to: City Manager, City of Miami 3500 Pan American Drive Miami, FL 33133 City Attorney, City of Miami Miami Riverside Center 444 S.W. 2nd Ave., 91h Floor Miami, FL 33130 To the Developer: With a copy to: CG Miami River, LLC Attn: Ari Pearl 2915 Biscayne Boulevard, Ste 300 Miami, FL 33137 Bercow Radell & Fernandez, PLLC Attn: Melissa Tapanes Llahues, Esq. 200 S. Biscayne Boulevard, Ste 850 Miami, FL 33131 Any Party to this Agreement may change its notification address(es) by providing written notification to the remaining parties pursuant to the terms and conditions of this section. Section 30. 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. Section 31. Common Area Maintenance. The Developer will create prior to the #550255.doc Development Agreement Draft 10/8/15 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 instrument creating the association or other entity shall be subject to the reasonable approval of the City Attorney. Section 32. Modification. In accordance with the Project plans, the Project will be developed in five (5) Phases. This Agreement may be modified, amended or released as to Phase 1, or any portion thereof, by a written instrument executed by the, then, owner(s) of Phase 1 including joinders of all mortgagees, if any, provided that the same is also approved by the City, after public hearing. Any public hearing application related to Phase 1, or any portion thereof, shall only require the consent, acknowledgment and/or joinder of the then owner(s) of Phase 1. This Agreement may be modified, amended or released as to Phase 2, or any portion thereof, by a written instrument executed by the, then, owner(s) of Phase 2, including joinders of all mortgagees, if any, provided that the same is also approved by the City, after public hearing. Any public hearing application related to Phase 2, or any portion thereof, shall only require the consent, acknowledgment and/or joinder of the then owner(s) of Phase 2. This Agreement may be modified, amended or released as to Phase 3, or any portion thereof, by a written instrument executed by the, then, owner(s) of Phase 3, including joinders of all mortgagees, if any, provided that the same is also approved by the City, after public hearing. Any public hearing application related to Phase 3, or any portion thereof, shall only require the consent, acknowledgment and/or joinder of the then owner(s) of Phase 3. This Agreement may be modified, amended or released as to Phase 4, or any portion thereof, by a written instrument executed by the, then, owner(s) of Phase 4, including joinders of all mortgagees, if any, provided that the same is also approved by the City, after public hearing. Any public hearing application related to Phase 4, or any portion thereof, shall only require the consent, acknowledgment and/or joinder of the then owner(s) of Phase 4. This Agreement may be modified, amended or released as to Phase 5, or any portion thereof, by a written instrument executed by the, then, owner(s) of Phase 5, including joinders of all mortgagees, if any, provided that the same is also approved by the City, after public hearing. Any public hearing application related to Phase 5, or any portion thereof, shall only require the consent, acknowledgment and/or joinder of the then owner(s) of Phase 5. In the event that there is a recorded homeowners or condominium association covering any portion of Phases 1, 2, 3, 4, 5, or any portion thereof, said association may (in lieu of the signature or consent of the individual members 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 evidenced 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. Section 33. Enforcement. The City, its successors or assigns, and the 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 #550255.doc Development Agreement Draft 10/8/15 covenants, either to restrain violation or to recover damages or both. Section 34. Authorization to Withhold Permits and Inspections. In the event the Developer is obligated to make payments or improvements under the terms of this Agreement or to take or refrain from taking any other action under this Agreement, and such obligations are not performed as required, in addition to any other remedies available, the City is hereby authorized to withhold any further permits, and refuse any inspections or grant any approvals, for the specific Phase of development the outstanding obligations relate to until such time as this Agreement is complied with. Section 35. Emergency Management and Mitigation Plan. Prior to the issuance of a Certificate of Occupancy, Temporary Certificate of Occupancy ("TCO"), or the equivalent for the first new single -use building in the SAP Application Area, the 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 SAP Application Area. The Developer, or its 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. Section 36. Exclusive 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 City and the Developer shall each have the right to specific performance of this Agreement in court. Each party shall bear its own attorney's fees. Each party waives any defense, whether asserted by motion or pleading, that the aforementioned courts are an improper or inconvenient venue. Moreover, the parties consent to the personal jurisdiction of the aforementioned courts and irrevocably waive any objections to said jurisdiction. The Parties irrevocably waive any rights to a jury trial. Section 37. Voluntary Compliance. The Parties agree that in the event all or any part 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. Section 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. Section 39. Events of Default. #550255.doc Development Agreement Draft 10/8/15 (a) The Developer shall be in default under this Agreement if any of the following events occur and continue beyond the applicable grace period: the Developer fails to perform or breaches any term, covenant, or condition of this Agreement which is not cured within thirty (30) days after receipt of written notice from the City specifying the nature of such breach; provided, however, that if such breach cannot reasonably be cured within thirty (30) days, then the 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 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. Section 40. Remedies Upon Default. (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 Developer and the City 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. Section 41. Obligations Surviving Termination Hereof. 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 indicates either that it survives the termination or expiration here of or is or may be applicable or effective beyond the expiration or permitted early termination hereof. #550255.doc Development Agreement Draft 10/8/15 Section 42. No Oral Chante or Termination. This Agreement and the exhibits and appendices appended hereto and incorporated herein by reference, if any, constitute the entire Agreement between the Parties with respect to the subject matter hereof. This Agreement supersedes any prior agreements or understandings between the Parties with respect to the subject matter hereof, and no change, modification, or discharge hereof in whole or in part shall be effective unless such change, modification or discharge is in writing and signed by the party against whom enforcement of the change, modification or discharge is sought. This Agreement cannot be changed or terminated orally. Section 43. Lack of Auncy Relationship. Nothing contained herein shall be construed as establishing an agency relationship between the City and the Developer and neither Developer nor its employees, agents, contractors, subsidiaries, divisions, affiliates or guests shall be deemed agents, instrumentalities, employees, or contractors of the City for any purpose hereunder, and the City, its officials, contractors, agents, and employees shall not be deemed contractors, agents, or employees of the Developer or its subsidiaries, divisions or affiliates. Section 44. Succes sor(s),As signs, and Designees. The covenants and obligations set forth in this Agreement shall extend to the Developer, its 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. Section 45. Third Party Defense. The City and the Developer 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 City and the Developer shall promptly give the other written notice of any such action, including those that are pending or threatened, and all responses, filings, and pleadings with respect thereto. Section 46. No Third -Party Beneficiary. No persons or entities other than the Developer and the City, permitted successors and assigns, shall have any rights whatsoever under this Agreement. Section 47. 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. Section 48. Representations; Representatives. 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. #550255.doc Development Agreement Draft 10/8/15 Section 49. No Exclusive Remedies. No remedy or election given by any provision in the Agreement shall be deemed exclusive unless expressly so indicated. Wherever possible, the remedies granted hereunder upon a default of the other party shall be cumulative and in addition to all other remedies of law or equity arising from such event of default, except where otherwise expressly provided. Section 50. No Conflict of Interest. The Developer agrees to comply with Section 2- 612 of the City Code as of the Effective Date, with respect to conflicts of interest. Section 51. Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall constitute an original but all of which, when taken together, shall constitute one and the same agreement. NOW, WHEREOF, the City and the Developer have caused this Agreement to be duly executed. [Execution Pages for the City and the Developer Follow] #550255.doc Development Agreement Draft 1018115 IN WITNESS WHEREOF, these presents have been executed this day of , 2015. CG Miami River, a Delaware limited Witnesses liability corporation Print Name Print Name STATE OF )SS COUNTY OF By: Name: Title: The foregoing instrument was acknowledged before me this day of , 2015 by of CG Miami River, LLC who is Personally known to me or ( ) produced a valid driver's license as identification. Notary Public: Sign Name: Print Name: My Commission Expires: #550255.doc [NOTARIAL SEAL] ATTEST: Toydd Hannon, City Clerk Approved as to Form and Correctness: By: Victoria Mendez, CityAttorney_ STATE OF )SS COUNTY OF Development Agreement Draft 10/8/15 City of Miami, a Florida municipal corporation Daniel J. Alfonso, City Manager Approved as to Insurance Requirements: Anne -Marie Sharpe, Risk Management Director The foregoing instrument was acknowledged before me this day of , 2015 by of the City Miami, Florida, who is the the City and who is personally known to me or ( ) produced a valid driver's license as identification. Notary Public: Sign Name: Print Name: My Commission Expires: [NOTARIALSEAL] #550255.doc if Development Agreement Draft X10/8/15 DEVELOPMENT AGREEMENT BETWEEN CITY OF NHANH, FLORIDA AND CG NHANH RIVER OWNER, LLC, REGARDING APPROVAL OF THE NHANH RIVER SPECIAL AREA PLAN AND RELATED DEVELOPMENT This is a Development Agreement ("Agreement") made this day of , 2015 between CG Miami River, LLC, a Delaware corporation, (the "Developer" :: and "Owner") and the City of Miami, Florida, a municipal corporation and a political subdivision of the State of Florida (the "City") (the Developer and the City are together referred to as the "Parties"). WITNESSETH WHEREAS, the Developer is the fee simple owner to approximately 6.2 acres ofd€ property in Miami -Dade County, Florida, shown and legally described in Exhibit "A", located between SW 7th Street on the south, the Miami River on the north, SW 2nd Avenue on the east, and SW 3rd Avenue on the west, within the City (the "Property"); and WHEREAS, the Property is designated Industrial/Port of Miami River Brand Restricted Commercial on the Future Land Use Map, within the Urban Central Business District ( "UCBD3" and the Little Havana Residential Density Increase Area according to the Miami Comprehensive Neighborhood Plan ("Comprehensive Plan"), shown in Exhibit "B"; and WHEREAS, the Property is impacted by the Coastal High Hazard Area along the Miami River; and WHEREAS, the Property is zoned D3 Waterfront Industrial erand T6 -36B-0 Urban Core, according to the Miami 21 Zoning Code ("Miami 21 "), shown in Exhibit "C"; and WHEREAS, the Property is currently underutilized in that it consists of vacant and underdeveloped lots; and WHEREAS, the Property is located in an Empowerment Zone for which the City envisions redevelopment through community-based partnerships to encourage economic revitalization and sustainable community development; and WHEREAS, the current status of the Property is inconsistent with the City's vision to develop a world class downtown, and wishes to encourage development of the Property; and WHEREAS, the City of "wand the Developer wish to redevelop the Property as a high density, mixed use, pedestrian oriented urban development providing much needed retail uses and amenities -for the urban center; and WHEREAS, a process exists within Miami 21 which allows parcels of more than nine (9) abutting acres to be master planned to allow greater integration of public improvements and infrastructure, and greater flexibility so as to result in higher or specialized quality building and streetscape design; and #550255.doc Development Agreement Draft X10/8/15 WHEREAS, the result of this master planning process is known as a "Special Area Plan" ("SAP"); and WHEREAS, the City of "pis the fee simple owner of approximately four (4) acres of propertcollectivelthe "City -owned Property" in Miami -Dade County, Florida, shown in Exhibit "D", adjacent to the DeN,e'e„er's pi:epei4y Property and located along the Miami River, within the City;, and said City -owned Property includes certain City park areas and rights-of- way, i htg sof- way, and abuts certain submerged lands owned by the State of Florida ("State") through the Board of Trustees of the Internal Improvement Fund ("State Submerged Lands") also shown in Exhibit "D;" and WHEREAS, on April 30, 2015, the Developer filed an application with the City for approval of the Miami River SAP with a total of approximately 10.2 acres of land shown in Exhibit "E" "," including certain portions of the City -owned Property and the abutting State Submerged Lands, shown in Exhibit D (collectively, "SAP Application AreaL):l Area"):in order to redevelop the Property as a mixed use development with residential and lodging units, retail, restaurants, working waterfront uses, office, and other amenities, including a public riverwalk which will cross the City -owned Property and the abutting State Submerged Lands (the "Miami River SAP" or the "Project"); and WHEREAS, the City serves as co -applicant for approval of the Miami River SAP; and WHEREAS, the PfejeetMiami River SAP's location on the Miami River will allow for use and enjoyment of the Miami River by its residents and patrons, and the general public as well; and WHEREAS, the Pt:ejeaMiami River SAP will create certain recurring fiscal benefits for the City of N4iawi2-RCj1Zs tax base as well as much needed temporary and permanent jobs; and WHEREAS, the City and the Developer wish for the development of the prejeetProject to proceed substantially in accordance with the "Miami River SAP Regulating Plan" and "Design Guidelines" attached as Exhibit -"F"; and WHEREAS, the City and the Developer wish for development of the Miami River SAP to proceed in a manner which is consistent with the Comprehensive Plan, Miami 21, the City Charter, the Miami River Greenway Action Plan, and the Miami River Corridor Urban Infill Plan; and WHEREAS, the lack of certainty in the approval of development can result in a waste of economic and land resources, discourage sound capital improvement planning and financing, escalate the cost of housing and development, and discourage commitment to comprehensive planning; and WHEREAS, as a condition to the approval of the Pr-oj e -Wiami River SAP, the Developer must enter into a Development Agreement pursuant to Section 3.9. Lf. of Miami 21; #550255.doc Development Agreement Draft X10/8/15 and WHEREAS, assurance to a developer that it may proceed in accordance with existing laws and policies, subject to the conditions of the Development Agreement, strengthens the public planning process, encourages sound capital improvement planning and financing, assists in assuring there are adequate capital facilities for the development, encourages private participation in comprehensive planning, and reduces the economic cost of development; and WHEREAS, the City Commission pursuant to Ordinance adopted on ,October 22, 2015 has authorized the City Manager to execute this Agreement upon the terms and conditions as set forth below, and the owner,4Ass :p e f ara Assignees 1Developer has been duly authorized to execute this Agreement upon the terms and conditions set forth below-; and NOW THEREFORE, in consideration of the mutual covenants contained herein, it is hereby understood and agreed: Section 1. Consideration. The Parties hereby agree that the consideration and obligations recited and provided for under this Agreement constitute substantial benefits to both parties and thus adequate consideration for this Agreement. Section 2. Rules of Legal Construction. For all purposes of the Agreement, unless otherwise expressly provided: (a) A defined term has the meaning assigned to it; (b) Words in the singular include the plural, and words in 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; II (e) The Parties hereto agree that this Agreement shall not be more strictly construed against either the City or the Developer, as all parties are drafters of this Agreement; and (f) The recitals are true and correct and are incorporated into and made a part of this Agreement. The attached exhibits shall be deemed adopted and incorporated into the Agreement; provided however, that this Agreement shall be deemed to control in the event of a conflict between the attachments and this Agreement. Section 3. Definitions. Capitalized terms which are not specifically defined herein shall have the meaning given in Miami 21. #550255.doc Development Agreement Draft X10/8/15 "Agreement" means this Development Agreement between the City the AssigRe€Developer. "City" means the City of Miami, a municipal corporation of the State of Florida, and all departments, boards, committees, agencies and instrumentalities subject to the jurisdiction thereof. "Comprehensive Plan" means the comprehensive plan known as the Miami Comprehensive Neighborhood Plan, (LMCNP4D adopted by the City pursuant to Chapter 163, Florida Statutes (2014), meeting the requirements of Section 163.3177, Florida Statutes (2014); Section 163.3178, Florida Statutes (2014) and Section 163.3221(2), Florida Statutes (2014), which are in effect as of the Effective Date of the Agreement. "County" means Miami -Dade County, a political subdivision of the State of Florida. "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 the dividing of land into three (33,) or more parcels and such other activities described in Section 163.3221(4), Florida Statutes (2014). "Development permit" includes any building permit, zoning permit, subdivision approval, rezoning, certification, special exception, variance, or any other official action of local government having the effect of permitting the development of land. "Effective Date" is the date of recordation of the executed, original version of this Agreement. "Existing Zoning" is (a) Miami 21 Code, effective May 2010, as amended, specifically including the Miami River SAP, and (b) the provisions of the Charter and City Code of Miami ("Code") which regulate development, specifically including Chapters 10, 13, 22, 23, 36, 54, 55 and 62 of the Code as amended through the Effective Date, which together comprise the effective land development regulations governing development of the Property as of the Effective Date. "Land" means the earth, water, and air, above, below, or on the surface and includes any improvements or structures customarily regarded as land. "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. "Public Facilities" means major capital improvements, including, but not limited to, transportation, sanitary sewers, solid waste, drainage, potable water, #550255.doc Development Agreement Draft X10/8/15 educational, parks and recreational, streets, parking and health systems and facilities. "Developer Parties" wand "Developer" mean the property e�Nflefsowner s who are signatories to this Agreement. Section 4. P*n+o*ePurposes. The ptrrpes-ep 1oses of this Agreement i-gare for the City to authorize the Developer to redevelop the SAP Application Area pursuant to the Miami River SAP-, to document certain improvements by the Developer to the Ci . 's adjacent park and public areas and the Developer's utilization of such adjacent park and public areas to benefit the public, for the City to authorize the Developer to access and to utilize certain portions of the City -owned Property for the riverwalk of the Development, and to document the related approval of access by the State to the State-owned Submerged Lands regarding the Riverwalk for the Development. This Agreement will establish, as of the Effective Date, the land development regulations which will govern the development of the Property, thereby providing the Developer with additional certainty during the development process. This Agreement satisfies the requirements of Section 3.9.1.£, Miami 21. Section 5. Intent. The Developer and the City intend for this Agreement to be eonstmeda onstrued and implemented so as to effectuate the purpose of the Miami River SAP Regulating Plan and Design Guidelines, this Development Agreement, the Comprehensive Plan, Miami 21, the City Charter, the Code, and the Florida Local Government Development Agreement Act, Sections 163.3220 - 163.3243, Florida Statutes (2014). Section 6. Legal Description of Land, Names of Legal Owners, Applicability. This Agreement only applies to the Miami RiN,ef: SAP Pi:opeftie-sELgRerty identified and legally described in Exhibit "A—.","and (b) the City's park and public areas to be improved and utilized by the Project to benefit the public, and (c) the limited access and use for the riverwalk of the Project of (i) the City -owned Property Lands identified in Exhibit "D", and the respective legal and equitable owners are the City and the State. Section 7. 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 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, Florida Statutes (2014). 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 Developer Parties, their successors, assigns, heirs, legal representatives, and personal representatives. If the Property is submitted to condominium ownership pursuant to the Florida Condominium Act, Chapter 718, Florida Statutes (2014), 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. Section 8. Site Plan. compliance with a compilation "Miami River"—,." as prepared by #550255.doc The Property will be developed and used substantially in of plans, including, specifically, architectural plans entitled Kobi Karo Architecture and Interior Design_ Inc._ and the Development Agreement Draft X10/8/15 landscape plans as prepared by Kimley Horn and Associates, Inc. and Raymond Jungles Landscape Architecture. All the foregoing plans are collectively referred to in this Agreement as the "Project" and are described in detail by plans on file with the City Clerk and are deemed to be incorporated by reference. "Substantially :,,,.,,milli neein compliance," for purposes of this Agreement, shall be determined by the City Planning and Zoning Director, pursuant to Section 7.1.1-545 of Miami 21. Section 9. Zoning, Permitted Development Uses and Building Intensities. The City has designated the SAP Application Areas "Miami River SAP" on the official Zoning Atlas of the City, pursuant to the applicable procedures in Miami 21. The Property is zoned T6 -36B-0 and D3 pursuant to Miami 21 and located within the Miami River Residential Density Increase Area permitting up to 400 units per acre. As part of the SAP process, the underlying land use and zoning designation will not be changed, although minor modifications to the T6 -36B-0 and D3 regulations are incorporated into the Miami River Regulating Plan and Design Guidelines. In accordance with the underlying land use and zoning regulations, there can be no residential density on the portions of the Property designated CS or D3. In approving the Miami River SAP, the City has determined that the uses, intensities, and densities of development permitted thereunder are consistent with the Comprehensive Plan and the Zoning. _Signage and deviations to the regulations in the Code are articulated further in the Regulating Plan,; signage shall be approved in accordance with the Regulating Plan and Article 10 of Miami 21. Section 10. Future Development. Future development within the SAP Application Area shall proceed pursuant to the Miami River SAP Regulating Plan and Design Guidelines. The criteria to be used in determining whether future development shall be approved is: (a) consistency with the Comprehensive Plan, (b) this Agreement, (c) and the Miami River SAP. The Comprehensive Plan, this Agreement, and the Miami River SAP shall govern development of the SAP Application Area for the duration of the Agreement. Any modifications to the Project plans or this Agreement shall be approved in accordance with the Miami River SAP Regulating Plan and Design Guidelines. The City's laws and policies adopted after the Effective Date may be applied to the SAP Application Area only if the determinations required by Section 163.3233(2), Florida Statutes (2014)1 have been made after thirty 30) days written notice to the Developer and at a public hearing._ Pursuant to Section 163.3245(3), Florida Statutes (2014), this prohibition on down zoning supplements, rather than supplants, any rights that may vest to the Developer under Florida or Federal 1-awlaws. As a result, the Developer may challenge any subsequently adopted changes to land development regulations based on (a) common law principles including, but not limited to, equitable estoppel and vested rights, or (b) statutory rights which may accrue by virtue of Chapter 70, Florida Statutes (2014). Section 11. Public Benefits. The Project consists of five (5) phases of development on the Property. Four (4) of the phases will utilize the City's Public Benefit Program for additional Heightheight as permitted under Miami 21 ("Benefit Height"). Phases 1 and 4 prepme3, will contain approximately three hundred thii4y elve thousand twe i,,,, dre o; 4y eight (339,298) four hundred (312,400) square feet of Benefit Height each; Phase 4 will contain approximately two hundred forty-two thousand, four hundred square feet of Benefit Height x(242,400); and Phase 5 will contain approximately twethree hundred forty two #550255.doc Development Agreement Draft X10/8/15 thousand and t hundred (242,400340,800) square feet of Benefit Height. The fee per square foot of Benefit Height is seventeen dollars and eighty two cents ($17.82). Accordingly, the total estimated Public Benefits contribution to the City will be approximately twenty one million five hundred twenty six thousand five hundred and sixty dollars ($21,526,560). The exact amount of the Public Benefits contribution shall be calculated prior to the issuance of the first vertical building permit for each of the Phases 1, 3, 4 and 5 and shall be due concurrent with the construction of each respective phase. Rather than tendering direct payment to the City -of Miami, the Developer shall design, permit and construct certain public improvements within the Miami River SAP area and its surroundings amounting to the required Public Benefits contribution pursuant to the Project plans, the traffic analysis prepared for the project by Kimley Horn & Associates, dated August 15, 2014, and such improvements authorized by the City administration according to the SAP's Public Benefit Program and Phasing Schedule attached hereto as Exhibit "G." _The Project plans are conceptual in nature and do not constitute complete architectural and engineering drawings; further development, pursuant to the conceptual plans, is necessary. In the event that there are any surplus funds associated with the line items listed in the Public Benefit Program and Phasing Schedule, said surplus(es), up to the required Public Benefit amounts, shall be allocated to the Art in Public Places- line item, as shown in Exhibit "G". The City shall confirm that funds equivalent to the calculated Public Benefits contribution required for each phase have been or have been caused to be made on the project(s) listed in the SAP's Public Benefit Program and Phasing Schedule, and that such project(s) are substantially complete prior to the City's issuance of the first Certificate of Occupancy for the phase. Notwithstanding that Phase 2 of the Project is not included in the SAP's Public Benefit Bonus Program, prior to the issuance of the ff-Aigmporary Certificate of Occupancy for Phase 1, the Developer shall record a Notice of Commencement and commence construction of a public riverwalk on Phase 2 of the Property. The Director of Planning and Zoning has the authority to shift projects and funds between phases or as approved by the respective permitting agencies so long as funds equivalent to the calculated Public Benefits contribution prorated for each phase hashave been made prior to the Certificate of Occupancy or bonded and approved by the Department of Public Works. Following ten (10) years from the Effective Date, in the event that the Project and/or Public Benefits Program have not been completed, the Director of Planning and Zoning has the authority to abandon the Public Befief t pi:ag amRgpefits Program described in Exhibit "G" and require the Developer to tender direct Public Benefit contribution payments to the City erg. (a) Working Waterfront. The portion of the Property currently zoned D3, and designated as Industrial on the City's Future Land Use Atlas, shall maintain recreational and commercial working waterfront uses, including office, commercial, restaurants and lodging. Therefore, the Developer: (a) shall not object or otherwise attempt to impede any legally permitted working waterfront 24-hour operations; (b) shall provide all future tenants and prospective owners of the Property notice of the existing working waterfront 24-hour operations and will include a provision to agree not to object to legally permitted working waterfront 24-hour operations in each lease; (c) acknowledges that it is solely the Developer's responsibility to design its structures to accommodate legally permitted working waterfront 24-hour operations; and (d) will not pursue any claims for liability, loss or damage, whether through litigation or otherwise, against permittees engaging in working waterfront 24-hour operations, related to #550255.doc Development Agreement Draft X10/8/15 damage to Owner's structures, noise, smoke, fumes, bridge closures, and/or other quality of life issues that might result from legally permitted working waterfront 24- hour operations. A Declaration of Restrictions satisfying Policy PA -3.1.9 of the Comprehensive Plan for the Property is attached as Exhibit "H". (b) Public Riverwalk. The Developer, at its sole cost and expense, agrees to develop the public riverwalk substantially in compliance with the Miami River Greenway Action Plan, Miami River Corridor Urban Infill Plan, Miami 21 and the Project plans, between SW 2nd Avenue and along the City -owned Property at the ends of the Cit..'s rigbis-of-way abutting the State-owned submerged lands adjacent to SW 5th Street, and the western boundary of Jose Marti Park, SW 2nd Street -(the "Riverwalk"). The Riverwalk on Jose Marti Park shall be constructed, open to the public and maintained by the City prior to the issuance of the first Certificate of Occupancy for Phase 1. The Riverwalk on the Property will be constructed, open to the public and maintained by the Developer prior to the issuance of the first Certificate of Occupancy for Phase 2. (c) Job Creation and Employment Opportunities. The Developer shall consult and coordinate with the City's CareerSource South Florida center located at the Lindsey Hopkins Technical Center at 750 NW 20th Street, 4th Floor, Miami, Florida 33127; the Youth Co -Op, Inc. located at 5040 NW 7th Street, Suite 500, Miami, Florida 33126; and state economic development entities regarding job training and job placement services to City residents seeking employment opportunities with potential employers which will locate or establish businesses within the Project. The Developer agrees to use diligent, good faith efforts to achieve or to cause its general contractor(s) and subcontractors (collectively, the "Contractor") to use diligent, good faith efforts to achieve, as applicable, the following aspirational goals: (a) The Contractor shall adhere to the following hierarchy with respect to hiring objectives and practices within the Miami River SAP area: (1) Residents of the City who live within one (1) of the three (3) area zip codes: 33130, 33128 and 33135; (2) Residents of the City who live within one (1) of the five (5) zip codes with the highest poverty rate ("City Targeted Zip Codes"); (3) If no residents as described within Section 14(a)(1) or (2) are qualified or can be qualified within a reasonable amount of time, City residents who reside outside the City Targeted Zip Codes; (4) If no residents as described within Sections 14(a)(1),(2) or (3) are qualified or can be qualified within a reasonable amount of time, County residents who live within one (1) of the five (5) zip codes with the highest poverty rate in the County ("County Targeted Zip Codes"); and #550255.doc Development Agreement Draft X10/8/15 (5) If no residents as described within Sections 14(a)(1)-(4) are qualified or can be qualified within a reasonable amount of time, residents in the County who reside outside of the County Targeted Zip Codes. The Parties agree that individuals will be employed based on the hierarchy established in Section 14(a). For purposes of clarity, the intent of Section 14(a) is to encourage the Developer and the Contractor to hire as many qualified persons who reside in the City to work on the Project. (b) The Contractor shall electronically post job opportunities in established job outreach websites and organizations, including, without limitation, Youth Co -Op, Inc., South Florida Workforce, Florida Department of Economic Opportunity Career Source of South Florida located in Miami, their successors or assigns, and similar programs in order to attract as many eligible minority applicants for such jobs as possible. (c) In connection with the work performed by the Developer, the Developer shall cause the Contractor to pay a minimum hourly wage rate of twelve dollars and eighty three cents ($12.83) if health benefits are not provided to employees and eleven dollars and fifty eight cents ($11.58) if health benefits are provided to employees. Commencing January 1st, 2018 and for the duration of the Project ("CPI Escalation Year"), the foregoing hourly rates shall be increased on January 1st of the applicable calendar year by an amount equal to the percentage increase during the calendar year immediately prior to the CPI Escalation Year in the consumer price index ("Index"), which is the monthly index published by the Bureau of Labor Statistics of the United States Department of Labor as the Consumer Price Index for All Items, Miami -Ft. Lauderdale, Florida, Base Year 1982- 84=100. The CPI adjustment to the minimum hourly wage rates shall hereinafter be referred to as the "CPI Escalation". The CPI Escalation of the minimum hourly wage rates for the CPI Escalation Year shall be equal to the minimum hourly wage rates in effect for the calendar year immediately preceding the CPI Escalation Year multiplied by the CPI Percentage (as defined below). The "CPI Percentage" shall equal the fraction (i) whose numerator equals the monthly Index published immediately prior to the CPI Escalation Year (or the nearest reported previous month) and (ii) whose denominator is the same monthly Index published immediately prior to the calendar year that preceded the CPI Escalation Year (or the nearest reported previous month). If the Index is discontinued with no successor Index, the City shall select a commercially reasonable comparable index. The CPI adjustment set forth herein shall not result in a reduction of the respective minimum hourly wage rates. (d) The Developer shall require the Contractor to include the same minimum hourly wage rates in any contracts entered into by the Contractor with its subcontractors for the Project who will stipulate and agree that they will #550255.doc Development Agreement Draft X10/8/15 pay the same minimum hourly wage rates, subject to adjustment, as set forth in this section. (e) Local Workforce Participation during Construction. At least twenty-five percent (25%) of those employed by the general contractor or subcontractor(s) for construction work shall be employed utilizing the following priorities: first, residents of the following three (3) area zip codes: 33130, 33128 and 33135; second, residents of the five (5) highest poverty rate index zip codes in the City; third, City residents in general; fourth, County residents who live in the five (5) highest poverty rate index zip codes in the County; and fifth, residents in the County in general. Residents who live in qualifying areas must receive preference for hiring in the Project. (f) Job Opportunity Advertisement. The Developer must provide ten (10) full- page weekly advertisements in the Diario de las Americas newspaper to inform residents of job opportunities and job fairs prior to construction commencement. This shall be in addition to advertisements done through other job outreach websites, organizations, and efforts. (g) Community Business Enterprise ("CBE"), Community Small Business Enterprise ("CSBE"), and Small Business Enterprise ("SBE"). (1) Seven and one half percent (7.5%) of the professional services agreements for soft costs including, but not limited to, design, engineering, survey, inspection, testing, and legal, shall be awarded to firms certified by the County as CBE, CSBE, and SBE firms at the time the contract is signed. (2) The Developer shall award ten percent (10%) of the contractual agreements for construction and construction -related materials, supplies and fixtures to firms certified by the County as CBE, CSBE, and SBE firms at the time the contract is signed. (h) Job Creation Monitoring Contract. Within sixty (60) days prior to issuance of a Permit for vertical improvements, the Developer will designate a firm who shall be CBE/CSBE/SBE certified whom will be designated to monitor the Local Workforce Participation, Job Opportunity Advertisement, and CBE/CSBE/SBE requirements. (i) The City and the Developer understand and agree that any uses or improvements by the Developer of public areas previously financed by the City through tax-exempt bonds at Jose Marti Park areas and/or City -owned streets, sidewalks, and rights of way areas shall require review by the City Attorney and the City's Bond Counsel regarding necessary ongoing compliance with U.S. Department of the Treasury Internal Revenue Service rules and regulations. #550255.doc Development Agreement Draft X10/8/15 Section 12. Construction of encroachments within the Public Right -of -Way. The City finds that the encroachments proposed by the Developer do not unduly restrict the use of the public right-of-way and are a necessary, essential element in the construction of the pedestrian overpasses above the same rights-of-way. The adoption of this Agreement shall serve to satisfy the requirements set forth in Section 55-14(b) of the City Code. The City hereby agrees to expeditiously sign off on all permits as owner of the City -owned Property that are the public rights-of-way, stab e fgea '^„a and Jose Marti Park, including but not limited to Public Works permits, bulkhead permits, and State permits with respect to submerged lands as may be required to effectuate the SAP and Project plans. The Developer represents to the City that it has, or will obtain, all necessary authorizations from the State regarding the State-owned submerged lands. Notwithstanding the requirements of Section 55-14(c) of the City Code, the City agrees to waive any and all claims to payment of a user fee in connection with the construction of the aforementioned encroachments within the public rights-of-way. Further, this Agreement shall satisfy the requirements of Section 55-14(d) of the City Code. In consideration for authorizing the construction of the aforementioned encroachments, the Developer further covenants to: (a) Maintain the above -grade pedestrian overpasses in accordance with the Florida Building Code, City Charter and Code. (b) Provide an insurance policy, in an amount determined by the City's risk manager, naming the City as the State, regarding the State-owned submerged lands, as additional insufe insureds for public liability and property damage. The insurance shall remain in effect for as long as the encroachment(s) exist above the City -owned Property, including the right-of-ways) and the State-owned Submerged Lands. Should the Developer fail to continuously provide the insurance coverage, the City shall have the right to secure similar insurance policy in its name and place a special assessment lien against the owner's abutting private property for the total cost of the premium. The Developer acknowledges and agrees that it will comply with all insurance coverages required by the State regarding the State-owned Submerged Lands. (c) The Developer shall hold harmless and indemnify the City, itsthe State, as applicable, and their respective officials and employees from any claims for damage or loss to property and injury to persons of any nature whatsoever arising out of the use, construction, and development of the Miami River SAP, including without limitation maintenance or removal of the pedestrian overpasses and from and against any claims which may arise out of the granting of permission for the encroachment or any activity performed under the terms of this Agreement. Section 13. Signage. The Project will need to comply with all applicable Federal, State, County and City signage rules, laws, orders, regulations, statutes, or ordinances. Permitted signage will accomplish the following goals: (i) moving pedestrians and vehicle traffic throughout the Property safely and efficiently; (ii) promoting safe and efficient pedestrian traffic within the property; and (iii) properly identifying the Property. The Signage Program will include, but is not limited to, the following sign types: (i) directional signage; (ii) ground signage; (iii) wall signage; (iv) monument signage; and (v) tower signage, some or all of which #550255.doc Development Agreement Draft X10/8/15 may incorporate LCD, LED, or similar electronic technology if approved and legally authorized. The Signage Program shall apply to signage visible from public rights-of-way. The Signage Program shall not apply to signage internal to the Project or not otherwise visible from the public right-of-way. Signage shall be approved by Warrant as described in Article 7 of Miami 21. Section 14. Parking. The Developer intends to establish a uniform valet system to service the SAP Applieatieft Afea.Project. Notwithstanding the limitations set forth in Sections 35-305 of the Code, a maximum of three (3) valet permits may be issued for the operation of a valet parking ramp on the same side of the block where the permit applicant is the operator of the uniform valet system. Robotic parking within enclosed parking structures shall be permitted. Section 15. Seawall. The Developer shall be responsible for any repairs to the seawall in compliance with the standards set forth by the Army Corps of Engineers and the City Code. The Developer shall increase the upland grade elevations to no less than four and one half feet 4.5' NAVD along the Riverwalk within the Property_and six feet 6.0' NAVD adjacent to any mixed use parcel containing residential uses as a condition to development so as to address the pertinent City and County goals, objectives and policies related to Coastal High Hazard Areas. The City hereby agrees to serve as co -applicant and/or applicant, as required, and expeditiously sign any permit applications required to effectuate the repair and reconstruction of the seawall, bulkhead and site grade elevation. The Developer hereby grees to obtain, as necessary, all applicable permissions or approvals from the State regarding any repairs and construction involving the State-owned submerged lands. In addition, the Developer will construct the bulkhead elevation of up to six and one half feet (6.5') where five and one half feet (5.5') is typically required, pursuant to the variance granted on July 2, 2015 subject to the conditions that the bulkhead transition from the end of the proposed Riverwalk to the existing walkway at the end of SW 3 Avenue in compliance with ADA slope regulations (Section 4.8.2, CFR) and that the proposed bulkhead cap shall be extended through the transition area matching the slope of the Riverwalk/walkway transition and providing a six (6) inch vertical reveal. Section 16. Retail Specialty Center Designation. Pursuant to Chapter 4 of the Code, the Miami River SAP is designated as a "Retail Specialty Center". Section 17. Alcoholic Beverage Sales. The Property is located within the I) -3D3 and T6 -36B-0 zoning transects as designated under Miami 21. Notwithstanding the requirements of Section 4-3.2 of the Code, Planning and Zoning Advisory Board, and City Commission approval shall not be required for bars (including taverns, pubs, and lounges), nightclubs, and supper clubs as principal uses proposed to be located within the Miami River SAP Project. Said establishments shall be authorized pursuant to the issuance of a Warrant (currently requires Exception). The Planning & Zoning Director shall consider the criteria set forth in Section 4-3.2.1 of the City Code when evaluating such Warrant applications. There shall be a maximum of ten (10) individual alcohol beverage establishments permitted within the Miami River SAP area. Section 18. Environmental. The City finds that the Project #550255.doc Development Agreement Draft X10/8/15 will confer a significant net improvement upon the publicly accessible tree canopy in the area. The City and the Developer agree that the Developer will comply with the intent and requirements of Chapter 17 of the City Code by performing tree replacement within the SAP Area where possible. Where replacement within the SAP Area is not possible, the Developer shall perform tree replacement within Jose Marti Park. Where replacement within Jose Marti Park is not possible, the Developer shall perform the required tree replacement within one (1) mile of the SAP or within any other City park, subject to approval by the City. The City further agrees to facilitate the permitting and planting of replacement trees on all publicly owned property within the area and within City parks. Section 19. Archaeological. Due to the Project's lee ati enclassification of High Probability in an Archaeological Conservation Area, the Developer shall obtain a "Certificate to Dig" prior to any ground disturbing activities, pursuant to Chapter 23 of the City Code. Section 20. Public Facilities. As of the Effective Date, the 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 Developer to provide Public Facilities to address any deficiencies in required levels of service occasioned by future development within the SAP Application Area or as a result of the development of the Project, the Developer shall provide such Public Facilities consistent with the timing requirements of Sections 163.3180, Florida Statutes (2014), or as otherwise required by Chapter 13 of the City Code, as amended from time to time, if applicable. The Developer shall be bound by the City impact fees and assessments in existence as of the Effective Date of this Agreement. Section 21. Release of Existing Ordinance 11000 Covenants. Upon approval of this Development Agreement by the City Commission, the Planning Director shall release two (2) Declarations of Restrictive Covenants recorded in the public records of Miami -Dade County related to prior development approvals for portions of the SAP Application Area. The first Declaration of Restrictive Covenants is recorded at Official Record Book 24194 at Page 1806 of the Public Records of Miami -Dade County, and was proffered along with a rezoning application for a portion of the project area, corresponding with the parcels in the middle section of the prejee4Project area. The second Declaration of Restrictive Covenants is recorded at Official Record Book 24997 at Page 2543 of the Public Records of Miami -Dade County, and was proffered along with a rezoning application for a portion of the southern section of the prejec4Proj ect area. Section 22. Compliance with Fire/Life Safety Laws. The 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 Developer will install and construct all required fire safety equipment and water lines with flow sufficient to contain all possible fire occurrences. Section 23. Local Development Permits. The Project may require additional permits or approvals from the City, County, State, or Federal government and any division thereof. Subject to required legal preeessprocesses and approvals, the City shall make a good #550255.doc Development Agreement Draft X10/8/15 faith effort to take all reasonable steps to cooperate with and facilitate all such approvals, including acting as an applicant. Such approvals include, without limitation, the following approvals and permits and any successor or analogous approvals and permits: (a) Subdivision plat and/or waiver of plat approvals; (b) Covenant or Unity of Title acceptance and thefeleasethe release of the two existing Declarations of Restrictions; (c) Building, Public Works and Bulkhead permits; (d) Certificates of use and/or occupancy; (e) Stormwater Permits; and (f) Any other official action of the City, County, or any other government agency having the effect of permitting development of the Property. In the event that the City substantially modifies its land development regulations regarding site plan approval procedures, authority to approve any site plan for a project in the SAP Application Area shall be vested solely in the City Manager, with the recommendation of the Planning and Zoning Director. Any such site plan shall be approved if it meets the requirements and criteria of the Zoning, the Comprehensive Plan and the terms of this Agreement. Section 24. Consistency with Comprehensive Plan. The City finds that development of the Miami River SAP is in conformity with the Existing Zoning and is consistent with the Comprehensive Plan. In the event that the Existing Zoning or the Comprehensive Plan requires the Developer to provide additional Public Facilities to accommodate the Project, the Development will provide such Public Facilities consistent with the timing requirements of Section 163.3180, Florida Statutes (2014). _The 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. Section 25. Necessitv of Complying 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 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 (2014), if state or federal laws are enacted after the execution of this development agreement which are applicable to and preclude the parties' compliance with the terms of this development agreement, this Agreement shall be modified or revoked as is necessary to comply with the relevant state or federal laws. Section 26. 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 #550255.doc Development Agreement Draft X10/8/15 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 Developer in achieving its development and construction milestones. The City will accommodate requests from the Developer's general contractor 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 eeOffice who will have a primary (though not exclusive) duty to serve as the City's point of contact and liaison with the 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 the foregoing, the City shall not be obligated to issue development permits to the extent the Developer does not comply with the applicable requirements of the Zoning, the Comprehensive Plan, this Agreement and applicable building codes. Section 27. Reservation of Development Rights. (a) For the term of this Agreement, the City hereby agrees that it shall permit the development of the SAP Application Area in accordance with the Comprehensive Plan, Miami 21, the Miami River SAP Regulating Plan, and this Agreement. (b) Nothing herein shall prohibit an increase in the density or intensity of development permitted in the SAP Application Area in a manner consistent with (a) Miami 21 and the Miami River SAP, and/or the Comprehensive Plan, (b) any zoning change subsequently requested or initiated by the Developer in accordance with applicable provisions of law or (c) any zoning change subsequently enacted by the City. (c) The expiration or termination of this Agreement shall not be considered a waiver of, or limitation upon, the rights, including, but not limited to, any claims of vested rights or equitable estoppel, obtained or held by the Developer or its successors or assigns to continue development of the SA43—Property in conformity with Existing Zoning and all active prior and subsequent development permits or development orders granted by the City. Section 28. Annual Review. (a) The City may 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 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 Developer during an annual review shall be limited #550255.doc Development Agreement Draft X10/8/15 to that necessary to determine the extent to which the 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 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 Developer and after a public hearing. Section 29. Notice. All notices, demands and requests which may or are required to be given hereunder shall, except as otherwise expressly provided, be in writing and delivered by personal service or sent by United States Registered or Certified Mail, return receipt requested, postage prepaid, or by overnight express delivery, such as Federal Express, to the Parties at the addresses listed below. Any notice given pursuant to this Agreement shall be deemed given when received. Any actions required to be taken hereunder which fall on Saturday, Sunday, or United States legal holidays shall be deemed to be performed timely when taken on the succeeding day thereafter which shall not be a Saturday, Sunday or legal holiday. To the City: With a copy to: City Manager, City of Miami 3500 Pan American Drive Miami, FL 33133 City Attorney, City of Miami Miami Riverside Center 444 S.W. 2nd Ave., 91h Floor Miami, FL 33130 To the Developer: With a copy to: CG Miami River, LLC Attn: Ari Pearl 2915 Biscayne Boulevard, Ste 300 Miami, FL 33137 Bercow Radell & Fernandez, PLLC Attn: Melissa Tapanes Llahues, Esq. 200 S. Biscayne Boulevard, Ste 850 Miami, FL 33131 Any Party to this Agreement may change its notification address(es) by providing written notification to the remaining parties pursuant to the terms and conditions of this section. #550255.doc Development Agreement Draft X10/8/15 Section 30. 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 *4pthe Property. Section 31. Common Area Maintenance. The Developer will create prior 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 instrument creating the association or other entity shall be subject to the reasonable approval of the City Attorney. Section 32. Modification. In accordance with the Project plans, the Project will be developed in five (5) Phases. This Agreement may be modified, amended or released as to Phase 11, or any portion thereof, by a written instrument executed by the, then, owner(s) of Phase 11 including joinders of all mortgagees, if any, provided that the same is also approved by the City, after public hearing. Any public hearing application related to Phase 1, or any portion thereof, shall only require the consent, acknowledgment and/or joinder of the then owner(s) of Phase 1. This Agreement may be modified, amended or released as to Phase 2, or any portion thereof, by a written instrument executed by the, then, owner(s) of Phase 2, including joinders of all mortgagees, if any, provided that the same is also approved by the City, after public hearing. Any public hearing application related to Phase 2, or any portion thereof, shall only require the consent, acknowledgment and/or joinder of the then owner(s) of Phase 2. This Agreement may be modified, amended or released as to Phase 3, or any portion thereof, by a written instrument executed by the, then, owner(s) of Phase 3, including joinders of all mortgagees, if any, provided that the same is also approved by the City, after public hearing. Any public hearing application related to Phase 3, or any portion thereof, shall only require the consent, acknowledgment and/or joinder of the then owner(s) of Phase 3. This Agreement may be modified, amended or released as to Phase 4, or any portion thereof, by a written instrument executed by the, then, owner(s) of Phase 4, including joinders of all mortgagees, if any, provided that the same is also approved by the City, after public hearing. Any public hearing application related to Phase 4, or any portion thereof, shall only require the consent, acknowledgment and/or joinder of the then owner(s) of Phase 4. This Agreement may be modified, amended or released as to Phase 5, or any portion thereof, by a written instrument executed by the, then, owner(s) of Phase 5, including joinders of all mortgagees, if any, provided that the same is also approved by the City, after public hearing. Any public hearing application related to Phase 5, or any portion thereof, shall only require the consent, acknowledgment and/or joinder of the then owner(s) of Phase 5. In the event that there is a recorded homeowners or condominium association covering any portion of Phases 1, 2, 3, 4, 5, or any portion thereof, said association may (in lieu of the signature or consent of the individual members 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 #550255.doc Development Agreement Draft X10/8/15 made pursuant to a vote of the homeowners or condominium association shall be evidenced 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. Section 33. Enforcement. The City, its successors or assigns, and the 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. 4411 pt:evaili g r„,4. i *',� aetiefi et: stiit shall be e*titled to t:eeevef, in addition to eests and disbtirsefRelits allowed by law Section 34. Authorization to Withhold Permits and Inspections. In the event the Developer is obligated to make payments or improvements under the terms of this Agreement or to take or refrain from taking any other action under this Agreement, and such obligations are not performed as required, in addition to any other remedies available, the City is hereby authorized to withhold any further permits, and refuse any inspections or grant any approvals, for the specific Phase of development the outstanding obligations relate to until such time as this Agreement is complied with. Section 35. Emergency Management and Mitigation Plan. Prior to the issuance of a Certificate of Occupancy, Temporary Certificate of Occupancy ("TCO"), or the equivalent for the first new single -use building in the Miami Rive . SAP Application Area, the 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 Miami Rive SAP Application Area. The Developer, or its 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. Section 36. Exclusive 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 City and the Developer shall each have the right to specific performance of this Agreement in court. Each party shall bear its own attorney's fees. Each party waives any defense, whether asserted by motion or pleading, that the aforementioned courts are an improper or inconvenient venue. Moreover, the parties consent to the personal jurisdiction of the aforementioned courts and irrevocably waive any objections to said jurisdiction. The Parties irrevocably waive any rights to a jury trial. #550255.doc Development Agreement Draft X10/8/15 Section 37. Voluntary Compliance. The Parties agree that in the event all or any part 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. Section 38. Severability. Invalidation of any of *i,v-So eave-,:R 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. Section 39. Events of Default. (a) The Developer shall be in default under this Agreement if any of the following events occur and continue beyond the applicable grace period: the Developer fails to perform or breaches any term, covenant, or condition of this Agreement which is not cured within thirty (30) days after receipt of written notice from the City specifying the nature of such breach; provided, however, that if such breach cannot reasonably be cured within thirty (30) days, then the 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 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. Section 40. Remedies Upon Default. (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 Developer and the City 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. #550255.doc Development Agreement Draft X10/8/15 Section 41. Obligations Surviving Termination Hereof. 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 indicates either that it survives the termination or expiration here of or is or may be applicable or effective beyond the expiration or permitted early termination hereof. Section 42. No Oral Chante or Termination. This agFee R-e-14Agreement and the exhibits and appendices appended hereto and incorporated herein by reference, if any, constitute the entire Agreement between the Parties with respect to the subject matter hereof. This Agreement supersedes any prior agreements or understandings between the Parties with respect to the subject matter hereof, and no change, modification, or discharge hereof in whole or in part shall be effective unless such change, modification or discharge is in writing and signed by the party against whom enforcement of the change, modification or discharge is sought. This Agreement cannot be changed or terminated orally. Section 43. Lack of Auncy Relationship. Nothing contained herein shall be construed as establishing an agency relationship between the City and the Developer and neither Developer nor its employees, agents, contractors, subsidiaries, divisions, affiliates or guests shall be deemed agents, instrumentalities, employees, or contractors of the City for any purpose hereunder, and the City, its officials, contractors, agents, and employees shall not be deemed contractors, agents, or employees of the Developer or its subsidiaries, divisions or affiliates. Section 44. SuccessorW Assigns, and Designees. The covenants and obligations set forth in this Agreement shall extend to the Developer, its 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. Section 45. Third Party Defense. The City and the Developer 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 City and the Developer shall promptly give the other written notice of any such action, including those that are pending or threatened, and all responses, filings, and pleadings with respect thereto. Section 46. No Third -Party Beneficiary. No persons or entities other than the Developer and the City, permitted successors and assigns, shall have any rights whatsoever under this Agreement. #550255.doc Development Agreement Draft X10/8/15 Section 47. 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. Section 48. Representations, Representatives. 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. Section 49. No Exclusive Remedies. No remedy or election given by any provision in the Agreement shall be deemed exclusive unless expressly so indicated. Wherever possible, the remedies granted hereunder upon a default of the other party shall be cumulative and in addition to all other remedies of law or equity arising from such event of default, except where otherwise expressly provided. Section 50. No Conflict of Interest. The Developer agrees to comply with Section 2- 612 of the City Code as of the Effective Date, with respect to conflicts of interest. Section 51. Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall constitute an original but all of which, when taken together, shall constitute one and the same agreement. NOW, WHEREOF, the City and the Developer have caused this Agreement to be duly executed. #550255.doc tion Pages for the City and the Developer Follow] L 'I Development Agreement Draft X10/8/15 IN WITNESS WHEREOF, these presents have been executed this day of .2015. CG Miami River, a Delaware limited Witnesses liability corporation Name: Bv: Print Name Name: Print Name STATE OF )SS COUNTY OF Title-- STATE itle= The foregoing instrument was acknowledged before me this day of , 2015 by of CG Miami River, LLC who is Personally known to me or ( ) produced a valid driver's license as identification. Notary Public: Sign Name: Print Name: My Commission Expires: #550255.doc [NOTARIAL SEAL] Development Agreement Draft X10/8/15 City of Miami, a Florida municipal corporation By: Daniel J. Alfonso, City Manager ATTEST: Approved as to Insurance Requirements: B: B: I'odd Hannon, Cily Clerk Anne -Marie arpe, Risk Management Director Approved as to Form and Correctness: B: ictona Mendez, Cily Tttorney STATE OF COUNTY OF The foregoing instrument was acknowledged before me this day of 2015 b of the City Miami, Florida, who is the if the City and who is personally known to me or ( ) produced a valid driver's license as identification. Notary Public: Sign Name: Print Name - My Commission Expires: [NOTARIALSEALI #550255.doc PHASE 3 PHASE 1 58 -STORY 58 -STORY TOWER TOWER PHASE 5 PHASE 4 PHA— SE 2 , 60 -STORY 60 -STORY 3 -STORY TOWER TOWER L — — — —— 2ND AVENUE BRIDGE 3 / 1 iii //�E 2 �3-STORY L JOSE MARTI PARK ,,a, NO � oec. tS, Leta App. oi. 2—, 8 Apc3o.mr Rw Kimley,»Horn a SPECIAL AREA PLAN (10.2 acres) ® CRY Area +/3.0 acres `/ 10131 KARP Private 1ea ARCHITECTURE UESIGN _INTERIOR P NG AMID N-6 PUBLIC BENEFIT AREA *Riverwalk in Jose Marti (4 9,365sf. 10.3ACRES) Park will be constructed associated with phase I C 3 TRAFFIC IMPROVEMENTS Www,KoeiltaaacOra SAP AREA B_8 I i : ■ :: I Z n —I ♦ ♦ a � F Z r----� ♦♦ a 9 N 3 � � I • v N N N I � , ♦♦♦ �{ I �Qy • s ` ♦ J ♦ W AV I W RD E. - ♦♦ • SW 3 N ♦ C_ `-*#A-0WERZYC... - i /7 ♦T ®VIEW CORRIDOR =1169'4' L C< IIII Id �• J SW 2.5 AVE. _ � � .._ _ _ ♦s � �\ lelit &—_ ✓ vQ�` ��aa l per, Ke ',—w� EwcoRRlooR=zzs- a� IIII SEPTEMBER 11, 2014 1z ® 1 28,201S `VIEW CORRIDOR=139'8' ® Feb. 26, 2015 ZL Ap, 01, 2015 8 Apr. 30, 2015 I E .2ND AVENUE BRIDGE I — I ' %OF LENGTH ' AVG. LENGTH -- - - - -- - - -L---------- L- ---- - - - --- 2 ,:..,.,. REQUIRED I 25 I 428'-7" Rw 1 ---------- -------- --r- ---- - - - - -- Kimley»Horn PROVIDED I 90 1535'-7" ME I .1 --------------------r----------- JY 1 1 I a.a�owa.,oy_,hF�Ay.v�-. — — — SAP AREA — • .... ■ RIVER FRONTAGE 1714'-6" VIEW CORRIDOR LENGTH KOBI KARP ' MI D IDOR b _ ARCHITECTURE VIEW CORR W _5, INTERIOR DESIGN BY DEFINITION OF MIAMI 21, ARTICLE 1 7 PLANNING VIEW CORRIDOR: AN AXIAL VIEW TERMINATING ON A NATURAL OR 61111-MG FOOTPRINT - AIA Al'° - HISTORICAL FEATURE. 5 10 25 50 100 LIGHT & VIEW CORRIDOR DIAGRAM -) B-11 �I r 1 1 , 1 , 1 ; 1 , 1 SW 3RD AVE. 1,7 1 �'I i I �♦ i _... _ ..... i I ! I I 1 2ND AVENUE BRIDGE BY DEFINITION OF MIAMI 21, ARTICLE 1 OPEN AREA: ANY PARCEL OR AREA OF LAND OR WATER ESSENTIALLY UNIMPROVED BY PERMANENT BUILDINGS AND OPEN TO THE SKY; SUCH SPACE SHALL BE RESERVED FOR PUBLIC OR PRIVATE USE. CIVIC SPACE: A ZONE WITH MAINLY OUTDOOR AREA DEDICATED FOR FUNCTIONING FOR COMMUNITY PURPOSES. a1s SAP AREA (102 ACRES) n [� CIVIC SPACE (35,694sf 8%) OPEN SPACE (15,175d 3%)- s 10 25 so 100 OPEN AREA & CIVIC DIAGRAM " PROPOSED BENEFIT CONTRIBUTION SUMMARY Benefit Benefit Price Area Benefit Phase per Square (Square Contribution Foot Feet 1 3121400 $17.82 $5,566,968 3 3121400 $17.82 $5,566,968 4 2421400 $17.82 $4,319,568 5 340,800 $17.82 $6,073,056 Total $21,526,560 ECONOMIC BENEFITS Construction Costs Phase Estimated Construction Costs Phase 1 $219,532,900 Phase 2 $5,460,809 Phase 3 $219,532,900 Phase 4 $152,035,420 Phase 5 $219,532,900 Total Construction Costs $924,723,600 ECONOMIC BENEFITS Impact Fees Associated with SAP Development Impact Fee Estimated Total City Police $344,181 City Fire- Rescue $776,382 City Gen. Services $438,390 City Parks and Rec. $6,643,202 City Admin Fee $246,065 Miami -Dade County Road $10,346,625 Miami -Dade County School $3,025,238 Miami -Dade County Water & Sewer Connection $2,136,578 Estimated Total Impact Fees $23,956,661 $45,000,000 $40,000,000 $35,000,000 $30,000,000 $25,000,000 $20,000,000 $15,000,000 $10,000,000 $5,000,000 44,n ECONOMIC BENEFITS Ad Valorem Taxes Generated $41,210,776 $522,788 INN-- Amount in Dollars ($)