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REAL ESTATE PURCHASE AND EXCHANGE AGREEMENT
THIS REAL ESTATE PURCHASE AND EXCHANGE AGREEMENT (the
"Agreement") is made as of the_ day of _ , 2015 (the "Effective Date"), by and
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between FDG Rail Holdings 25 C, a Delaware limited liability company ("FDG"), All Aboard
Florida - Operations LLC, a Delaware limited liability company ("AAF") and City of Miami, a
Florida municipal corporation (the "City"). FDG, AAF and the City shall each be referred to as a
"Party" and collectively, as the "Parties".
WITNESSETH:
In consideration of the mutual undertakings of the parties set forth in this Agreement and of
other valuable considerations, the receipt and sufficiency of which the parties hereby acknowledge,
the parties hereby agree as follows;
1. City Property to be Exchanged. The City is the owner in fee simple of that certain parcel
of property, containing approximately 0.18 acres, located in Miami -Dade County, Florida, as more
particularly described on Exhibit A attached hereto and made a part hereof, together with all
appurtenances, hereditaments and improvements located thereon (the "City Property South"). The
legal description provided on the Survey of City Property (as defined in Section 8.1 of this
Agreement) shall define the City Property for all purposes of this Agreement. The City is also the
owner in fee simple of that certain parcel of property, containing approximately 0.32 acres, located
in Miami -Dade County, Florida, and identified as Folio number 01-3136-000-0090, as more
particularly described on Exhibit B attached hereto and made a part hereof ("Tracts F&G"). The
City will exchange Tracts F&G, subject to a reservation of air rights above 100 feet ("City Property
North") and the City Property South (together the "City Property"). Notwithstanding the change in
the manner in which the City Property or Tracts F&G are described, the intent of the City is to
convey the properties described in Exhibits A and B. The City Property to be exchanged is not
buildable and is non -waterfront property. The City Property North to be exchanged is in
furtherance of implementation of transportation projects of governmental agencies or
instrumentalities. FDG and/or AAF and its affiliates are owners of adjacent property. The City
Commission based on a recommendation of the City Manager that it is in the best interest to
consummate this exchange has determined that it is exempt from the provisions of 18- 182, City of
Miami City Code ("City Code"), by a two-thirds affirmative vote.
2. FDG Property to be Exchanged. FDG is the owner in fee simple of that certain parcel of
property, containing approximately 0.50 acres, located in Miami -Dade County, Florida, as more
particularly described on Exhibit C attached hereto and made a part hereof, together with all
appurtenances, hereditaments and improvements located thereon (the "FDG Property"). The legal
description(s) provided on the Survey of FDG Property (as defined in Section 9.1 of this
Agreement) shall define the FDG Property for all purposes of this Agreement.
3. Crossing Easement Agreement. The City hereby grants to AAF and its assigns the right to
cross certain portion of NW 8`' Street ("Existing Roadway"), including subsurface rights and air
rights up to one hundred (100) feet as shown in Exhibit D, attached hereto and made apart hereof,
for purposes of including, but not limited to, constructing, operating, and maintaining rail
infrastructure including air and grade crossing, installation of signs, pipelines and/or communication
cables, over, under and across the Existing Roadway (the "Crossing Easement Agreement"). The
Crossing Agreement shall be in a form sufficient to permit the Title Insurer to insure title in AAF in
the Crossing Easement Agreement as provided for in Section 8.2 below. AAF and the City agree
that the Crossing Easement Agreement shall contain the insurance provisions set forth in that
certain Aerial'Easement to be entered into by DT Miami LLC and the City of Miami for easements
over N.W. 5t1' Street and N.W. 6"' Street between N.W. l't Avenue and Miami -Dade County
MetroRail North Corridor Right of Way and noted on the Plat of Flagler Gran Central Station as
recorded in Plat Book 170 page 41 of the Public Records of Miami -Dade County, Florida. Further,
AAF shall use commercially reasonable efforts to obtain Florida East Coast Railway, L.L.C.'s
("FECR") agreement as to the location of FECR's easement across the Existing Roadway and
FECR's express agreement to waive its right to relocate the easement in the future.
4. Roadway Construction. During the Inspection Period, the City and FDG shall work
together to conceptually design NW 1St Avenue between NW 1St Street and NW 2nd Street ("New
Roadway") substantially in accordance with Exhibit E attached hereto and made a part hereof
FDG shall, at its sole cost and expense, design and construct the New Roadway in accordance with
the City Code and the Dade County Public Works Manual. The New Roadway construction is
estimated to commence on or about September 1, 2016 and be completed and open for normal
operation on or about March 1, 2017.
5. Right of Wav Vacation, Platting and Entitlements.
5.1 The City and AAF and FDG shall file and process, at AAF's or FDG's expense, the
application required in order to replat (the "Plat Process") the City Property and Tract A of
FLAGLER GRAN CENTRAL STATION, according to the Plat thereof, as recorded in Plat Book
170, Page 41, of the Public Records of Miami -Dade County, Florida (together, the "Reconfigured
Lot"), which would include the vacation, at no additional cost beyond applicable costs prescribed by
the City Code to FDG, of the right of way located within, bisecting or between the parcels
constituting the City Property, as depicted on Exhibit F attached hereto and made a part hereof.
FDG's obligation to close this transaction shall be contingent upon the City completing the Plat
Process. The City agrees to cooperate and facilitate throughout the Plat Process.
5.2 The City shall reasonably cooperate in AAF's efforts to modify the Interlocal
Agreement between the City and Miami -Dade County to allow the expansion of the Rapid Transit
Zone to include the entire Reconfigured Lot. In addition, FDG shall continue to count the square
footage of the FDG Property after the transfer to the City to comply with the green space
requirement whether or not the City thereafter constructs improvements on the FDG Property. The
provisions of this Section 5.2 shall survive the Closing.
6. Inspection. Commencing on the Effective Date and expiring at 5:00 p.m. on the date that is
sixty (60) days after the Effective Date (the "Inspection Period"), AAF, FDG and their agents shall
have the right and privilege to enter upon the City Property, at their own risk and expense, to
inspect, examine, survey and perfonn such tests, inspections, studies or other evaluations of the City
Property as AAF and FDG may deem necessary in conjunction with AAF's and FDG's acquisition
of the City Property, including, but not limited to, a Phase I and/or Phase II environmental audit, an
engineering feasibility study which may include topographic surveys, core borings, groundwater
testing, soil test pits and load bearing tests, as may be required by AAF and/or FDG to determine
the physical characteristics of the substrata of the City Property. Within ten days of the Effective
Date, the City shall provide AAF and FDG with all property information in the City's control
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including, but not limited to, environmental reports, title reports, surveys, permits, approvals, and
leases. If AAF and FDG terminates this Agreement or fails to purchase the City Property, AAF
and/or FDG shall restore the City Property to its original condition, or better, and shall indemnify
and hold the City harmless from and against any and all claims, costs, expenses and damages to
persons and/or property incurred by, through, or out of the exercise of such privilege. AAF and
FDG (at their respective own cost and expense) shall indemnify, hold harmless and defend the City,
its officials and employees from any civil actions challenging this Agreement through and including
the date of Initial Closing (as defined in this Agreement) and shall have no recourse against the City
as a result of such civil actions. AAF's and FDG's obligation to indemnify the City set forth herein
shall survive the Initial Closing Date or Closing Date (as defined in this Agreement), as applicable,
of this Agreement or the termination of this Agreement. Prior to performing any inspections, AAF
and/or FDG shall provide evidence to the City that all consultants or contractors conducting
inspections carry commercial general liability insurance insuring its activities with coverage in an
amount not less than $2,000,000 per occurrence, and policy aggregate, as well as other related lines
of coverage or requirements as may be required by the City in connection with this Agreement. All
such policies shall be written on an occurrence basis and list the City as an additional insured,
including endorsements, which shall be reasonably approved by the Director of Risk Management,
or designee. Such coverage shall be kept in place until the Initial Closing Date or Closing Date, as
applicable, or earlier termination of this Agreement. As it relates to City employees accessing the
Property, the City is self-insured against any claim.
During such Inspection Period, the City and its agents shall have the right and privilege to
enter upon the FDG Property, at their own risk and expense, to inspect, examine, survey and
perform such tests, inspections, studies or other evaluations of the FDG Property as the City may
deem necessary in conjunction with the City's acquisition of the FDG Property, including, but not
limited to, a Phase I and/or Phase II environmental audit, an engineering feasibility study which
may include topographic surveys, core borings, groundwater testing, soil test pits and load bearing
tests, as may be required by the City to determine the physical characteristics of the substrata of the
FDG Property. Within ten days of the Effective Date, FDG shall provide the City with all property
information in FDG's control including, but not limited to, environmental reports, title reports,
surveys, permits, approvals, and leases. If the City terminates this Agreement or fails to acquire the
FDG Property, the City shall restore the FDG Property to its original condition and shall indemnify
and hold FDG harmless from and against any and all claims, costs, expenses and damages to
persons and/or property incurred by, through, or out of the exercise of such privilege. The City's
obligation to indemnify FDG set forth herein shall survive the Initial Closing Date or Closing Date,
as applicable, of this Agreement or the termination of this Agreement. Nothing herein shall be
construed as a waiver of the City's sovereign immunity. Nothing herein shall be construed as
consent by the City to be sued by third parties. Prior to performing any inspections, the City shall
provide evidence to FDG that all consultants or contractors conducting inspections carry
commercial general liability insurance insuring its activities with coverage in an amount not less
than $2,000,000 per occurrence, and all such policies shall be written on an occurrence basis and
naive FDG as an additional insured, which insurance shall be reasonably approved by the Director
of Risk Management, and such coverage shall be kept in place until the Initial Closing Date or
Closing Date, as applicable, or earlier termination of this Agreement.
Notwithstanding anything contained herein to the contrary, inspections by AAF, FDG or the
City (each an "Inspecting Party") shall be subject to the following terms and conditions:
(a) At a Party's request, the other Party shall provide a copy of any report or other
information, other than an exempt record, produced as a result of any inspection within 5 days.
(b) Each Party may have a representative present at any inspection, including, without
limitation, an environmental audit.
(c) Each Party shall snake any request to the other Party to conduct an inspection of the
City Property or FDG Property, as applicable, at least 24 hours prior to the proposed time for the
conduct thereof, which notice shall specify the type of inspection to be conducted by such Party.
(d) If a Party performs invasive environmental testing (such as drilling or soil or
groundwater testing) or a Phase II environmental audit, both Parties shall both receive copies of the
report compiled by the contractor. In the event the Phase II audit reveals any condition that,
according to applicable law, must be reported to a governmental authority, then acquiring Party
shall allow the conveying Party or its agent to make the initial contact with such governmental
authority regarding such condition.
AAF and/or FDG shall have the right, which may be exercised by delivering written notice
to the City and FDG at any time during the Inspection Period, to terminate this Agreement for any
reason that AAF and/or FDG, as applicable, deems appropriate. Upon delivery of written notice of
termination to the City during the Inspection Period, this Agreement shall terminate and all the
parties hereto will have no further rights or obligations hereunder except those mentioned herein
that specifically survive termination.
The City shall have the right, which may be exercised by delivering written notice to AAF
and FDG at any time during the Inspection Period, to terminate this Agreement for any reason that
the City deems appropriate. Upon delivery of written notice of termination to AAF and FDG during
the Inspection Period, this Agreement shall terminate and all the parties hereto will have no further
rights or obligations hereunder except those mentioned herein that specifically survive termination.
7. Condition of Property. The Parties understand and agree that they are acquiring the City
Property or the FDG Property, as applicable, in an "as is where is" condition with all faults and
without any representation or warranty on the part of the conveying Party except as otherwise
specified herein. Each Party is solely responsible for obtaining all necessary development
approvals fiom government entities. Neither Party represents that any government approval has
been given for development on any specific site or parcel. AAF or FDG, as applicable, represents
and warrants to the City that AAF or FDG, as applicable, is relying solely upon its own
investigations and inspections made during the Inspection Period, and as a result the City shall not
be obligated to make any modifications to the City Property as a condition to AAF's or FDG's, as
applicable, obligation to close. The City represents and warrants to FDG that the City is relying
solely upon its own investigations and inspections made during the Inspection Period, and as a
result FDG shall not be obligated to make any modifications to the FDG Property as a condition to
the City's obligation to close.
8. Survey of ON Property and Title Review.
8.1 Survey. Within forty-five (45) days after the Effective Date (the "Title and Survey
Deadline"), AAF and FDG shall obtain, at AAF's or FDG's expense, a boundary survey of the City
Property prepared by a licensed Florida land surveyor in accordance with Florida minimum
technical standards (the "Surveyof City Prosy"). The Survey of City Property shall be certified
to AAF or FDG, the City and Title Insurer, as defined in Section 8.2 hereof, and shall describe an
overall metes and bounds legal description of the City Property and show the total area of the City
Property to the nearest square foot. Upon receipt of the Survey of City Property, AAF or FDG shall
provide a copy to City.
8.2 Title Insurance. Prior to the expiration of the Title and Survey Deadline, AAF or
FDG may obtain an owner's title insurance commitment with copies of all exceptions and
attachments thereto (the "AAF and FDG Commitment") from First American Title Insurance
Company, as title insurer ("Title Insurer"), at AAF's or FDG's expense, which commits to insure
AAF's or FDG's fee simple title to the City Property in an amount acceptable to AAF or FDG, as
applicable. Title Insurer shall commit to issue an owner's title insurance policy to AAF or FDG, as
applicable, within sixty (60) days following the date of Initial Closing or Closing, as applicable,
insuring AAF's or FDG's fee simple title to the City Property free and clear of all liens and
encumbrances except (i) those exceptions not objected to by AAF or FDG under the provisions of
Section 8.3, (ii) those exceptions created by AAF or FDG, and (ii) those City Property Title
Defects, as defined in Section 8.3, which the City is unwilling or unable to cure in the event AAF or
FDG does not terminate this Agreement pursuant to Section 8.3 (the "City Property Permitted
Exception").
8.3 RAF's and FDG's Review. AAF and FDG shall have fifteen (15) days after its
receipt of the AAF and FDG Commitment and the Survey of City Property, to examine the Survey
of City Property and the AAF and FDG Commitment and to notify the City in writing of any
defects in title to the City Property ("City Property Title Defects"). The City shall not be obligated
to remedy or remove the City Property Title Defects. If the City is unwilling or unable to remedy
all the City Property Title Defects, the City shall deliver notice thereof to AAF and FDG within ten
(10) days of receipt of RAF's or FDG's notice of the City Property Title Defects. Upon receipt of
notice from the City that it is unwilling or unable to remedy all of the City Property Title Defects,
AAF or FDG shall then have the option of either: (i) providing the City notice of its election to
terminate this Agreement no less than five (5) business days prior to Initial Closing or Closing, as
applicable, whereupon both parties shall thereafter be relieved of all further obligations under this
Agreement which do not specifically survive its termination, or (ii) taking title as it then exists
without changing the obligations set forth in this Agreement. If AAF or FDG does not give notice
to the City of its intention to terminate the Agreement at least five (5) business days prior to Initial
Closing Date or Closing Date, as applicable, AAF and FDG shall be deemed to have waived its
right to terminate the Agreement pursuant to this section. Notwithstanding the foregoing to the
contrary, the City shall be obligated to discharge, either at or before Initial Closing or Closing, as
applicable„ all mortgages, construction liens, and other liens, and past due taxes.
8.4 _Update of Title Commitment and Survey Prior To Closing_ AAF and FDG shall
have the right to update the AAF and FDG Commitment and Survey of City Property during the
period between the end of the Inspection Period and the Initial Closing Date or Closing Date, as
applicable. In the event that any such update discloses any additional title and/or survey matters
that were not shown on the AAF and FDG Commitment and/or Survey of City Property, as
applicable, which either (i) renders title unmarketable according to the applicable title standards
adopted by the authority of The Florida Bar, or (ii) materially and adversely affect RAF's and
FDG's intended use of the Property in AAF's and FDG's commercially reasonable discretion, AAF
or FDG shall give the City written notice of any such matters within five (5) days after AAF or
FDG receives notice thereof, but in no event later than the Initial Closing Date or Closing Date, as
applicable (the "AAF or FDG Objection Notice"), otherwise AAF and FDG shall be deemed to
have waived its right to give an AAF or FDG Objection Notice for such title matters (if any). The
City shall thereafter have a period of ten (10) days from receipt of an AAF or FDG Objection
Notice to cure such matters and to the extent that such ten (10) day time period would expire
beyond the Initial Closing Date or Closing Date, as applicable, shall be automatically extended to
the date that is ten (10) days following the expiration such ten (10) day period; provided, however,
in no event shall the City have any obligation to cure or remove any title matters except those
monetary exceptions created by the City's acts as set forth above. If the City is unwilling to cure
such title matters within such 10 -day period, AAF or FDG will have a period of five (5) days
thereafter in which to elect, by written notice to the City, whether to: (i) waive the unsatisfied title
and/or survey matters and complete the purchase of the Property subject thereto, without reduction
of the Exchange Price, if applicable; or (ii) terminate this Agreement, whereupon AAF, FDG and
the City shall be released of all obligations hereunder that do not expressly survive termination of
this Agreement. If AAF or FDG fails to make an election within such time period, AAF and FDG
will be deemed to have elected to waive such title and/or survey matters, all of which shall be
deemed to be the City Property Permitted Exceptions hereunder.
9. Survey of FDG Property and Title Review.
9.1 Survey. Prior to the expiration of the Title and Survey Deadline, FDG shall obtain,
at FDG's expense, a boundary survey of the FDG Property prepared by a licensed Florida land
surveyor in accordance with Florida minimum technical standards (the "Survey of FDG Propertt ').
The Survey of FDG Property shall be certified to FDG, the City and Title Insurer and shall describe
an overall metes and bounds legal description of the FDG Property and show the total area of the
FDG Property to the nearest square foot. Upon receipt of the Survey of the FDG Property, the City
shall provide a copy to FDG.
9.2 Title Insurance. Prior to the expiration of the Title and Survey Deadline, FDG shall
obtain an owner's title insurance commitment with copies of all exceptions and attachments thereto
(the "City Commitment") from Title Insurer, at FDG's expense, which commits to insure the City's
fee simple title to the FDG Property in the amount acceptable to the City. Title Insurer shall
commit to issue an owner's title insurance policy to the City within sixty (60) days following the
date of Initial Closing Date or Closing Date, as applicable insuring City's fee simple title to the
FDG Property free and clear of all liens and encumbrances except (i) those exceptions not objected
to by the City under the provisions of Section 9.3 and (ii) those FDG Property Title Defects, as
defined in Section 9.3, which FDG is unwilling or unable to cure in the event the City does not
terminate this Agreement pursuant to Section 9.3 (the "FDG Property Permitted Exceptions").
9.3 City's Review. The City shall have fifteen (15) days after its receipt of the City
Connmitment and the Survey of FDG Property, to examine the Survey of FDG Property and the City
Commitment and to notify FDG in writing of any defects in title to the FDG Property ("FDG
Property Title Defects"). FDG shall not be obligated to remedy or remove the FDG Property Title
Defects. If FDG is unwilling or unable to remedy all FDG Property Title Defects, FDG shall
deliver notice thereof to the City within ten (I0) days of receipt of the City's notice of FDG
Property Title Defects. Upon receipt of notice from FDG that it is either unwilling or unable to
remedy all of the FDG Property Title Defects, the City shall then have the option of either: (i)
on
providing FDG notice of its election to terminate this Agreement no less than five (5) business days
prior to Closing or (ii) taking title as it then exists without reduction in the Exchange Price, if
applicable. If the City does not give notice to FDG of its intention to terminate this Agreement at
least five (5) business days prior to Closing, the City shall be deemed to have waived its right to
terminate this Agreement pursuant to this section. Notwithstanding the foregoing to the contrary,
FDG shall be obligated to discharge, either at or before Closing, all mortgages, construction liens,
other liens and judgments, and past due taxes.
9.4 Update of Title Commitment and Survey Prior To Closing The City shall have the
right to update the City Commitment and Survey of FDG Property during the period between the
end of the Inspection Period and the Closing Date. In the event that any such update discloses any
additional title and/or survey matters that were not shown on the City Commitment and/or Survey
of FDG Property, as applicable, which either (i) renders title unmarketable according to the
applicable title standards adopted by the authority of The Florida Bar, or (ii) materially and
adversely affect the City's intended use of the FDG Property in the City's reasonable discretion, the
City shall give FDG written notice of any such matters within five (5) days after the City receives
notice thereof, but in no event later than the Closing Date (the "City Objection Notice"), otherwise
the City shall be deemed to have waived its right to give a City Objection Notice for such title
matters (if any). FDG shall thereafter have a period of ten (10) days from receipt of a City
Objection Notice to cure such matters and to the extent that such ten (10) day time period would
expire beyond the Closing Date, the Closing Date shall be automatically extended to the date that is
ten (10) days following the expiration of such ten (10) day period; provided, however, in no event
shall FDG have any obligation to cure or remove any title matters except for except those monetary
exceptions created by FDG's acts as set forth above. If FDG fails, is unable or unwilling to cure
such title matters within such 10 -day period, the City will have a period of five (5) days thereafter in
which to, elect, by written notice to FDG, whether to: (i) waive the unsatisfied title and/or survey
matters and complete the exchange of the City Property for the FDG Property subject thereto,
without reduction of the obligations set forth in this Agreement; or (ii) providing the City notice of
its election to terminate this Agreement, whereupon FDG and the City shall be released of all
obligations hereunder that do not expressly survive termination of this Agreement. If the City fails
to make an election within such time period, the City will be deemed to have elected to waive such
title and/or survey matters, all of which shall be deemed to be FDG Property Permitted Exceptions
hereunder.
10. AAF Public Benefit Contribution. At Closing, AAF shall contribute, in lump sum, in cash
or by its equivalent, to the City an amount equal to five hundred thousand dollars ($500,000.00) for
the public's benefit to be used towards the acquisition or development of the fire station proposed to
be constructed on the FDG Property or similar public project in the area. This Public Benefit is
conferred contingent on the occurrence of the Closing but not based on any other contingency and is
not to be offset against any municipal fee, charge, assessment, imposition or levy which is imposed
by operation of law.
11. Conditions Precedent to Closing.
11.1 Conditions to AAF's and FDG's Closing. AAF's and FDG's obligation to close this
transaction shall be contingent upon the City's full performance of all of their obligations under this
Agreement and AAF's and FDG's receipt of reasonably acceptable evidence of the continuing
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accuracy of all of the representations and warranties or covenants of the City as set forth herein and
completion of the Plat Process.
11.2 Conditions to City's Closing, The City's obligation to close this transaction shall be
contingent upon AAF's and FDG's full performance of all of their obligations under this
Agreement, the City and FDG shall have filed and processed a rezoning application (and any
land use change) needed to allow for a portion of the FDG Property to be zoned CS for park
space, and the City's receipt of reasonably acceptable evidence of the continuing accuracy of all of
the representations and warranties or covenants of AAF and FDG as set forth herein. There will be
no "net loss" of existing public park land as set forth in Policy PR -2.1.1 of the Miami
Comprehensive Neighborhood Plan.
12. Brokerage Commission. Each Party represents and warrants to the other Parties that it has
not dealt with a broker, salesman, agent, or other person in connection with the transactions
contemplated by this Agreement, including the exchange of the City Property for the FDG Property.
The foregoing warranties and covenants will survive delivery of the deed or termination of this
Agreement, as applicable.
13. AAF's Representations and Warranties. AAF hereby represents and warrants that as of
the date hereof:
13.1 AAF is organized and in good standing under the laws of the State of Delaware.
13.2 AAF has the fall right, power and authority to enter into this Agreement and AAF
has the full right, power and authority to carry out its obligations hereunder and the execution and
delivery of, and the performance of all obligations under this Agreement by AAF does not and will
not require any consent or approval of any person or entity other than AAF.
13.3 There are no actions, suits or proceedings pending or to the knowledge of AAF
threatened against or affecting AAF that would impede or otherwise impair its ability to perform its
obligations under this Agreement.
13.4 The representations and warranties contained in this Agreement shall be true and
correct as of the Closing Date in all material respects and AAF shall, at Closing, execute a
certificate to such effect. The representations and warranties set forth herein shall survive Closing.
14. FDG's Representations and Warranties. FDG hereby represents and warrants that as of
the date hereof
14.1 FDG is organized and in good standing under the laws of the State of Delaware.
14.2 FDG has the full right, power and authority to exchange the FDG Property for the
City Property as provided in this Agreement and FDG has the full right, power and authority to
carry out its obligations hereunder and the execution and delivery of, and the performance of all
obligations under this Agreement by FDG does not and will not require any consent or approval of
any person or entity other than FDG.
14.3 There are no actions, suits or proceedings pending or to the knowledge of FDG
threatened against or affecting FDG or the FDG Property that would impede or otherwise impair its
ability to perform its obligations under this Agreement.
14.4 The representations and warranties contained in this Agreement shall be true and
correct as of the Closing Date in all material respects and FDG shall, at Closing, execute a
certificate to such effect. The representations and warranties set forth herein shall survive Closing.
15. City's Representations and Warranties. The City hereby represents and warrants that as
of the date hereof -
15.1 The City has the full right, power and authority to exchange the FDG Property for
the City Property as provided in this Agreement and the City has the full right, power and authority
to carry out its obligations hereunder and the execution and delivery of, and the performance of all
obligations under this Agreement by the City does not and will not require any consent or approval
of any person or entity other than the City.
15.2 There are no actions, suits or proceedings pending or to the knowledge of the City
threatened against or affecting the City or the City Property that would impede or otherwise impair
its ability to perform its obligations under this Agreement.
15.3 The representations and warranties contained in this Agreement shall be true and
correct as of the Initial Closing Date or Closing Date, as applicable, in all material respects and the
City shall, at Initial Closing Date or Closing Date, as applicable, execute a certificate to such effect.
The representations and warranties set forth herein shall survive Closing.
16. Closing. With respect to City Property North and the Crossing Easement Agreement, the
consummation of that portion of the transaction contemplated hereby (the "Initial Closing") shall
take place within thirty (30) days of the Effective Date (the "Initial Closing Date"). The
consummation of the transaction contemplated hereby for the exchange of the City Property South
for the FDG Property (the "Closing") shall take place on the earlier of fifteen (15) days after the
New Roadway is completed and open for traffic or March 1, 2017 (the "Closing Date"). If the
Initial Closing takes place, but the Closing does not take place on or before December 31, 2018, as
may be extended by the parties (the "Deadline"), AAF shall pay the City, within five (5) business
days, the fair market value of the City Property North and the Crossing Easement Agreement as
consideration for the City Property North and the Crossing Easement Agreement, which shall be
determined by an appraisal process as prescribed by City of Miami City Code.
17. Deliveries at the Exchange Closing. If this Agreement has not been terminated by a Party,
on or before Initial Closing or the Closing, as applicable, the Parties shall deliver to the Escrow
Agent or the other Party the following items and documents:
17.1 At the Initial Closing, the City shall deliver the following:
(a) A recordable special warranty deed for the City Property North (the "City
Property North Deed") sufficient to permit the Title Insurer to insure title in AAF as provided for in
Section 8.2 above, subject only to the applicable City Property Permitted Encumbrances.
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(b) The City shall deliver an affidavit in form reasonably satisfactory to AAF and
the Title Insurer, evidencing that there have been no improvements or repairs made to the City
Property North within ninety (90) days preceding the Initial Closing Date, except as otherwise
disclosed to AAF and Title Insurer in writing, and sufficient in form and content to cause the Title
Insurer to eliminate any exception for mechanics liens from the title policy. Such affidavit shall
also evidence that the City is in sole possession of the City Property North, and shall contain a
certification that the City is not a foreign person for purposes of Section 1445, Internal Revenue
Code and such other certifications as may be sufficient for the Title Insurer to insure the "gap" at
the Initial Closing.
(c) The City shall deliver possession of the City Property North to AAF.
(d) The City shall deliver a recordable Crossing Easement Agreement sufficient
to permit the Title Insurer to insure title in AAF as provided for in Section 8.2 above, subject only
to the applicable City Property Permitted Encumbrances.
(e) Any and all other documentation as may be reasonably required to
consummate the transactions contemplated in this Agreement for the Initial Closing.
17.2 At the Closing, the following shall be delivered:
(a) The City shall deliver a recordable special warranty deed (the "City
Exchange Deed") sufficient to permit the Title Insurer to insure title in FDG as provided for in
Section 8.2 above, subject only to the City Property Pernlitted Encumbrances.
(b) FDG shall deliver a recordable special warranty deed (the "FDG Exchange
Deed") sufficient to permit the Title Insurer to insure title in the City as provided for in Section 9.2
above, subject only to the FDG Property Permitted Encumbrances.
(c) The City shall deliver an affidavit in form reasonably satisfactory to FDG and
the Title Insurer, evidencing that there have been no improvements or repairs made to the City
Property South within ninety (90) days preceding the Closing Date, except as otherwise disclosed to
FDG and Title Insurer in writing, and sufficient in form and content to cause the Title Insurer to
eliminate any exception for mechanics liens from the title policy. Such affidavit shall also evidence
that the City is in sole possession of the City Property South, and shall contain a certification that
the City is not a foreign person for purposes of Section 1445, Internal Revenue Code and such other
certifications as may be sufficient for the Title Insurer to insure the "gap" at Closing.
(d) FDG shall deliver an affidavit in form reasonably satisfactory to the City and
the Title Insurer, evidencing that there have been no improvements or repairs made to the FDG
Property within ninety (90) days preceding the Closing Date, except as otherwise disclosed to the
City and Title Insurer in writing, and sufficient in form and content to cause the Title Insurer to
eliminate any exception for mechanics liens from the title policy. Such affidavit shall also evidence
that FDG is in sole possession of the FDG Property, and shall contain a certification that FDG is not
a foreign person for purposes of Section 1445, Internal Revenue Code and such other certifications
as may be sufficient for the Title Insurer to insure the "gap" at Closing.
(e) The City shall deliver possession of the City Property to FDG at Closing and
FDG shall deliver possession of the FDG Property to the City at Closing.
(f) Any and all other documentation as may be reasonably required to
consummate the transactions contemplated in this Agreement, All documents to be delivered by the
City shall be signed by the City Manager and shall be in a legal form acceptable to the City
Attorney.
18. Closing Costs, With respect to the transactions contemplated herein, AAF shall pay for (i)
recording fees and documentary stamps with respect to the City Property North Deed and the
Crossing Easement Agreement; (ii) Owner's title insurance policy premium and related title search
and commitment fees with respect to its acquisition of the City Property North and the Crossing
Easement Agreement; (iii) the Survey of City Property North and the Existing Roadway and
surveyor certifications, if any; (iv) all costs of AAF's inspections hereunder; (v) AAF's attorney's
fees; and (vi) all costs of financing for AAF's purchase of the City Property North, if any. FDG
shall pay for (i) recording fees and documentary stamps for the conveyance of the City Exchange
Deed; (ii) Owner's title insurance policy premium and related title search and commitment fees with
respect to its acquisition of the City Property South; (iii) the Survey of City Property South and
surveyor certifications, if any; (iv) all costs of FDG's inspections hereunder; (v) FDG's attorney's
fees; (vi) all costs of financing for FDG's purchase of the City Property South, if any, (vii)
recording fees and documentary stamps with respect to the FDG Exchange Deed, (viii) Owner's title
insurance policy premium and related title search and commitment fees with respect to the City's
acquisition of the FDG Property; and (ix) the Survey of FDG Property. The City shall pay for (i) all
costs of the City's inspections hereunder and (ii) the City's attorney's fees. All parties acknowledge
that the City is exempt from paying documentary stamps tax, Taxes and other customarily
apportioned items shall be prorated or apportioned as of Closing and in accordance with§ 196,295,
Florida Statutes (2014). If the Tax Collector will not accept payment of taxes prior to its due date,
the Escrow Agent shall hold the estimated taxes for the current year in its trust account and shall be
obligated to pay the taxes as soon as payment can be made. FDG is responsible for paying all prior
and current taxes through the date of closing and agrees to indemnify and hold the City harmless for
any and all outstanding real property taxes owed on the FDG Property. This indemnity shall survive
closing,
19. Notices, Any notice, demand, consent, authorization, request, approval or other
communication that any party is required, or may desire, to give to or make upon the other party
pursuant to this Agreement ("Notice") shall be effective and valid only if in writing, signed by the
party giving Notice and delivered personally to the other parties or sent by (i) overnight courier or
delivery service (e.g., Federal Express); or (ii) certified mail of the United States Postal Service,
postage prepaid and return receipt requested, addressed to the other party as follows (or to such
other place as any party may by notice to the others specify):
To AAF: All Aboard Florida - Operations LLC
2855 S. LeJeune Road, 01 Floor
Coral Gables, Florida 33134
Attention: Brian Kronberg
Email: brian,lcronberg@allaboardflorida,com
With a copy to: Florida East Coast Industries, LLC
11
2855 S, LeJeune Road, 4th Floor
Coral Gables, Florida 33134
Attention: Kolleen Cobb
Email: kolleen.cobb@feci.com
To AAF: FDG Rail Holdings 25 LLC
2855 S. LeJeune Road, 4th Floor
Coral Gables, Florida 33134
Attention: Brian Kronberg
Email: briar.kronberanallaboardflorida.com
With a copy to: Florida East Coast Industries, LLC
2855 S. LeJeune Road, 4tl' Floor
Coral Gables, Florida 33134
Attention: Kolleen Cobb
Email: kolleen,cobb@feci.com
To the City: Daniel J. Alfonso
City Manager
City of Miami
444 SW 2"' Ave, 10th Floor
Miami, Florida 33130
With a copy to: Victoria Mendez
City Attorney
City of Miami
444 SW 2°d Ave, 9th Floor
Miami, Florida 33130
To Escrow Agent: First American Title Insurance Company
Southeast Financial Center
200 South Biscayne Boulevard, Suite 2930
Miami, FL 33131
Attention: Keren Marti
Notice shall be deemed given when received, except that if delivery is not accepted, Notice
shall be deemed given on the date of such li
i
Agreement as being in full force and effect with a right to an action for specific performance. AAF
and/or FDG jointly and severally waive all other remedies that may be available to it at law or
equity for breaches occurring prior to Closing. Each party shall bear their own attorney's fees.
21. Escrow.
(a) Duties. By joining in the execution of this Agreement, Escrow Agent agrees to
comply with the terms hereof insofar as they apply to Escrow Agent. Upon receipt, Escrow Agent
will hold the documents and funds delivered to Escrow Agent pursuant to this Agreement in trust, to
be disposed of in accordance with the provisions of this Agreement.
(b) Indemnity. Escrow Agent will not be liable to either party except for claims
resulting from the gross negligence or willful misconduct of Escrow Agent. If the escrow is
involved in any controversy or litigation, the parties hereto will jointly and severally indemnify and
hold Escrow Agent free and harmless from and against any and all loss, cost, damage, liability or
expense, including costs of reasonable attorneys' fees to which Escrow Agent may be put or which
may incur by reason of or in connection with such controversy or litigation, except to the extent it is
finally determined that such controversy or litigation resulted from Escrow Agent's gross
negligence or willful misconduct. If the indemnity amounts payable hereunder results from the
fault of AAF, FDG or the City (or their respective agents), the party at fault will pay, and hold the
other party harmless against, such amounts.
(c) Withdrawal. No party will have the right to withdraw any monies or documents
deposited by it with Escrow Agent prior to the Closing or termination of this Agreement except in
accordance with the terms of this Agreement. Escrow Agent will not be responsible for any delay
in the electronic wire transfer of funds.
(d) Disbursement. In the event of any disagreement between the parties hereto resulting
in conflicting instructions to, or adverse claims or demands upon the Escrow Agreement, or if a
written objection is filed with Escrow Agent, or Escrow Agent otherwise is in doubt as to its duties,
Escrow Agent may continue to hold the funds or documents in escrow until the matter is resolved
either by joint written direction from the parties or by the Circuit Court having jurisdiction of the
dispute or the Escrow Agent may interplead the same in the Circuit Court and be relieved of any
and all liability therefor. In any action or proceeding regarding this Agreement brought by Escrow
Agent or to which Escrow Agent is made a party, Escrow Agent will be entitled to recover its
reasonable costs and attorneys' fees through appeal.
22. State Required Disclosure. The following disclosure is required to be made by the laws of
the State of Florida:
RADON GAS: Radon is a naturally occurring radioactive gas that, when it has accumulated
in a building in sufficient quantities, may present health risks to persons who are exposed to it over
time. Levels of radon that exceed federal and state guidelines have been found in buildings in
Florida. Additional infonnation regarding radon and radon testing may be obtained from your
county public health unit.
13
23. Governing Law. The parties hereto expressly agree that the terms and conditions hereof,
and the subsequent performance hereunder, shall be construed and controlled in accordance with the
laws of the State of Florida.
24. Entire Agreement. This Agreement contains the entire Agreement between the parties
hereto and no statement or representation of the respective parties hereto, their agents or employees,
made outside of this Agreement, and not contained herein, shall form any part hereof or be binding
upon the other party hereto. This Agreement shall not be changed or modified except by written
instrument signed by the parties hereto.
25. Further Assurances. Each party hereto shall, from time to time, execute and deliver such
further instruments as the other party or its counsel may reasonably request to effectuate the intent
of this Agreement.
26. Captions. Captions used in this Agreement are for convenience of reference only and shall
not affect the construction of any provision of this Agreement. Whenever used, the singular shall
include the plural, the plural shall include the singular, and the neuter gender shall include all
genders.
27. Assignment, Neither Party may assign its interest in this Agreement without the prior
written consent of the other Party, which consent may be granted or withheld in such Party's sole
and absolute discretion; provided however, AAF or FDG may assign its interest in this Agreement
to an majority owned affiliate, defined as an affiliate that has the same indirect parent company, or
one that shares at least 75% of the corporate make-up, without the prior written consent of the City
so long as the City receives an executed assignment and assumption of this Agreement in form
reasonably acceptable to the City at least five (5) business days prior to Closing.
28. Time is of the Essence. Time is of the essence of this Agreement. If any date referenced
herein falls on a Saturday, Sunday or legal holiday, then such date automatically is extended to the
next business day.
29. No Recording. Neither party may record this Agreement or any memorandum thereof.
30. Governing Law., Venue. This Agreement shall be governed by, interpreted under, and
construed and enforced in accordance with the laws of State of Florida. The Parties hereby
irrevocably submit generally and unconditionally for itself and in respect of its property to the
jurisdiction of any state court or any United States federal court sitting in Miami-Dade County,
Florida.
31. Waiver of Jury Trial. The Parties hereby knowingly and unconditionally, with advice of
counsel, waive any and all right to demand a jury trial in any action for the interpretation or
enforcement of this Agreement.
14
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the dates
written below their respective names.
Signed, sealed and delivered
in the presence of:
Witnesses as to G
jtg� I CA WA
Signed, sealed and delivered
in the presence of:
-51" nog e�
TILL
Witnesses as to AAF
UN ca � IVaQ,-�,
FDG:
FDG Rail Holdings 25 LLC, a Delaware
limited 1' bihty company
By:
K 11 en Cobb, Vice President
Date:
AAF:
All Aboard Florida - Operations LLC, a
Delaware 1'mited liability company
By:
Koll n Cobb, Vice President
Date: 10.1-1-15
[Signatures continue on next page]
15
AGREED TO AND ACCEPTED
Executed by CITY OF MIAMI, a municipal
corporation of the State of Florida
By:
Date:
ATTEST:
Daniel J. Alfonso, City Manager
16
e
CE
JOINDER
Escrow Agent hereby joins in this Agreement for the sole and exclusive purpose of evidencing its
agreement to the provisions of Sections 8.2, 9.2, 17, 18 and 21 hereof.
ESCROW AGENT:
First American Title Insurance Company
By:
Print Name:
As its:
17
EXHIBIT A
DESCRIPTION OF CITY PROPERTY SOUTH
mit: At
EXHIBIT B
DESCRIPTION OF CITY PROPERTY NORTH
(TRACTS F&G WITH RESERVATION OF AIR RIGHTS OVER 100 FEE
NW 8TH ST
•r�
M
z
EXHIBIT C
DESCRIPTION OF FDG PROPERTY
a
i
FDG Property
,.
ad
15 q 10 AAW._
EXHIBIT D
EXISTING ROADWAY
Nw Oth IST
Existing Roadway
EXHIBIT E
NEW ROADWAY
:.....t..............,.............................
New Road
EXHIBIT F
CITY ROW VACATION
ROW Vacation
Incorrect "Amended Agreement"
Inadvertently Scanned Into Legistar.
Development Agreement CoQ
Final Dram 10/29/15
DEVELOPMENT AGREEMENT BETWEEN CITY OF
MIAMI, FLORIDA AND CG MIAMI RIVER OWNER, LLC,
REGARDING APPROVAL. OF THE MIAMI 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 "Develop 'and "Owner")
and the City of Miami, Florida, a municipal corporation and a political sub vision of the State
of Florida (the "City") (the Developer and the City are together referred to the "Parties").
WITNESSETH _
WHEREAS, the Developer is the fee simp; `it approximately 6.2 acres of
property in Miami -Dade County, Florida, show Lown
egally4 ed in Exhibit "A", located
between SW 7th Street on the south, the Mi on the orth,` 2nd Avenue on the east,
and SW 3rd Avenue on the west, within the CCI: e "Pro y"); an
WHEREAS, the Property is designated ial of Miami -and • and Restricted
Commercial on the Future Lan e Map, wi rban Central Mess District
("UCBD") and the Little Havana _ al D zsity ease Area according to the Miami
Comprehensive Neighborhood Plan._sive Plan own in Exhibit `B"; and
WHEREAS, th arty is inn - ted bye oastal ` ':. h Hazard Area along the
Miami River; and
WHEREAS, ropert zoned aterfront Industrial and T6 -36B-0 Urban
Core, according to the 21 : y Code ("mini 21"), shown in Exhibit "C"; and
in that it--consists--of vacant and
lots;
WHEREAS, the role*r>ty is d in an Empowerment Zone for which the City
envisions redevelopme t thr ��11 community-based partnerships to encourage economic
revitalization and sunt nable c , g unity development; and
WHEREA1 uiIrent status of the Property is inconsistent with the City's vision to
develop a world ass do -town, and wishes to encourage development of the Property; and
W H El AS, the City and the Developer wish to redevelop the Property as a high
density, mi ed use, pedestrian oriented urban development providing much needed retail uses
and ame ' ies for the urban center; and
HEREAS, a process exists within Miami 21 which allows parcels of more than nine
(9) utting acres to be master planned to allow greater integration of public improvements and
in structure, and greater flexibility so as to result in higher or specialized quality building and
s eetscape design; and
#550255.doc
Development Agreement
Final Draft 10/29/15
WHEREAS, the result of this plaster planning process is known as a "Special ea Plan"
("SAP"); and
WHEREAS, the City is the fee simple owner of approximately ur (4) acres of
property (collectively, the "City -owned Property") in Miarni-Dade Count , Florida, shown in
Exhibit "D", adjacent to the Property and located along the Miami Rive , within the City, and
said City -owned Property includes certain City park areas and rights -o -way, and abuts certain
submerged lands owned by the State of Florida ("State") through th Board of Trustees of the
Internal Improvement Fund ("State Submerged Lands") also s V, n* Exhibit "D;" and
WHEREAS, on April 30, 2015, the Developer fit _ application with the City for
approval of the Miami River SAP with a total of a . roxii ' :Oy 10.2 acres of land shown in
Exhibit "E," including certain portions of thewi d't Aerty and the abutting State
Submerged Lands, shown in Exhibit D (collecvely, " AP Ap ,Tzcation Area"), in order to
redevelop the Property as a mixed use deve nlent th residential and lodging units, retail,
restaurants, working waterfront uses, office, Ah amenities, includi a public riverwalk
which will cross the City -owned Property and the fitting State Submerge ds (the "Miami
River SAP" or the "Project"); and Y
WHEREAS, the City serves M ant for approval of the Miami River SAP; and
WHEREAS the River S loca is `.' : _the Mia "::River will allow for use and
enjoyment of the Miami,,_ resi d the gdneral public as well; and
WHEREAS, 'the Miami SAP eate certain recurring fiscal benefits for the
City's tax base as well s uch needed tempor d permanent jobs; and
REAS; City =' the Developer wish for the development of the Project to
proce stantially 1 r , ith the "Miami River SAP Regulating Plan" and "Design
Guidel' ttached as Ex ' °t "F' , d
WHE ` = , the ity the De oper wish for development of the Miami River SAP
to proceed iin a er hich onsistent with the Comprehensive Plan, Miami 21, the City
Charter, the Miami :F . r Gre _ ay Action Plan, and the Miami River Corridor Urban Infill
Plan; and
WHERE S, the lacT of certainty in the approval of development can result in a waste
of economic an land resources, discourage sound capital improvement planning and financing,
escalate the c st of housing and development, and discourage commitment to comprehensive
planning; an
WEREAS, as a condition to the approval of the Miami River SAP, the Developer
must ent r into a Development Agreement pursuant to Section 3.9.1.f. of Miami 21; and
WHEREAS, assurance to a developer that it may proceed in accordance with existing
An
Development Ag
Fu1a1 Draft 1
laws and policies, subject to the conditions of the Development Agreement, streng ns the
public planning process, encourages sound capital improvement planning and finane' g, assists
in assuring there are adequate capital facilities for the development, encour es private
participation in comprehensive planning, and reduces the economic cost of devel went; and
WHEREAS, the City Commission pursuant to Ordinance _ ado d on October 22,
2015 has authorized the City Manager to execute this Agreement upon the erns and conditions
as set forth below, and the Developer has been duly authorized to execu this Agreement upon
the terms and conditions set forth below; and
NOW THEREFORE, in consideration of the
hereby understood and agreed:
Section L. Consideration. The 1
obligations recited and provided for under this
parties and thus adequate consideration for thi
Section 2. Rules of
otherwise expressly provided:
(a) A defined term has the
(b) Words iii. the sing
(f)
shall have
M
N550255,doc
snants contained herein, it is
hat the consideration and
bstantial benefits to both
ses of ze`Agreement, unless
kplural include the singular;
47'inclus`an'applies Wther genders as well;
E
"herein", n e
herein , hereof "hereto" and such similar terms shall
agreement in its entirety and not to individual sections or
The Parties `l T to agree that this Agreement shall not be more strictly construed
h ainst ei r e City or y the Developer, as all parties are drafters of this
g3rcemei , an
T
The r als are {i ue and correct and are incorporated into and made a part of this
Agreniei't. Pie attached exhibits shall be deemed adopted and incorporated into
the greenielt provided however, that this Agreement shall be deemed to control
e event of a conflict between the attachments and this Agreement.
(n 3. Definitions. Capitalized terms which are not specifically defined herein
meaning given in Miami 21.
" means this Development Agreement between the City and the
Development Agreement
Final Draft 10/29/15
"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 iami
Comprehensive Neighborhood Plan, ("MCNP") adopted by the City pu uant to
Chapter 163, Florida Statutes (2014), meeting the requirements Section
163.3177, Florida Statutes (2014); Section 163.3178, Florida Statut (2014) and
Section 163.3221(2), Florida Statutes (2014), which are in e ect as of the
Effective Date of the Agreement. -
"County" means Miami -Dade County, a po
Florida.
of the State of
"Development" means the carrying out y buil gtvity, the making of
any material change in the use or ap ° ce of y stc or land, or the
dividing of land into three (3) or mor cels an such other a ities described
in Section 163.3221(4), Florida Statutes 4).Ak
"Development permit" inclMes_, any buil di • •Planningµ permit, subdivision
approval, rezoning, certification,,sl)ecial e eptio variance, or any other official
action of local government having the'- ffect of%k
tting the development of
land.
"Effective Date" iIH ; to of
this A%zreem t
"Existing Zonmg!' � is (a)
specifically including the N
and City Code of M" iaini
including Chaptexs'-•10, 13
through the Effet. ive D
developilient regulations, ;
Effective Date. f
"Land" me
includes any
21
("Code"),
22, 23, 3
dation the executed, original version of
Code, effective May 2010, as amended,
SAP; -and (b) the provisions of the Charter
which, regulate development, specifically
i;A 55 and 62 of the Code as amended
L together comprise the effective land
development of the Property as of the
water, and air, above, below, or on the surface and
or structures customarily regarded as land.
"Laws" me ns all ordinances, resolutions, regulations, comprehensive plans, land
developm t regulations, and rules adopted by a Local and State government
affecting;the development of land.
"Pu21isportation,
e Facilities" means major capital improvements, including, but not limited
to, sanitary sewers, solid waste, drainage, potable water,
edu/ational, parks and recreational, streets, parking and health systems and
Development Agreement
Final Draft 10/29/15
"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 thorize
the Developer to redevelop the SAP Application Area pursuant to the Miami Riv SAP, to
document certain improvements by the Developer to the City's adjacent park an ublic areas
and the Developer's utilization of such adjacent park and public areas to benefit e public, for
the City to authorize the Developer to access and to utilize certain portions the City -owned
Property for the riverwalk of the Development, and to document the relate approval of access
by the State to the State-owned Submerged Lands regarding th vet or the Development.
This Agreement will establish, as of the Effective Date, the , evelo vent regulations which
will govern the development of the Property, thereby p �g the eveloper with additional
certainty during the development process. This Agreeiner- es ne requirements of Section
3.9.1.£, Miami 21.
Section 5. Intent. The Developer' and the City ' nten :,'t is Agreement to be
construed and implemented so as to effectuate -the purpose the Miami''River SAP Regulating
Plan and Design Guidelines, this Development Agreemen tl - Comprehensive Plan, Miami 21,
the City Charter, the Code, and the_Florida Local 4' v nt Development Agreement Act,
Sections163.3220 - 163.3243, Florida Statutes (2014).
Section 6. Legal Description of band, 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 he,,iinproved gild utilized, by the Project to benefit the
public, and (c) the limited access' =and use Tor the river walk of the Project of the City -owned
Property Lands idem fic in Exhil7it "D' ; a zl tllc respective legal and equitable owners are the
City and the State.
Section 7.` Term o&iA re nt *Efave Date and Bindin2 Effect. This
Agreement -shall have a term of "arty 30) om the Effective Date and shall be recorded
in the public records of Maimi-D� County b the Developer and filed with the City Clerk.
The term is Agreemnn` s b extended by mutual consent of the Parties subject to public
hearing(s), p ant to Sectio .3225; Florida Statutes (2014). This Agreement shall become
effective on the f, tive Date shall constitute a covenant running with the land that shall be
binding upon, an i re 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 they °loi.ida Condominium Act, Chapter 718, Florida Statutes (2014), then
the association or other e designated to represent the condominium ownership interests as to
the Property, as may b applicable, shall be the proper party or parties to execute any such
release for properties i a condominium form of ownership.
Section 8. Site Plan. The Property will be developed and used substantially in
compliance /and
compilation of plans, including, specifically, architectural plans entitled
"Miami Rivprepared by Kobi Karp Architecture and Interior Design, Inc., and the
landscape plprepared by Kimley Hom and Associates, Inc. and Raymond Jungles
Landscape Atture. All the foregoing plans are collectively referred to in this Agreement as
the "Project"e described in detail by plans on file with the City Clerk and are deemed to
#550255.doc
Development Agreement
Final Draft 10/29/15
be incorporated by reference. "Substantially in compliance," for purposes of this Agrees ,it,
shall be deternzined by the City Planning and Zoning Director, pursuant to Section 7.1 .5 of
Miami 21.
Section 9. Zoning, Permitted Development Uses and Building I ensities. The
City has designated the SAP Application Areas "Miami River SAP" on the off, al Zoning Atlas
of the City, pursuant to the applicable procedures in Miami 21. The operty is zoned
T6 -36B-0 and D3 pursuant to Miami 21 and located within the Mia , River Residential
Density Increase Area permitting up to 400 units per acre. As part f the SAP process, the
underlying land use and zoning designation will not e c nged, although minor
modifications to the T6-3613-0 and D3 regulations are '` - "rpo ted into the Miami River
Regulating Plan and Design Guidelines. In accorda,zc; h e underlying land use and
zoning regulations, there can be no residential WWSAP
ty o the portions of the Property
designated CS or D3. In approving the Miami e.,.City has determined that the
uses, intensities, and densities of development-. -1 fitted ere are consistent with the
Comprehensive Plan and the Zoning. Signage d4d7 devia ' ns to the regulations in the Code are
articulated further in the Regulating Plan; signage sh be approved in, accordance with the
Regulating Plan and Article 10 of Miami 21.,
Area shall proceed pursuant to the
The criteria to be used in determi
consistency with the Comprehensi
The Comprehensive PWi "this Aggr
of the SAP Applictiori Arca for
Project plans or this Agreement `s
Regulating Plan and Design Guide
Date may be applied to the`SAP A7
163.3233(2), Florida Statutes (201;
DevelfipCyand at a publ,
prohibit'1 n down zon,
Developer r Florida
subsequently ted ch
principles inclu but
rights which may a
o n
4Fu e pment within the SAP Application
,airi� SAP e ting Plan and Design Guidelines.
in = e r fbture deve hent shall be approved is: (a)
e Pl ) this Agreement,_ (c), and the Miami River SAP.
ement,' _nd the Miami Ryer SAP shall govern development
:1 d ration of ,the Agre rnent. Any modifications to the
all e appro:red in accordance with the Miami River SAP
n . The City's -laws and policies adopted after the Effective
plication Area only if the determinations required by Section
►, have beon made'after thirty (30) days written notice to the
_ suant to""Section 163,3245(3), Florida Statutes (2014), this
s rather than supplants, any rights that may vest to the
,1 As a result, the Developer may challenge any
land evelopment regulations based on (a) conunon law
d to, equitable estoppel and vested rights, or (b) statutory
Chapter 70, Florida Statutes (2014).
Section 11. tuRlWenefits. The Project consists of five (5) phases of development
on the Property. Fur (4) of the phases will utilize the City's Public Benefit Program for
additional height a permitted under Miami 21 ("Benefit Height"). Phases 1 and 3, will contain
approximately tl e hundred twelve thousand four hundred (312,400) square feet of Benefit
Height each; Ph se 4 will contain approximately two hundred forty-two thousand, four hundred
square feet of enefit Height (242,400); and Phase 5 will contain approximately three hundred
forty thousan eight hundred (340,800) square feet of Benefit Height. The fee per square foot of
Benefit Hei t is seventeen dollars and eighty two cents ($17.82). After February 1, 2019, the
Public Bei fit fee per square foot shall be increased, and compounded annually, pursuant to the
Consume Price Index ("CPI") to a maximum of 2.75% per year. Accordingly, the total
Development Agreement
Final Draft 10/21/15
estimated Public Benefits contribution to the City will be approximately twenty one millio five
hundred twenty six thousand five hundred and sixty dollars ($21,526,560). The exact ai aunt of
the Public Benefits contribution shall be calculated prior to the issuance of the fit vertical
building permit for each of the Phases 1, 3, 4 and 5 and shall be due concunt with the
construction of each respective phase, unless otherwise noted in the Agreement, he City shall
confirm that funds equivalent to the calculated Public Benefits contribution quired for each
phase have been or have been caused to be made on the project(s) listed ' the SAP's Public
Benefit Program and Phasing Schedule, and that such project(s) ai contribution(s) are
substantially complete prior to the City's issuance of the first Certifica of Occupancy for the
phase. The Director of Planning and Zoning has the authority .- hift o'ects and funds between
phases or as approved by the respective permitting agenci :lo as funds equivalent to the
calculated Public Benefits contribution prorated for each se ave been made prior to the
temporary and/or permanent Certificate of Occu onded and approved by the
Department of Public Works. Following ten (10) ye r om t f ective Date, in the event that
the Project and/or Public Benefits Program hav been mp :b ythe Director of Planning
and Zoning has the authority to abandon the Bene s Progr=described in Exhibit "G"
am
and require the Developer to tender direct PuU . enefit ontxibution p " nts to the City.
(a) Affordable Housing Trust Fund., The el all tender dir ayment to the
City of Miami Affordable �usilg Trust F ecifically, the Deve per shall tender
payment of not less than fourteen milli n dol. $14,000,000) into the Affordable
Housing Trust Fund with said"' funds to-'' e earmar or the East Little Havana Area,
generally bounded f r purposes of.,tis Agreement, wi ' , e boundaries of SW 8 Street
to the South, SVS` nue to t1i est, the IVliani.. Rive . o the North, and I-95 to the
East. By no later tha ruary date by which the Developer
anticipates to submit a fu l et of onstiictlon drawingfor any one of the four towers in
the Project, the Developer `will pay one million dollars ($1,000,000) of the fourteen
million -dollars ($14;000,000) i7ito; the Affofdable Housing Trust Fund. The Developer
will pay another one mill' `n dollars. ($1,00,000) of the fourteen million dollars
�: .
($14,000,000) into --the Af idable ittWng Trust Fund upon receiving permits for the
plans that were su'itte by -February 1, 2016. The balance of the fourteen million
($14 ,000) Affo U' Housing Trust Fund contribution shall be made prior to the
issuai a tempor perniane nt certificate of occupancy for Phase 3, Phase 4, and
Phase 4, ctively a vided in Section 11 above.
(b) City of ROW IMv. The Developer shall tender direct payment to the City of
Miami Transpor a rust Fund of one and half million dollars ($1,500,000) into a
special revenu fun armarked for the Little Havana City Trolley route to be paid to the
City prior to temporary Certificate of Occupancy for Phase 3.
c Jose Marti Parlc and Public Ri lits-of-Wa . The Developer shall provide design,
pexinnit d construct certain public improvements within the Miami River SAP area,
particul ly in Jose Marti Park, public rights-of-way, and other such improvements
authoryzed by the City administration according to the SAP's Public Benefit Program and
Phas' g Schedule attached hereto as Exhibit "G." The Project plans are conceptual in
natqte and do not constitute complete architectural and engineering drawings; further
Development Agreement
Hial Draft 10/29/15
development, pursuant to the conceptual plans, is necessary. The City shall work th
the Developer to allocate the Developer's proven paid park impact fees to devel9P the
Project consistent with the intent of the Plans for Jose Marti Park and theCit -owned
Property that are not included in Exhibit "G".
(d) Paramedic Station. In addition, the Developer shall deliver to the C of Miami an
approximately eight thousand five hundred (8,500) square foot shell u t to be used as a
paramedic station in the basement level of the Phase 5 tower wit direct ingress and
egress via a ramp to SW 7 Street ("Paramedic Station"), The Par edic Station shall be
delivered prior to the issuance of the first Temporary Ce 'ficate f Occupancy (TCO) for
the residential portion of Phase 3. The City and the D ope shall enter into a lease for
the Paramedic Station. This lease shall provide for Ion -term ninety-nine (99) year
lease of the Paramedic Station for one dollar ($1) wpe year, without common area
maintenance, condominium assessments,fees; ' levie , --charges, similar impositions
("Condominium Assessments") or ad valortaxes the;Paramedic Station portion of
the Property. The City and Developer shall execut a Memorandum of Lease reflecting
the foregoing terms, which shall be ,ecorded ' the Public Records of Miami -Dade
County at the Developer's expense. At the De v oper's option, the Developer may elect
to transfer ownership in fee nple or condo iniuinfonn of ownersliij? to the City of
Miami. Any condoininiui of owne hip shall affirm by lease -0- r other written
instrument to be recorded M ar nedic . Station shall not be subject to the
Condominium Assessments b r < X11 work ' the Developer to allocate the
Developer's proven paid fire impact fe s o c�� lop t1 arainedic Station portion of the
Project and the purchase', of fire equip crit c� . s t:4wA ibis Agreement.
(e) Worldn� .Waterfront. 7;e portin n of the Property currently zoned D3, and
designated as Vidustrial ori the's Future Land Use Atlas, shall maintain recreational
and-,colninercial Working fr'o, t uses, i luding office, commercial, restaurants and
lodgi1,lg. Therefore, t - ev loper O shall not object or otherwise attempt to impede
any legally pern`uxtted wo g waterfrot,24-hour operations; (b) shall provide all future
tenants and prospective owners of the Property notice of the existing working
waterfront 24-hour`op'e tiffs and will include a provision to agree not to object to
legally, permitted W--- 1sing wterfront 24-hour operations in each lease; (c)
acknowledges that it s'solely the Developer's responsibility to design its structures to
acconunodate legal permitted working waterfront 24-hour operations; and (d) will not
pursue any claims of liability, loss or damage, whether through litigation or otherwise,
against permittees engaging in working waterfront 24-hour operations, related to
damage to O ier's' structures, noise, smoke, fumes, bridge closures, and/or other
quality of life issues that might result from legally permitted working waterfront 24-
hour operati ns. A Declaration of Restrictions satisfying Policy PA -3.1.9 of the
Comprehe ive Plan for the Property is attached as Exhibit "H".
Public Riverwalk. The Developer, at its sole cost and expense, agrees to
develop/ the public riverwalk substantially in compliance with the Miami River
Green ay Action Plan, Miami River Corridor Urban Infill Plan, Miami 21 and the
Proje t plans, between SW 2nd Avenue and along the City -owned Property at the ends
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Development Agreement
Final Draft 10/29/15
of the City's rights -of --way abutting the State-owned submerged lands adjacent to S
5th Street, and the western boundary of Jose Marti Park, SW 2nd Street the
"Riverwalk" ). The Riverwalk on Jose Marti Park shall be constructed, opei o the
public and maintained by the City prior to the issuance of the first Cert' icate of
Occupancy for Phase 1: The Riverwalk on the Property will be constru ted, open
to the public and maintained by the Developer prior to the issuane of the first
Certificate of Occupancy for Phase 2. Notwithstanding that Please 2 the Project is
not included in the SAP's Public Benefit Bonus Program, prior to tl issuance of the
temporary Certificate of Occupancy for Phase 1, the Developer sh record a Notice of
Commencement and commence construction of a public riverw c on Phase 2 of the
Property. --`
(LY) Job Creation and Emblovment Onuo`rtunties. e Developer shall consult
and coordinate with the City's CareerSource S=outh Fl(
Hopkins Technical Center at 750 -NW 20t1i.Street, 4th
Youth Co -Op, Inc. located at 5040 MW 7th Street,
and state economic development entities regardin
services to City residents seeking employinent oppoi
which will locate or establish businesses witlui he
use diligent, good faith e M.to achieve al toca
subcontractors (collectively, .the "Contracto ) tNO,
�
achieve, as applicable, the following aspirat nal
#550255.doc
rid- center located at the Lindsey
F or Miami, Florida 33127; the
to R,.Miami, Florida 33126;
job teaming and job placement
.unities with potential employers
'roject. The Developer agrees to
Gse its general contractor(s) and
e diligent, good faith efforts to
(a) for shall adhere to the ;lo hierarchy with respect to
go es and practices'within t `e . iami River SAP area:
(1) ' , Resici is of t e Ga who live within one (1) of the three (3) area
.zip c 30, 3M8 and 33135;
7
(2.. Residents of the.:C-ty who live within one (1) of the five (5) zip
codes" _ the high st poverty rate ("City Targeted Zip Codes");
(3)-kfi
xesdel s as described withal Section 14(a)(1) or (2) are
I
qed orcan be qualified within a reasonable amount of time,
Csidents who reside outside the City Targeted Zip Codes;
o 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.
Development Agreement
Final Draft 10/29/15
The Parties agree that individuals will be employed based on the/persons
chy
established in Section 14(a). For purposes of clarity, the intent of Secti) is
to encourage the Developer and the Contractor to hire as many quah
who reside in the City to work on the Project.
(b) The Contractor shall electronically post job opportunities ' established job
outreach websites and organizations, including, witho 1imitation, Youth
Co -Op, Inc., South Florida Workforce, Florida Dep Hent of Economic
Opportunity Career Source of South Florida Io ated in Miani, their
successors or assigns, and similar programs in rder to attract as many
eligible minority applicants for such Io °A epos le.
�T
(c) In connection with the work performed by he Developer, the Developer
shall cause the Contractor to ay a 'minii hourly wage rate of twelve
dollars and eighty three cen 2,83) if nea-: enefits are not provided to
employees and eleven s and y eig nts ($11.58) if health
benefits are provided t loyees. Commence _ anuary 1st, 2018 and
for the duration of the t (" PIEsealation `.e "), the foregoing
hourly rates shall be increas Ja y 1st of the icable calendar
year by an amount . ual to the e increase during the calendar year
immediately pre he, CPI sca Year in the consumer price index
("Index"), which 'R the mo_ „nly index 'ublished by the Bureau of Labor
Statistics of the United St a s Department of Labor as the Consumer Price
Index''for All Item mi -Ft" Lauderdale, -,,.,,Florida. Base Year 1982-
84-100 Th(,, CPI a tmeiit to the inininliuln hourly wage rates shall
hereinafter be -referred o: -d§ the "CPI Escalation". The CPT Escalation of
the minimun 11ourly age rates for the CPI Escalation Year shall be equal
- to the; mmi ilum ourly ',A, e rates in effect for the calendar year
f,, ip-,lledlately_ rec' mg the C Escalation Year multiplied by the CPI
e ' ntage-- (as fin0 .--_ow . The "CPI Percentage" shall equal the
frac $ (i) ` w „0se numerator equals the monthly Index published
imine' gly o the CPI Escalation Year (or the nearest reported
previous h) an'(ii) whose denonninator is the same monthly Index
published mediately prior to the calendar year that preceded the CPI
SIalatioi ar (or the nearest reported previous month). If the Index is
rconti_n s with no successor Index, the City shall select a commercially
leas i, " comparable index. The CPI adjustment set forth herein shall
not re' in a reduction of the respective minimum hourly wage rates.
(d) The eveloper shall require the Contractor to include the same minimum
ho ly wage rates in any contracts entered into by the Contractor with its
s contractors for the Project who will stipulate and agree that they will
ay the same minimum hourly wage rates, subject to adjustment, as set
Orth in this section.
(e) Local Workforce Participation during Construction. At least twenty-five
percent (25%) of those employed by the general contractor or
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Final Draft 10/29/15
subcontractor(s) for construction work shall be employed utilizing Xe
following priorities: first, residents of the following three (3) are zip
codes: 33130, 33128 and 33135; second, residents of the five (5) igliest
poverty rate index zip codes in the City; third, City residents i general;
fourth, County residents who live in the five (5)`highest povert rate index
zip codes in the County; and fifth, residents in th County in
general. Residents who live in qualifying areas must receiv preference for
hiring in the Project.
(f) Job Opportunity Advertisement. The De open must rovide ten (10) full-
page weekly advertisements in the D', e las ericas newspaper to
inform residents of job opportumt� s Fi' job £a' s prior to construction
commencement. This shall be ii1_ adtlitioil to ad ertisements done through
other job outreach websites, or ai izations, and fforts.
(g) Community Business E se ("CBE" Conanlanity Small Business
Enterprise ("CSBE"), an all Business nteipzise-("SBE").
(1) Seven and one half percent. ' ,7.5%) of the prosional services
age ei t, for soft costs i eluding, but not 1N-Ited to, design,
engineeA,urvey, ins ction, testing, and legal, shall be
awarde ertifie by the County as CBE, CSBE, and SBE
firms at th :time theeoi tact is signed.
(2) The Develov`:'shal award tin erc t (10%) of the contractual
agreements for 'c lsdiietion construction -related materials,
'
supplies and fixt des to firms certified by the County as CBE,
CSBE; and SBE aims at the time the contract is signed.
(h) Job Creatia Monito ig C tract. Within sixty (60) days prior to issuance
Of a Permit�or. vert' al imp the Developer will designate a firm
who s1iall b�. /CSBE/SBE certified whom will be designated to
monitor e ocal Workforce Participation, Job Opportunity
Advertis t, nd CBE/CSBE/SBE requirements.
(i) The City a d the Developer understand and agree that any uses or
provcrm sits by the Developer of public areas previously financed by the
City tyro gh tax-exempt bonds at Jose Marti Park areas and/or City -owned
streets,' dewalks, and rights of way areas shall require review by the City
Attorl y and the City's Bond Counsel regarding necessary ongoing
com iance with U.S. Department of the Treasury Internal Revenue Service
rule and regulations.
Section 12. Itonstruction of encroachments within the Public Ri ht-of-Wa . The
City fords that the en oachments proposed by the Developer do not unduly restrict the use of the
public right-of-way d are a necessary, essential element in the construction of the pedestrian
overpasses above e same rights-of-way. The adoption of this Agreement shall serve to satisfy
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the requirements set forth in Section 55-14(b) of the City Code. The City hereby a es to
expeditiously sign off on all pen -nits as owner of the City -owned Property that are e public
rights-of-way and Jose Marti Park, including but not limited to Public Works pe ' , bulldlead
permits, and State permits with respect to submerged lands as may be required t effectuate the
SAP and Project plans. The Developer represents to the City that it has, 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, tl City agrees to waive
any and all claims to payment of a user fee in connection with e construction of the
aforementioned encroachments within the public rights-of-way. F mer, this Agreement shall
satisfy the requirements of Section 55-14(d) of the City Code n oii
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Fhaa.1 Draft 10/29/15
21.
Section 14. Parkin $. The Developer intends to establish a uniform valet syst n to
service the Project. Notwithstanding the limitations set forth in Sections 35-305 of the ode, a
maximum of three (3) valet permits may be issued for the operation of a valet parkin ramp on
the same side of the block where the permit applicant is the operator of the form valet
system. Robotic parking within enclosed parking structures shall be permitted.
Section 15. Seawall. The Developer shall be responsible for ry repairs to the
seawall in compliance with the standards set forth by the Ann Corps'of gineers and the City
Code. The Developer shall increase the upland grade el e at% ` is to n ess than four and one
half feet 4.5' NAVD along the Riverwalk within the Pr and si eet 6.0' NAVD adjacent
to any mixed use parcel containing residential uses, 'ti n to development so as to
address the pertinent City and County goals, obj tines` and V fes related to Coastal High
Hazard Areas. The City hereby agrees to serve pplicant n . , = applicant, as required, and
expeditiously sign any permit applications re to effec to the repair and reconstruction of
the seawall, bulkhead and site grade elevate = _; The D eloper hereby agrees to obtain, as
necessary, all applicable .permissions or approv o e tate regarding. any repairs and
construction involving the State-owned submerg it addition, th' ` eveloper will
construct the bulkhead elevation offs to: s and on i : ' _ (6.5') where five acid one half feet
(5.5') is typically required, pursuant to- the vari ce ilfed on July 2, 2015 subject to the
conditions that the bulkhead transition;from th' end of the -proposed Riverwalk to the existing
walkway at the end of SW.3 Avenue in colnp ance with ADA slope regulations (Section 4.8.2,
CFR) and that the pro v ulkhead cap sl ✓ 1 be extended throug1l the transition area matching
the slope of the Riv •l wallcway,transi oii aid providing a six (6) inch vertical reveal.
Section 16. a it S ecial Center•, Desi nation. Pursuant to Chapter 4 of the
Code, the Miami River SAP is desi a Specialty Center".
Section 17. `Af6oholic -e era a le The Property is located within the D3 and
T6-3613=0 zoning transectsr�a d sign ted under Miami 21. Notwithstanding the requirements of
Section 4 3 Nf the Code, P 'ng and Zoning Advisory Board, and City Commission approval
shall not be required for b s (ilcludin averns, pubs, and lounges), nightclubs, and supper
clubs as principa_1 ses p posed to be located within the Miami River SAP Project. Said
establishments sha 4 uthoricea pursuant to the issuance of a Warrant (currently requires
Exception). The Plaiiil g &'Zoling Director shall consider the criteria set forth in Section
4-3.2.1 of the City C e'when evaluating such Warrant applications. There shall be a maximum
of ten (10) individ 1 alcohol beverage establishments permitted within the Miami River SAP
area.
Sectio 8. Environmental. The City finds that the Project will confer a significant
net improve'
ent upon the publicly accessible tree canopy in the area. The City and the
Developer ee that the Developer will comply with the intent and requirements of Chapter 17
of the Cit Code by performing tree replacement within the SAP Area where possible. Where
replacer nt within the SAP Area is not possible, the Developer shall perform tree replacement
within ose Marti Park. Where replacement within Jose Marti Park is not possible, the
Development Agreement
Final Draft 10/29/15
Developer shall perform the required tree replacement within one (1) mile of the SAP or witl
any other City park, subject to approval by the City. The City further agrees to facilitat le
permitting and planting of replacement trees on all publicly owned property within the a and
within City parks.
Section 19. Archaeological. Due to the Project's classification of Hig robability in
an Archaeological Conservation Area, the Developer shall obtain a "Certificat to Dig" prior to
any ground disturbing activities, pursuant to Chapter 23 of the City Code.
Section 20, Public Facilities. As of the Effective Pete, the eveloper shall conduct
an extensive analysis of the Public Facilities available to ser<rc tlxe Pr sect. In the event that the
Existing Zoning and/or the Comprehensive Plan req , _e _,tne veloper to provide Public
Facilities to address any deficiencies in required T.elsxo ervice occasioned by future
development within the SAP Application Area or as ar ult development of the Project,
the Developer shall provide such Public Facili s , e'onsist t wit 1 the timing requirements of
Sections 163.3180, Florida Statutes (2014), or Bothe ' e required vy Chapter 13 of the City
Code, as amended from time to time, if app lea e. T Developer shal'Lbe bound by the City
impact fees and assessments in existence as of t ctive Date of this Agreement.
this Development Agreement by they
(2) Declarations of Restrictive Coven
related to prior development approval
Declaration of Restrictive Vov ants is
the Public Records of Miami Da e>Coi
for a portion of the"project area;
Project area. The second_Declara
Book 24997 at Page 2543 : oftl'
along wi ezoA n applicati i f
diance 11000 Covenants. Upon approval of
dssion,`the ;`Planning Director shall release two
,,d,in the public records of Miami -Dade County
ions of the SAP Application Area. The first
at 'Offieial-Record Book 24194 at Page 1806 of
fs fff, along with a rezoning application
h the parcels in the middle section of the
ve Covenants is recorded at Official Record
Miami -Dade County, and was proffered
tl uthern section of the Project area.
`fie kion 22. Coin" Bance with Fire/Life Safety Laws. The Developer shall at all
times in - evelopim�"and, operation of the Project comply with all applicable laws,
ordinances an lati Zs ind ng life'safety codes to insure the safety of all Project and City
residents and Speci y and without limitation, the Developer will install and
construct all requir e safe - uipment and water lines with flow sufficient to contain all
possible fire occu n
Sectio 3. Local' Development Permits. The Project may require additional
permits or a rovals from the City, County, State, or Federal goveriument and any division
thereof. Su eet to required legal processes and approvals, the City shall make a good faith effort
to take all easonable steps to cooperate with and facilitate all such approvals, including acting
as an ap icant. Such approvals include, without limitation, the following approvals and permits
anal an 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
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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 g6veriunent agency
having the effect of permitting development of the Property.
In the event that the City substantially modifies -'d 9 land development regulations
regarding site plan approval procedures, authority to sa" 'V -an ite plan for a project in the
SAP Application Area shall be vested solely in the City Manag' with the recommendation of
the Planning and Zoning Director. Any such plan sI 1 approved if it meets the
ni
requirements and criteria of the Zoning, mprehe sive P1and the terms of this
Agreement.
Section 24. Consistent with Com Yel nsive''"Plan. TliNn"GKity finds that
development of the Miami River,, SAP is in co fo7mlty-with the Existin" oning and is
consistent with the Comprehensi% Plan. h the event, that the Existing Zoning or the
Comprehensive Plan requires the Dcvelo' to provide: ,additional Public Facilities to
accommodate the Project, the Development 'ill proyide such Public Facilities consistent with
the timing requirements 'of Section 163.3$0, Florida Statutes (2014). The Developer shall be
bound by the City, imlaaet fees'_ and as ssinents , in existence as of the date of obtaining a
building permit, pe kChaptcr 13 u the ode:
Section 25. Necessity o ' COrmvlving with Regulations Relative to Develo meat
Permits Tlepa es agree, tha the failure of this Agreement to address a particular permit,
condition,_ fee, to nse o restriction in effect oiz the Effective Date shall not relieve the
.
feet
Developer of the necessity of 'conn lying with the regulation governing said permitting
requirements, conditions, term nses, or restrictions.
Pursuecti n 1633241, Florida Statutes (2014), if state or federal laws are enacted
after the executeo this development agreement which are applicable to and preclude the
parties' compliant& `nth the terms of this development agreement, this Agreement shall be
modified or revok as is necessary to comply with the relevant state or federal laws.
Sectio 6. Coo eratiom Expedited Permitting and Time is of the Essence. The
Parties agree t cooperate with each other to the full extent practicable pursuant to the terms and
conditions o his Agreement. The Parties agree that time is of the essence in all aspects of their
respective zd mutual responsibilities pursuant to this Agreement. The City shall use its best
efforts to xpedite the permitting and approval process in an effort to assist the Developer in
achievin its development and construction milestones. The City will accommodate requests
from t e Developer's general contractor and subcontractors for review of phased or multiple
perp ' ting packages, such as those for excavation, site work and foundations, building shell,
cor , and interiors. In addition, the City will designate an individual within the City Manager's
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Final Draft 10/29/15
Office who will have a primary (though not exclusive) duty to serve as the City's pointPf
contact and liaison with the Developer in order to facilitate expediting the processing nd
issuance of all permit and license applications and approvals across all of the v nous
departments and offices of the City which have the authority or right to review and ap ove all
applications for such permits and licenses.
Notwithstanding the foregoing, the City shall not be obligated to iss development
permits to the extent the Developer does not comply with the applicable re irements of the
Zoning, the Comprehensive Plan, this Agreement and applicable building co s.
Section 27. Reservation of Development Rights -4_k"
(a) For the tern of this Agreement, the Ci
development of the SAP Applications
Plan, Miami 21, the Miami River S ��,
(b) Nothing herein shall prohibit an irie
permitted in the SAP Application Ai
the Miami River SAP, and/or the
subsequently requested or iltiated
provisions of law or (c) any zoning c
in the
a mai
by the
(c) The expiration or tennination-of this -g
or limitation upon, the rights, iic dingy
rights or equitable estoppel, obt ied1.-oi
assigns to continue dev6, opine of.,th-e I
and all activepifor acid- su equent ,d(
granted_ by the City
a Section 28.
'Annual Review.
a)'The Cit ma levie_ the De o went that is subject to this Agreement once ever
()A Y Y'P J Y
twelve (12) month 1MIM g twelve (12) months after the Effective Date. The
City begin e review process by giving notice to the Developer, a minimum of
thirty ( _ y prion to the anniversary date of the Agreement, of its intention to
undertake is f § _ view of this Agreement.
(b) Any info ation equired of the Developer during an annual review shall be limited
to that i cessary to determine the extent to which the Developer is proceeding in
good f th to comply with the terns of this Agreement.
that it shall permit the
with the Comprehensive
this Agreement.
ty of intensity of development
asistent w (a) Miami 21 and
Plan, (b) all . oning change
in accordance with applicable
[y enacted by the City.
ent s 1 -not be considered a waiver of,
''not limited to, any claims of vested
1 by the,Developer or its successors or
,ityinonfonnity with Existing Zoning
prnent pen -nits or development orders
(c) If t e City finds on the basis of competent substantial evidence that the Developer
hA not proceeded in good faith to comply with the terms of the Agreement, the City
�fiay terminate or amend this Agreement after providing thirty (30) days written
notice to the Developer and after a public hearing.
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Development Agreement
Final Draft 1012Wl5
Section 29. Notice. All notices, demands and requests which may or are r aired to
be given hereunder shall, except as otherwise expressly provided, be in writing =61ivered by
personal service or sent by United States Registered or Certified Mail, returnrt requested,
postage prepaid, or by overnight express delivery, such as Federal Express, to e Parties at the
addresses listed below. Any notice given pursuant to this Agreement sha be deemed given
when received. Any actions required to be taken hereunder which fall Ex,/
aturday, Sunday, or
United States legal holidays shall be deemed to be performed tim y when taken on the
succeeding day thereafter which shall not be a Saturday, Sunday or le 1 holiday.
To the City:
With a copy to:
City Manager, City of Miami
3500 Pan American Drive
Miami, FL 33133
City Attorney, City of MT r
Miami Riverside_ Center?*-'..
444 S.W. 2nd Ave.-, tR Floor
Miami, FL 33130
To the Developer;,
, :.,CG Miami
Atri: Ari P
2
With C(lUV to:
eIl &Fernandez, PLLC
a Tapanes Llahues, Esq.
ane Boulevard, Ste 850
3131
Any Party to �iis Agrees - nt may change its notification address(es) by providing written
notification t the remaining parties pursuant to the terms and conditions of this section.
Sec on 30. Multiple Ownership. In the event of multiple ownership subsequent to
the appro al of the Application, each of the subsequent owners, mortgagees and other successors
in intere t in and to the Property (or any portion thereof, including condominium unit owners)
shall b bound by the terms and provisions of this Agreement as covenants that run with the
Section 31. Common Area Maintenance. A maintenance and indemnification
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Final Dram 10/29/15
Covenant to run with the land, in a form approved by the City Attorney, shall be requir for
any non-standard improvements and public amenities located within the public right- -ways.
Said Covenant shall identify a single person or single entity as the responsible party r all such
non-standard improvements and public amenities located in the public right of wa included in
the Special Area Plan. The Developer will create prior to the conveyance of an portion of the
Property (less than the entire Property), an association or other entity which sl 1 provide for the
maintenance of all comnnon areas, private roadways, cross -easements nd other amenities
conunon to the Property. This Agreement shall not preclude the owner of the Property from
maintaining their own buildings or common areas not conunon to e Property outside the
control of the association. The instrument creating the associat' in or other entity shall be
subject to the reasonable approval of the City Attorney.
Section 32. Modification. Irl accordance FProject plans, the Project will be
developed in five (5) Phases. This Agreement r e odifie" . amended or released as to
Phase 1, or any portion thereof, by a written Inst t xecuted e, then, owner(s) of Phase
1 including joinders of all mortgagees, if an ed that the sa M also approved by the
City, after public hearing. Any public he lication related to Rase 1, or any portion
thereof, shall only require the consent, acknow ent anjoinder of=the then owner(s) of
Phase 1. This Agreement may be modified, Zen oz rel%a ed as to Phase 2,,or any portion
thereof, by a written instrument executed by ne, them er(s) of Phase 2, including joinders .of
all mortgagees, if any, provided that tine sa nne is also app tried by the City, after public hearing.
Any public hearing application related 'Pliase`2, or any po�lrozl thereof, shall only require the
consent, acknowledgment and/or join er of. the then owners) `of.Phase 2. This Agreement may
be modified, amended bi, rel'ea' e&d a to Phase 3, or.,' portion thereof, by a written instrument
executed by the, their, owner(sf Phase 'h luding Joinders of all mortgagees, if any,
provided that the sante is also approved by th y, after public hearing. Any public hearing
application related to Phis `F 3, or any po thereof, shall only require the consent,
acknowledgment and/or joi der of th, ''' on owner .$) of Phase 3, This Agreement may be
modified, amended,, o rel ased;as to Ph r portion thereof, by a written instrument
execu kbY the, thw�nez s , .of Phase .�lud ngjoinders of all mortgagees, if any,
,
providwat
the sam rs afso approved, by the City, after public hearing. Any public hearing
application related o Phase , or ' airy, portion thereof, shall only require the consent,
acknowledgirie d/or join'' >_of the then owner(s) of Phase 4. This Agreement may be
modified, amen r release . to Phase 5, or any portion thereof, by a written instrument
executed by th , owner, of Phase 5, including joinders of all mortgagees, if any,
provided that e sarn " 1 a roved by the City, after public hearing. Any public hearing
application lated to P :' S, or any portion thereof, shall only require the consent,
acknowled Hent and/or J Her of the then owner(s) of Phase 5. In the event that there is a
recorded meowners or condominium association covering any portion of Phases 1, 2, 3, 4, 5,
or any p rtion thereof, said association may (in lieu of the signature or consent of the individual
memb s or owners), on behalf of its members and in accordance with its articles of
incor oration and bylaws, consent to any proposed modification, amendment, or release' by a
writ n instrument executed by the homeowners or condominium association. Any consent
in e pursuant to a vote of the homeowners or condominium association shall be evidenced by a
w 'ttern resolution of the homeowners or condominium association and a certification executed
y the secretary of the homeowners or condominium association's board of directors affirming
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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 D eloper
shall have the right to enforce the provisions of this Agreement. Enforcement shall b y action
at law or in equity against any parties or persons violating or attemptingto violate any
covenants, either to restrain violation or to recover damages or both.
Section 34. Authorization to Withhold Permits and Ins ectio . Inn the event the
Developer is obligated to mance payments or improvements under the ten of this Agreement or
to take or refrain from taking any other action under this Agr _ ent, d such obligations are
not performed as required, in addition to any other rein µ. av ' able, the City is hereby
authorized to withhold any further permits, and refuse �Zylnspec 'ons or grant any approvals,
for the specific Phase of development the outstanding- obligati , ns relate to until such time as
this Agreement is complied with.
a Certificate of Occupancy, Temporary Certifi
the first new single -use building in the SAP A
City's Comprehensive Plan (Policy CM4.3 A.)
regarding an Emergency Manageme M
the safety of people and property sh
disaster, fire, act of God, or other simi, ev
pedestrian circulation, SequKgy systems,
mitigation readily availWG!b! e SAP
heirs, or permitted assigns, sh ovi an
issuance of a TCO or`equivalent f i e n new
to the issuance of
the equivalent for
i.(34 Area; -the Developer, as required by the
ter into a binding agreement with the City
)i. Plan (`Emergency Plan") detailing how
for annaintained in the event of a natural
le Eme geucy Plan shall detail vehicle and
rTeventative�,and protective measures and
Y ea: -,.The Developer, or its successors,
cope Emergency Plan prior to the
is in thN re.
Sectio -n-36- ; Exclusive Wnue,`Choice of Law, Specific Performance. It is mutually
understood_ and agrees -by
the p ties hereto, that this ��Agreement shall be governed by the laws
of the estate of Florida, and any pp able federal, law, both as to interpretation and performance,
and that any action at law , T it inequity or judicial proceedings for the enforcement of this
Agreement or any provisio Flier of shall be instituted only in the courts of the State of Florida or
federal courts "and ver for- y sue ctions shall exclusively in a court of competent
jurisdiction in th In a ion to any other legal rights, the City and the Developer shall
each have the right ecific ; - 'bnmance of this Agreement un court. Each party shall bear its
own attorney's fees aives any defense, whether asserted by motion or pleading,
that the aforemen oned are an improper or inconvenient venue. Moreover, the parties
consent to the ersonal ju diction of the aforementioned courts and irrevocably waive any
objections to s id jurisdiction. The Parties irrevocably waive any rights to a jury trial.
SecAon 37. Voluntary Compliance. The Parties agree that in the event all or any
part of t is Agreement is struck down by judicial proceedings or preempted by legislative
action, e Parties shall continue to honor the terms and conditions of this Agreement to the
exten allow by law.
Section 38. Severability. Invalidation of any of the sections, terms, conditions,
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provisions, or covenants, of this Agreement by judgment of court in any action initiated a
third party, in no way shall affect any of the other provisions of this Agreement,whic shall
remain in full force and effect.
Section 39. Events of Default.
(a) The Developer sliall be in default under this Agreement if of the following
events occur and continue beyond the applicable grace p od: the Developer
fails to perforin or breaches any term, coven/daythen
'ion of this Agreement
which is not cured within thirty (30) days aftf written notice from the
City specifying the nature of such breach; prever, that if such breach
cannot reasonably be cured within thirty ,; (3the Developer shall not
be in default if it commences to cur hin said thirty (30) day
period and diligently prosecutes such o.
(b) The City shall be in default und,
breaches any term, covenant,
not cured within thirty (30) c
Developer specifying the nature
breach cannot reasonably be cur(
default if it commenc6%16`c.
diligently prosecutes sub c c
S eement if the .City fails to perform or
i ' n of this Agreement and such failure is
fter receipt of written ,notice from the
ich breach; provided, however, that if such
:lin flm-rty (30) days, the City shall not be in
reac vy thin said thirty (30) day period and
(c) It shall not be a default id 's -k em, t.if either party is declared bankrupt
by a cburtbf cometei juris i All rights and obligations in this Agreement
shall survive such b` J uptcy o er party. The Parties hereby forfeit any right
to terininate this A Bement up_tlie bankruptcy of the other party.
tion 40.. ''Renned Mon on Default:
hi a) Neither pay may ., nate this Agreement upon the default of the oilier party,
b ut shall live all of the.fnedies enumerated herein.
(b)° _ e occurrence of a default by a party to this Agreement not cured within
the Ecable gn ace; period, the Developer and the City agree that any party may
see _ 'fico xormance of this Agreement, and that seeking specific
p forma 7 not waive any right of such party to also seek monetary
anlages, ink: f ctive 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 hTununity or similar limitation of
liability.
ection 41. Obligations Surviving Termination Hereof. Notwithstanding and
ng over any contrary term or provision contained herein, in the event of any lawful
ation of this Agreement, the following obligations shall survive such termination and
ie in full force and effect until the expiration of a one (1) year tern following the earlier
effective date of such ternination or the expiration of the Tern: (i) the exclusive venue
Development Agreement
Final Draft 10/29/15
and choice of law provisions contained herein; (ii) rights of any party arising Burin r
attributable to the period prior to expiration or earlier termination of this Agreement,
any other term or provision herein which expressly indicates either that it sure' es the
tennination or expiration here of or is or may be applicable or effective beyond the e iration or
permitted early termination hereof.
Section 42. No Oral Chante or Termination. This Agreement a 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 h of. This Agreement
supersedes any prior agreements or understandings betweei the P ies with respect to the
subject matter hereof, and no change, modification, or discha e of in whole or in part shall
be effective unless such change, modification or discharge .is � 1 iting and signed by the party
against whom enforcement of the change, modificati disc Targe is sought. This Agreement
cannot be changed or terminated orally.
construed as establishing an agency re',
Developer nor its employees, agents,
shall be deemed agents, instrunientaL,i
hereunder, and the City, its officid
contractors, agents, or employees of
section 44. successor
forth in this Agreement shall exi
contained herein shQI-be deeriec
nor to any persons or entities exc
F
Seetio*45 Thir'&Pa
own cost ,arra= expens; vlgorousiy_
third 15a_fies challenging - th'e Agr
including, :without limitat' it, (i) a
Statutes (2014),, (ii) a p iti 'A for
(iv) any clainis.foralos , damage, li
City and the Dever r shall proin
those that are per or tlueate
thereto.
Rela " , hi . Nothing .contained herein shall be
Itioris T� tw n the City and the!D.eveloper and neither
contract sidia(s, divisions;' _affiliates or guests
es, emplo es, or contractors of the City r any purpose
'ontract s, agents, and employees shall not be deemed
De� tl er or its subsidiaries, divisions or affiliates.
agns, ana liesi pees. in ovenants anu oongations set
eveloper, its succes s) and/or assigns. Nothing
a de t0at o` conveya I or grant to the public in general
expressly forth herein.
af6hse. The; City and the Developer shall each, at their
nd any claims, =suits or demands brought against them by
ent or "the Project, or objecting to any aspect thereof,
sistencychallenge pursuant to Section 163.3215, Florida
o •:certiorari, (iii) an action for declaratory judgment, or
ity, r expense (including reasonable attorneys' fees). The
give the other written notice of any such action, including
and all responses, filings, and pleadings with respect
Sectini 46. No ffiird-Party Beneficiary. No persons or entities other than the
Developer/d the City, permitted successors and assigns, shall have any rights whatsoever
under this reernent.
ection 47. Recording. This Agreement shall be recorded in the Public Records of
Mi '-Dade County, Florida at the Developer's expense and shall inure to the benefit of the
Cit A copy of the recorded Development Agreement shall be provided to the City Cleric and
C' Attorney within two (2) weeks of recording.
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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, enforcea/lative
ce w' i
its terms.
Section 49. No Exclusive Remedies. No remedy or election grovision
in the Agreement shall be deemed exclusive unless expressly so indicateossible,
the remedies granted hereunder upon a default of the other party shalle and uiaddition to all other remedies of law or equity arising from such event ofpt where
otherwise expressly provided.
Section 50. No Conflict of Interest. The
612 of the City Code as of the Effective Date, with r
Section 51. Counterparts. This
counterparts, each of which shall constitute
shall constitute one and the same agreement.
NOW, WHEREOF, the City and
executed.
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Eo comply with Section 2 -
of interest.
/be ek&uted in two (2) or more
all of w11-1011 when taken together,
ibis Agreement e duly
Follow]
Development Agreement
Final Draft 10/29/15
IN WITNESS WHEREOF, these presents have been executed this day of
2015.
CG Miami River, a Delaware
Witnesses liability corporation
By:_
Print Name Name:
Title:
Print Name
STATE OF )
)SS
COUNTY OF
The foregoing instrument was ackno . e" efore ine this-
day
hisday of , 2015 by
of ami River C who is
Personally known to iza� QThroduc d id dri4F tense entification.
otary P
ign Name:, -
ame:
My
#550255.doc
[NOTARIAL SEAL]
ATTEST:
By:
TdHannon, City Clerk
Approved as to Forin and Correctness:
Victoria M61idez, City Attorney
Development
Final Dr,
City of Miami, a Florida municipal
By:
Daniel J. Alfonso, Ci/nce
nager
Approved as to Ins Requirements:
By: -
STATE OF
COUNTY OF
The foregoing insti-urn c owle v before i
day of 5 by
t re: ity M Florida, who is the
City a ho is
personally known to in ) d a vali 'ver's license
as identified"
Narne:
P : 'h Name:
My Commission Expires:
[NOT
#550255.doc
0/29/15
ation
if
Agreement Presented to the City
Commission on October 22, 2015.
REAL ESTATE PURCHASE AND EXCHANGE AGREEMENT
THIS REAL ESTATE PURCHASE AND EXCHANGE A.G EMENT (the
"A Bement") is made as of the _day of, 2015 (the "Effect' . e Date"), by and
between FDG Rail Holdings 25 LLC, a Delaware limited liability company DG"), All Aboard
Florida -- Operations LLC, a Delaware limited liability company ("AAF") nd City of Miami, a
Florida municipal corporation (the "City"). FDG, AAF, and the City sha each be referred to as a
"Party" and collectively, as the "Parties".
WITNESSETH:
In consideration of the mutual undertakings of the parties/et forth in this Agreement and of
other valuable considerations, the receipt and sufficiency of wlij h the parties hereby acknowledge,
theparties hereby agree as follows: /
1. City Property to be Exchanged. The City is the . ex in fee simple of that certain parcel
of property, containing approximately 0.30 acres, locate m 1Viiamite ade County,. Florida, as more
particularly described on Exhibit AA .attached hereto 1d made a part hereof, together with all
appurtenances, hereditaments and improvements locat d thereon (the "City Prope y So�ttli'). The
legal description provided on the Survey of City roperty (as defined in Section 8,1 of this
Agreement) shall define the City Property. for all p rposes of this Agreement. The City is also the
owner in feesimple of that certain parcel of prop ty, containing approximately 0.32 acres, located
in Miami -Dade County, Florida, and identifie as Folio number 01-3136-000-OO90, as more
particularly described on Exhibit B attached h to and made a part hereof ("Tracts F&G"). The
City will exchange Tracts F&G, subject to a r ert�ation of air rights above 100 feet ("Cit�Property
North") together with the City Property Sout , (collectively the "City Property"). Notwithstanding
the change in. the manner in which the City roperty or Tracts F&G are described, the intent of the
City is to convey the properties described ' Exhibits .A. and B,
2. FDG Property to be Exehan e , FDG is the owner in fee simple of that certain parcel of
property, containing approximately 0. 0 acros'located in Miami -Dade County, Florida, as ,more
particularly described on Exhibit C attached hereto and made a part hereof; together with all
appurtenances, hereditaments and ' rovements located thereon (the "FDG Property"). The legal
description(:) provided on the S rvey of FDG Property (as defined in Section 9,.1 of this
Agreement) shall define the FDG roperty for all purposes of this Agreement.
3. Crossing Easement A2ieement. The City hereby grants to AAF and its assigns the right to
cross certain portion of NW ' Street ("Existing Roadway"), including subsurface rights and air
rights up to one hundred (100 feet as shown in Exhibit D, attached hereto and .made apart hereof,
for purposes of including, but not limited to, constructing, operating, and maintaining rail
infrastructure including air d grade crossing, installation of signs, pipelinea and/or communication
cables, over, under and a oss the Existing Roadway (the "Crosshlent
a Easement Agreem"), The
Crossing Agreement shat .be in a form sufficient to permit the Title Insurer to insure title in AAF in
the Crossing Easement greement as provided for in :Section 8,2 above. AAF and the City agree
that the Crossing Ease ent Agreement shall contain the insurance provisions, set forth in that
certain Aerial Easemei� to be entered h to by DT Miami LLC and the City of Miami for easements
over N.W. 5"' Street ,and including,
6"' Street between N.W. 1" Avenue and Miami -Dade County
MetroRail North Corridor Right of Way and noted on the Plat of Flagler Gran Central Station as
recorded in Plat Book 170 page 41 of the Public Records of Miami -Dade County, Florida. Further,
AAF shall use comtnercially reasonable efforts to obtain Florida East Coast Railway, L.L.C.'s
("FECR") agreement as to the location of FECR's .easement across the Existing Roadway and
FECR's agreement to waive its right to relocate the easement in the future,
4. Roadwav Construction. During the Inspection Period, the ' City and FDG shall work
together to conceptually design NW 1 I Avenue between NW I" Street and NW 2"s Street (°`New
Roadway") substantially in accordance with Exhibit E attached hereto and made a part hereo
FDG shall, at its cost and expense, design and construct the New Roadway in accordance with t e
City Code. The New Roadway construction is .estimated to commence on or about September 1,
2016 and be completed and open for normal operation on or about March 1, 2017,
5. Right of Wav 'Vaeation,,Platting and Entitlements,
5.1 The City and FDG shall file and process, at FDG's expense, the applicatio equired
in order to replat (the "Plat Process") the City Property and Tract A of FLAGL GRAN
CENTRAL STATION, according to the Plat thereof, as recorded in Plat Book 170, Pae 41, of the
Public Records of Miami -Dade County, Florida (together, the "Reconfigured Lot") which would
include the vacation, at no additional cost to FDG, of the right of way located wit1 n, bisectil 9 or
between the parcels constituting the City. Property, as depicted on Exhibit F a dched hereto and
made a part hereof, FDG's obligation to close this transaction shall be Contin ent upon the City
completing the. Plat Process, The City agrees to cooperate and facilitate throug tit the Plat Process,
5,2 The City shall cooperate in AAF's efforts to modify t Interlocal Agreement
between the City and Miami -Dade County to allow the expansion oft e Rapid Transit Zone to
include the entire Reconfigured Lot. In addition, FDG :shall continue to ount the square lbotage of
the FDG Property after the- transfer to the City to comply with the gree space requirement whether
or not the City thereafter constructs improvements on the FDG Pro erty. The provisions of this
Section 5.2 shall survive the -Closing,
6. Inspection. Commencing on the Effective Date and exp' ng at 5;00 p.m. on the date that is
sixty (60) days after the Effective Date (the "Inspection Period` , AAF, FDG and their agents shall
have the right and privilege. to enter upon the City Proper, , at their own risk and expense, to
inspect, examine, survey and perform'such tests, inspections, studies or other evaluations of the City
Property as AAF and FDG may deem necessary in conjun ion with AAF's and FDG's acquisition
of the City Property, including, but not limited to, a Phas I and/or Phase II environmental audit, an
engineering feasibility study which may include topo . aphic surveys, core borings, groundwater
testing, soil test pits and load bearing tests, as may b required by AAF and/or FDG to determine
the physical characteristics of the substrata of the C, y Property, Within ten days of the Effective
Date, the City shall provide AAP' and FDG witl all property information fan the City's control
including,. but not limited to, environmental repo ts, title reports, surveys, permits, approvals, and
leases. If AAF and FDG terminates this Agreement or fails to purchase the City Property, AAF
and/or FDG shall restore the City Property to its original condition, or better, and shall indemnify
and hold the City harmless from and against any and all claims, costs, expenses and damages to
persons and/or property incurred by, through, or out of the exercise of such privilege, AAF's and
FDG's obligation to indemnify the City set forth herein shall survive the Initial Closing Date or
Closing Date, as applicable, of this Agreement or the termination of this Agreement, Prior to
perf6rming any inspections, AAF and/or FDG shall provide evidence to the City that all consultants
2
or contractors conducting inspections _carry commercial general liability insurance insuring its
activities with coverage in an amount not less than $2,000,000 per occurrence, and all such policies
shall be written on an occurrence basis and the. City as an additional insured, which insurance shall
be reasonably approved by the Director of Risk Management, and such coverage shall be k� i
place until the Initial Closing Date or Closing Date, as applicable, or earlier termination d� his
Agreement. As it relates to City employees accessing the Property, the City is self -insure ag inst
any claim,
During such Inspection Period, the City and its agents shall have the right d prix ge to
enter upon the FDO Property, at their own risk and expense, to i spect, exai ne,. sury y and
perform such tests, inspections, studies• or other evaluations of the FDG Proper, as the C' y may
deem necessary in conjunction with the City's acquisition of the FDG Propei , including, but not
limited to, a please I and/or Phase II environmental audit, an engineering - asibility stud which
may include topographic surveys, core borings, groundwater testing, soil t-st pits and lo a bearing
tests,, as maybe, required by the City to determine the physical characteri les- of the substr a of the
FDG Property. Within ten days of the Effective Date, FDG shall provi the City with all roperty
information in FDG's control including, but not limited to,. enviro ental reports, title eports,
surveys, permits, approvals, and leases, If the City terminates this A regiment or rails to. acq dre the
FDG Property, the City shall restore the FDG Property to its origin 1 condition and shall ind ramify
and hold FDG harmless frons and against any and all claims, osts, expenses and dam ges to
persons and/or property, 'incurred by, through, or out of the ex e cise of such privilege. Th City's
obligation to indemnify FDG set forth herein shall survive the iutial Closing Date or Closin ]Date,
as applicable, of this Agreement or the termination of this Agreement, Nothing herein hall be
construed as a waiver of the City's sovereign immunity. Nothing herein shall be cons rued as
consent by the City to be sued by third parties, Prior to rformiing any inspections, the +ity shall
provide evidence to FDG that all consultants or ontractors conducting inspecti ns carry
commercial general liability insurance insuring its ac- ities with coverage in an amou t not less
than $2;000,000 per occurrence, and all such policio shall be written on an occurrent basis and
name FDG as an additional 'insured, which insura.n e shall be reasonably approved by t e Director
of Risk Management, and, such coverage shall kept in place until the Initial 'Closing Dake or
Closing Date, as applicable, or earlier terminatio of this Agreement.
Notwithstanding anything contained I Grein to the contrary, inspections by AAF, FDG or the
City (each an "Inspecting Party") shall be s ject to the following terms and conditions;
(a) At a Party's request, the other Party shall provide a copy of any report or other
information, other than an exempt reco , ,. produced as a result of any inspection within 5 -days.
(b) Each Party may haYea representative present at any inspection, including, without
limitation, an environmental audit.
(c) Each Party shall rake any request to. the other Party to conduct ail inspection of the
City Property or FDG Propert , as applicable, at least 24 hours prior to the proposed bine far the
conduct thereof, which notice hall specify the type of inspection to be conducted by such Parts►.
(d) If a Partyerforrins invasive environmental testing (such as drilling or soil or
groundwater testing) ora - . ase II environmental audit, both Parties shall both receive copies of the
report compiled by the contractor. In dee eveint the Phase 11 audit reveals any condition that',
according to applicable- law, must be reported to a ,governmental authority, then acquiring Party
shall allow the conveying Party or its agent to. make the initial contact with such governmental
authority regarding such condition.
AAF and/or FDG shall have the. right, which may be exercised by delivering written notice
to the. City and FDG at any time during the Inspection Period, to terminate this Agreement for any
reason that AAF and/or FDG, as applicable, deems appropriate, Upon delivery of written notice ,!
termination to the City during the Inspection Period, this Agreement shall terminate and all i ef
parties hereto will have no further rights or obligations hereunder except those mentioned h ein
that specifically survive termination,
The City shall have the right, which may be exercised by delivering written notic _ to AAF
and FDG at any tine during the Inspection Period, to terminate this Agreement for .any eason that
the City deems appropriate, Upon delivery of written notice of termination to AAF and DG during
the Inspection Period, this Agreement shall terminate and all the parties hereto will ve no Airther
rights or obligations hereunder except those mentioned herein that .specifically surviv termination,
7. Condition of Property. The Parties understand and agree that they are Aquiring the City
Property or the FDG Property, as applicable, in .an "as is where is" condition with all faults and
without any representation or warranty on the part of the conveying Party xcept as otherwise
.specified herein. Each Party is solely responsible for obtaining all n essary development
approvals from. government entities. Neither Party represents that any glermment approval has
been given for development on any specific site or parcel, .AAF or FDG, . s applicable, represents
and warrants to the City that AAF or FDG, as applicable, is rely' g solely upon its own
Investigations and inspections made during the Inspection Period,, and a a result the City shall not
be obligated to make any modifications. to the City Property as a con tion to. AAF's or FDG's, as
applicable, obligation to close. The City represents and warrants to qDG that the City is relying
solely upon its own investigations and inspections made during t e Inspection Period, and as a
result FDG shall not be obligated to make any modifications to th FDG Property as a condition to
the City's obligation to close.
8. Survey of City Proverty.and Title Review,
8,1 Survey. Within forty-five (45) da/aerEffective Date (the "Title and Survey
Deadline"), AAF and FDG shall obtain, at AAF's expense, a boundary survey ofthe City
Property prepared by a licensed Florida land in accordance with Florida minimum
technical standards (the '`Surve off City Propertyurvey of City Property shall be certified
to AAF or FDG, the City and Title Insurer, as dectioan 8.28.2 hereof, and shall describe an
overall metes and bounds legal description oftheerty.and show the total area of'the City
Property to the nearest square foot. Upon receipt vey of City Property, AAF or FDG shall
provide a copy to City.
8.2 Title Insurance. Prior to the e niration of the Title and Survey Deadline, AAF or
FDG may obtain an owner's title insuran e commitment with copies of all exceptions and
attachments thereto (the "AAF and DO/Commitment") from First American Title Insurance
Company, as title insurer ("Title InsurerZ�tsyl
at AAF's.or FDG's expense,. which commits to insure
AA.F's or FDG's 'Cee simple title to the CProperty in an amount acceptable to AAF or FDG, as
applicable. Title Insurer.shall commit to /e an owner's title insurance policy to AAF or FDG, as
4
applicable, within sixty (60) days following the date of Initial Closing or Closing, as applicable,
insuring. AAF's or FDG's fee simple title to the City Property free and clear of all liens and
encumbrances except (i) 'those exceptions not objected to by AAF or FDG under the provisions of
Section 8.3, (ii) those exceptions created by AAF' or FDG, and (ii) those City Property Titl
Defects, as defined in Section 8. 3, which the City is unwilling or unable to cure in the event AAF r
FDG does not terminate this Agreement pursuant to Section 8.3 (the "Cit Property -Perm' ted
Exception),
8.3 AAF's and FDG's Review, AAF and FDG shall have fifteen (15) days iter its
receipt of the, AAF and. FDG Commitment and the Survey of City Property, to examine t e & vey
of City Property and the AAF and FDG Commitment and to notify the City in wri g of any
defects in title to the City Property ("City Property Title Defects").. The City shall not e obligated
to remedy or remove the City Property Title Defects, If the City is unwilling or un ble to remedy
all the City Property Title Defects, the City shall deliver notice thereof to AAF and DG within ten.
(10) days of -receipt of AAF's or FDG's notice of the City Property Title Defects. Upon receipt of
notice from the City that it is unwilling or unable to remedy all of the City Pro erty Title Defects,
AAFor FDG shall then have the option of either. (i) providing the City not' •e of its election to
terminate this Agreement no less than five (5) business days prior to Initial osing :or Closing, as
applicable, whereupon both parties shall thereafter be relieved of all furthe obligations under this
Agreement which do not specifically survive its termination, :or (ii) talc' g title as it then exists
without changing the obligations set forth in this Agreement. If AAF or DG does .not give notice
to the City of its intention to terminate the Agreement at least five (5) b. siness days prior to Initial
Closing Date or Closing Date, as applicable, AAF and FDG shall be deemed to have waived its
right to terminate the Agreement pursuant to this section. Notwitl Landing the foregoing to the
contrary, the City shall be obligated to discharge, either at or be -for Initial Closing or Closing, as
applicable„ all mortgages, construction liens, and other liens, and p st due taxes.
8.4 Update of Title Commitment and Survey Prior Yo Closing, AAF and FDG shall
have the, right to update the AAF and FDG Commitment anSurvey of City Property during the
period between, the end of the Inspection Period and the I-_ ial
Closing Date or Closing Date, as
applicable. In the event that any such update discloses an additional title and/or survey matters
that were not shown on the AAF and FDG Commitm nt and/or Survey of City Properly, as
applicable, which either (i) renders title unmarketable cording to the applicable title standard
adopted 17y the authority of The Florida Bar,or (ii) atcrially and adversely affect AAF'.s and
FDG's intended use of the Property in AAF's 'and FD 's commercially reasonable discretion, AAF
:or FDG shall give the City written notice of any s h matters within five (5) days after AAF or
FDG receives notice thereof, but in no event later t an the Initial Closing Date or Closing Date, as
applicable (the "AAF or FDG Objection Notice" -, otherwise AAF and FDG shall be deemed to
have waived its right to give an AAF or FDG O lection Notice for such title matters (if any),. The
City shall thereafter have a period of ton (10 days fiom receipt of an AAF or FDG Objection
Notice to cure such matters and to the exte t that such ten (10) day time period would expire
beyond the Initial Closing Date -or Closing ate, as applicable, shall be -automatically extendedto
the date that is ten (10) days following the xpiration such ten (10) day period; provided, however,
in no event shall the City have any obli ation to cure or remove any title matters except those
monetary exceptions created by the City's acts as set, forth above. If the City is unwilling to cure
such title matters within such 10 day eriod, AAF or FDG will have a period of five (5) days
thereafter in which to elect, by written tice to the City, whether to.; (i) waive the unsatisfied title
and/or survey matters and complete th, purchase of the Property subject thereto, without reduction
of the Exchange Price, if applicable.; or (ii) terminate this Agreement, whereupon AAF, FDG and
the City shall be released of all obligations hereunder that do not expressly survive termination o••
thus Agreemlent. If AAF or FDG fails to make an election within such time period, AAF and FD
will be deemed to have elected to waive such title and/or survey matters, all of which shall e
deemed to be the City Property Permitted Exceptions hereunder.
9. Survey of FDG Property and Title Review.
9.1 Surve . Prior to the expiration of the Title and Survey Deadline, FDG sh�a'll obtaua,
at FDG's expense, a boundary survey of the FDG Property prepared by .a licensed Florida land
surveyor hi accordance with Florida minim -um technical standards (the "S ev of FD Pro ert "),
The Survey of FDG Property shall be certified. to FDG, the City and Title Insurer an shall describe
an overall metes and bounds. legal description of the FDG Property and show the otal area of the
FDG Property to the nearest square foot. Upon, receipt of the Survey of the FDG roperty� the City
shall provide a copy to FDG,
9.2 . Title Insurance, Prior to the expiration of the. Title and Sury Deadline, FDG shall
obtain an owner 's title insurance commitment with copies of all exception and attachments thereto
(the "CitXCorainaitment") from Title Insurer, at FDGss expense, which e its to insure the City's
fee simple title- to the FDG Property in the amount acceptable to th City. Title Insurer shall
commit to issue an owner's title insurance policy to the City within xty (60) days following the
date of Initial Closing Date or Closing Date, as applicable insuring City's fee simple title to the
FDG Property free and clear of all liens and encumbrances except (' those exceptions not objected
to by the City under the provisions of Section '9.3 and (ii) those i G Property Title Defects, as
defined in Section 9.3, which FDG is unwilling or unable to cu e in the event the City does not
terminate this Agreement pursuant to Section 9.3 (the "FDG Pro ert Permitted Exception
9.3 City's Review. The City shall have fifteen 5) days after its receipt of the City
Commitment and the Survey of FDG Property, to examine t Survey of FDG Property and the City
Commitment and to notify FDG in writing of any defec s in title to the FDG Property ("FDG
Property Title Defects"). FDG shall not be obligated. to r medy or remove the FDG Property Title
Defects. If FDG is unwilling or unable to remedy a FDG Property Title Defects,. FDG shall
deliver notice thereof to the City within ten (10) ds of receipt of the City's notice of FDG
Property Title. Defects. Upon receipt of notice R!o MO that it is either unwilling or unable to
remedy all of the FDG Property Tittle Defects, the City shall then have the option of either; (i)
providing FDG notice of its election to terminate tl s Agreement no less than five (5) business days•
prior to Closing or (ii) taking title as it then e 'sts without reduction iii the Exchange Price, if
applicable. If the City does not give notice to F G of its intention to terminate this Agreement at
least five •(5) business days prior -to Closing, t e City shall be deemed to have waived its right to.
terminate this Agreement pursuant to this sec on, Notwithstanding the foregoing to the contrary,
FDG shall be obligated to discharge, either, or before Closing, all mortgages, construction liens,
other liens and judgments, and past due tare .
M Update of Title Commitin nt and Survey Prior To Closin . The City shall have the
right to update the City Commitment 4d Survey of FDG Property during the period between the
end of the Inspection Period and the Csnag Date. In the event that any such update discloses any
additional title and/or survey matters tZat were not shown on the City Commitment and/or Survey
of FDG Property, as applicable, which either (i). renders title ulnnarketable according to the
6
applicable title standards adopted by the authority of The Florida Bar, or (ii) materially and
adversely affect the City's intended use of the FDG Property in the City's reasonable discretion, the
City shall give FDG written notice of any such matters within five (5) days after the City receives
notice thereof, but in no event later than the Closing Date (the "City Objection Notica"), otherwis/
the City shall be deemed to have waived its right to give a City Objection Notice for such tit e
matters (if any).. FDG 'shall thereafter have a period, of ten -(10) days from receipt of a ity
Objection Notice to cure such matters and to the extent that such ten (10) day time period w, uld
expire beyond the Closing Date, the Closing Date shall be automatically extended to the date t at is
ten (10) days following the expiration of such ten (10): day period; provided, however, in n event
shall FDG have any obligation to cure or remove any title matters except for except those t . notary
exceptions created by FDG's acts as set forth above. If FDG fails, is unable or unwillin to cure
such title matters within such 10 -day period, the City will have a period of five (5) days th reaper in
which to elect, by written notice to FDG, whether to: (i) waive the unsatisfied title an /or survey
matters mid complete the exchange of the City Property for the FDG Property sub' ct thereto,
without reduction of the obligations set forth in this .Agreement; or (ii) providing the ity notice of
its election to terminate this .agreement, whereupon FDG and the City shall be leased of all
obligations hereunder that do not expressly survive termination of this Agreement., f the City fails
to mance an election within such time period, the City will be deemed to have elec d to waive such
title and/or survey matters, 411 of which shall be deemed to be FDG Property Pe itted Exceptions
hereunder. /
10. AAF Contribution. At Closing, AAF shall contribute to the City a amount equal to five
hundred thousand dollars ($500,000.00) for the public's benefit to be used owards the acquisition
or development of the fire station proposed to be constructed on the FDG roperty or similar public
project. 7
11.. Conditions Precedent to Closing.
11.1 Conditions to AAF's and FDG's Closing. AAF's an FDG's obligation to close this
transaction shall be: contingent upon the City's full performance o' all of their obligations under this
Agreement and AAF's and FDG"s receipt of reasonably acre table evidence of the continuing
accuracy of all of the representations and warranties or covena s of the City as set forth herein and
completion of the Plat Process,
11.2 Conditions to City's Closing. The City's ob gation to close this transaction shall be
contingent upon RAF's and FDG's full performance of al of their obligations under this Agreement
and the City's receipt of reasonably acceptable eviden of the continuing accuracy of all of the
representations and. warranties or covenants of AAF an FDG as set forth herein.
12. Brokerage Commission. Each Party repr
a broker, salesman, agent, or other person u1 co
agree to hold harmless and indemnify the other PE
(including reasonable attorneys' fees before aria
for any compensation, commissions, or charg
representation of such Party in connection w' •h
Property. The foregoing warranties -and ' em.
termination of this Agreement, as applicable,
7
s is to the other Parties that it has not dealt with
ection with this transaction and covenant and
ties from and against any and all costs, expenses
at trial, on appeal and In banlcrttptcy) or liability
claimed by any broker or agent with respect to
the exchange of the City Property for the. FDG
iifieations will survive delivery of the deed or
13. AAF Is Representations and Warranties. AAT' hereby represents and warrants that as of
the date hereof;.
13.1 AAF is organized and in good standing under the laws of the State of Delaware.
13.2 AAF has the full right, power and authority to enter into this Agreement and AAF
has the full right, power and authority to carry out its obligations hereunder and the execution an�
delivery of, and the performance of all obligations under this Agreement by AAF does not and wi
not require .any consent or approval of any person or entity other than AAF,
13.3 There are no actions, suits. or proceedings pending or to the knowledge of AF
threatened against or affecting AAF that would impede or otherwise impair its ability to perf m its
obligations under this Agreement.
13.4 The representations and warranties contained in this Agreement shall b true and
correct as of the Closing Date in all material respects and AAF shall, at Closing, execute a
certificate to such effect. The representations and warranties set forth herettx shall survi .e Closing.
14. FDG's Representations and Warranties. FDG hereby represents and war ants that as of
the date hereof;
14.1 FDG is organized and in good standing under the laws of the Stat of Delaware.
14.2 FDG has the full right,. power and authority to exchange the G Property for the
City Property as provided in this Agreement and FDG has thefull right, , ower and authority to
carry out its obligations hereunder and the. execution,and delivery of, an the performance of all
obligations under this Agreement by FDG does not and will not require y consent or approval of
any person or entity other than FDG.
14.3 There are no actions, suits or proceedings pending r to the knowledge of FDG
threatened against or affecting FDG or the FDG Property that woul impede or otherwise impair its
ability to perforin its obligations under this Agreement.
14.4 The representations and warranties contained ii this Agreement shall be true and
correct as of the Closing Date in all material respects an FDG shall, at Closing, execute a
certificate to such effect. The representations and warranties t forth herein shall survive Closing..
15. City's Representations and Warranties. The C` hereby represents and warrants that as
of the date hereof:
15.1 The City has the full right, power and uthority to exchange the FDG Property for
the City Property -as provided in this Agreement and t e City has the full fight, power and authority
to carry out its obligations hereunder and the oxo -'on and delivery o� and the performance of all
obligations under this Agreement by the City floes lot and will not require any consent or approval
of any person or entity other than the City.
1.5.22 There are no actions, suits or proceedings pending or to the knowledge of the City
threatened against or affecting the City or the City Property that would impede or otherwise impair
its ability to perform'its obligations under this Agreement.
15.3 The representations and warrantiescontained in this Agreement shall b00
a � d
correct as of the Initial Closing Date or Closing Date, as applicable, in all material respects and •he
City shall, at Initial Closing Date or Closing Date, as applicable, execute a certificate to such e ect,
The representations and warranties set forth herein shall survive Closing.
16. Closing. With respect to City Property North and the Crossing Easement AgreetY_ent, the
consummation of that portion of the transaction contemplated hereby (the. "Initial Closi (l ") shall
take- place within thirty (30) days of the Effective Date (the "Initial Closin Dat '). The
consummation of the transaction contemplated hereby for the exchange of the City Pro erty South
for the FDG Property (the "Closing"). shall take place on the earlier of fifteen (15) d ys after the
New Roadway is completed and. open for traffic or March 1, 2017 (the "Closin ate"). If the
Initial Closing takes place, but the Closing does not take place on or before Decemb r 31, 2018, as
may be extended by the parties (the "Deadline', AAF shall pay the City, within f e (5) business
days, the fair market value of the City Property North and the Crossing Easeme t Agreement as
consideration for the City Property North and the Crossing Easement Agreeme t, which shall be
determined by an appraisal process as prescribed by City of Miami Code of Ord' ance,
17. Deliveries at the Exchange Closing.. If this Agreement has not been 46rminated by a Party,
on or before Initial Closing or the Closing, as applicable, the. Parties shall deliver to the Escrow
Agent or the other Party the following items and documents:
17,1 At the Initial Closing, the City shall deliver the following:
(a) A recordable special warranty deed for the Cit Property North (the "City
Property North Deed") sufficient to permit the Title Insurer to insure • tle in AAF as provided for in
Section 8.2 above, subject only to the applicable City Property Pern y ted Encumbrances,
(b) The City shall deliver an affidavit in form r asonably satisfactory to AAF and
the Title Insurer, evidencing that there have been no improv ents or repairs made to the City
Property North within ninety (90) days preceding the Initia Closing. Date, except as otherwise
disclosed to AAF and Title Insurer in writing, and sufficient n form and content to cause the Title
Insurer to eliminate any exception for mechanics liens fro the title policy. Such affidavit shall
also evidence that the City is in sole possession of the ity Property North, and shall contain a
certification that the City is not a foreign person for p poses. of Section 1445, Internal Revenue
Code and such other certifications as may be sufficient for the Title Insurer to insure the "gap" at
the Initial Closing.
(c) The City shall deliver po
(d) The City shall deliver a r
to permit the Title Insurer to insure title in AAF
the applicable City Property Permitted Encumbn
9
of the City Property North to AAF.
'rdable Crossing Easement Agreement sufficient
provided for u1 Section, above, subject only to
(e) Any and all other documentation as may be reasonably required to
consummate the transactions contemplated in this Agreement :for the Initial Closing.
17.2 At the Closing, the following shall be delivered;
(a). The City shall deliver a recordable special warranty deed (the "°
Exchange Deed") sufficient to permit the Title Insurer to insure title in FDG as provided for
Section 8.2 above, subject only to the City Property Permitted Encumbrances. �
(b) FDG shall deliver a recordable special warranty deed (the "FD(
Deed") sufficient to permit the Title Insurer to insure title- in the City as provided for un.
above, subject only to the FDG Property Permitted Enneumbrances.
(c) The City shall deliver an affidavit in form reasonably satisfactory to FDG and
the Title Insurer, evidencing that there have been no improvements or repairs made the City
Property South within ninety (90) days preceding the Closing Date, except as otherwise isclosed to
FDG and Title Insurer in writing, and sufficient in forma, and content to cause the T' e Insurer to
eliminate any -exception for mechanics liens from the title policy. Such affidavit shal also evidence
that the City is insole possession of the City Property South, and shall contain a rtifncation .that
the City is not a foreign person for purposes of Section 1445, Internal Revenue Cc e and such other
certifications as may be sufficient for the Title Insurer to insure the "gap" at Clos' g.
(d) FDG shall deliver an affidavit in form reasonably satisf ctory to the City and
the Title Insurer, evidencing that there have been no improvements or rep ' s made to the FDG
Property within ninety (90) days preceding the Closing Date, except as of erwise disclosed to the
City and Title Insurer in writing, and sufficient in :form and content to use the Title Insurer to
eliminate any exception for mechanics liens from the title policy. Such a fndavit shall also evidence
that FDG is in sole possession of the, FDG Property, and shall conntain a. ertifncation that FDG is not
a foreign person for purposes of Section 1445, Internal Revenue Cod and such other certifications
as may be sufficient for the Title Insurer to insure the "gap" at Closin
(e) The City shall deliver possession of the Cit/Property to FDG at Closing and
FD -G shall deliver possession of the FDG Property to the City at -¢losing.
(f) Any and all other documentation may be reasonably required to
consummate the transactions contemplated in this Agreemen�.
18. Closing Costs. With respect to the transactions c ntemplated herein, AAF shall pay for (i)
recording fees and documentary stamps with respect o the City Property North Deed and the
Crossing Easement Agreement; (ii) Owner's title insur nce policy premium and related title search
and commitment fees with respect to its acquisition f the City Property North and the Crossing
Easement Agreement; (iii) the Survey of City Pr perty North and the Existing Roadway and
surveyor certifications, if any; (iv) all costs of A '.s inspections hereunder; (v) AAF's attorney's
fees; and (vi) .all costs of financing for AAF'.s p rchase of the City Property North, if any. FDG
shall pay for (i) recording fees :and documentar stamps for the. conveyance of the City Exchange
Deed; (ii) Owner's title insurance policy premh and related title search and commitment fees with
respect to its acquisition of the City Propert South; .(iii) the Survey of City Property South and
surveyor certifications, if any; (iv) all costs, f FDG's inspections hereunder; (v) FDG's attorney's
10
fees; (vi) all costs of financing for FDG's purchase of the City Property South, if any, (vii)
recording fees and docurnentary stamps with respect to the FDG Exchange Deed,. (viii) Owner's title
insurance policy premium and related title search and commitment fees with respect to the City's
acquisition of the FDG Property; and (ix) the Survey of FDG Property. The: City shall pay for (i) all
costs of the City's inspectionshereunder and (ii) the City's attorney's fees. All parties acknowl g
that the City is exempt from paying documentary stamps tax, Taxes and other Gusto arily
apportioned items shall be prorated or apportioned as of Closing and in accordance with.§ 6.295,
Florida Statutes (2010.. If the Tax Collector will not accept payment .of taxes prior to its ue date,
the Escrow Agent shall hold the estimated taxes for the current year in its trust account id shall be
obligated to pay the taxes as soon as payment can be made. FDG is responsible for pa .ing all prior
and current taxes through the date of closing and agrees to indemnify and hold the Cit harmless for
any. -and all outstanding real property taxes owed on the FDG Property. This indent ' y shall survive
closing. /
19. Notices. Any notice, demand, consent, authorization, request, Approval or other
communication that any party is required, or may desire, to give to or make pon the other party
pursuant toy this Agreement ("Notice") shall be effective and valid only if in iting, signed by the
party giving Notice and delivered personally to the other parties or sent by i) overnight courier or
delivery service (e.g., Federal Express); or (ii) certified mail of the Unit d States Postal Serviee,
postage prepaid and return receipt requested, addressed to the other p y as follows (or to such
other place as any party may by notice to the others specify):_.
To AAF: All Aboard Florida - Operations LLC
4f'
2855 S. LeJeune Road, ' Floor
Coral Gables, Florida 33134
Attention: Brian Kronberg
Email: bsian,lcronbergpa allaboard� orida.com
With a copy to: Florida East Coast Industries, L C
2855 S. LeJeune Road, 4��' Flo r
Coral Gables, Florida 33134
Attention: K-olleen Cobb
Email: kolleen.cobb@fecKcom
To AAF: FDG Rail Holdings 25 LC
2855 S. LeJeune Ro , 4tl' Floor
Coral Gables, Flor' a 33134
Attention: Brian •onberg
Email: brian.lc • nbergAallaboardflorida.com
With a copy to: Florida Eas Coast Industries, LLC
285, S. L/a eune Road, 4111 Floor
Coral Gables, Florida 33134
Attention: Kolleen Cobb
Email: lcolleen.cobb@feci. com
To the City: Daniel J. Alfonso
City Manager
11
City of Miami
444 SW 2"' Ave, loll Floor
Miami., Florida 33130
With a copy to: Victoria Mondez
City Attorney
City of Miami
444 SW 2"s Ave, 9"' Floor
Miami, Florida 33130
To Escrow Agent; First American Title Insurance Company
Southeast Financial Center
200 South Biscayne Boulevard, Suite 2930
Miami, FL 33131
Attention: Koren Marti
Notice shall be deemed given when received, except that if delivery is not. accepted, Notice
shall be deemed given on the date of such non-acceptance.
20. Remedies, In the event that AAF or FDG, prior to Closing, fails toperfo m any covenant,
agreement or obligation hereof as. provided herein, or in the event that there is all
breacli or failure
of any warranty or representation .by AAF or FDG prior to Closing, then the ity may as its sole
remedy treat this Agreement as being in full force and effect with a right to n action for specific
performance. The City waives all other remedies that may be available. to i- at law or equity for
breaches occurring prior to Closing,
In the event that the City, prior to Closing, fails 'to perform an covenant,. agreement or
obligation hereof as provided herein, or in the event that there is an breacli or failure of any
warranty or representation by the City prior to Closing, then AAF or YrDG may as its sole remedy
treat this Agreement as being in frill force and effort with ari t to an action for specific
performance,
21, Escrow.
(a) Duties. By joining in the execution of this. greement, Escrow Agent agrees to
comply with the terms hereof insofar as they apply to Escro Agent, Upon receipt, Escrow Agent
will hold the documents and funds delivered to Escrow Age t pursuant to this Agreement in trust, to
be disposed of in accordance. with the provisions .of this A reement.
(b) Indemnity. Escrow Agent will
resulting from the gross negligence or willful
involved in any controversy or litigation, the part
hold Escrow Agent free and harmless from and
expense, including costs of reasonable attorneys'
nnay incur by reason of or in connection with su
:finally determined that such controversy a
negligence or willful misconduct, If the in em
/ahist
6 liable to .either party except for claims
educt of Escrow Agent, If the escrow is.
reto will jointly and severally indemnify and
any acid all loss, cost, damage, liability or
o which Escrow Agent may be put or which
i controversy or litigation, except to the extent it is
litigation resulted from Escrow Agent's gross
pity amounts payable hereunder results from the
12
fault of AAF, FDG or the City (or their respective agents), the party at fault will pay, and hold th
other party harmless against, such amounts.
(c). Withdrawal. No party will have the right to withdraw any monies or doe unernts
deposited by it with Escrow Agent prior to the Closing or termination of this Agreement cepa in
accordance with the temps of this Agreement. Escrow Agent will not be responsible for Iny delay
in the electronic wire transfer of funds.
(d) Disbursement. In the event of -any disagreement between the parties h eto resulting
in conflicting instructions to, or adverse claims or demands upon the Escrow Agr ement, or if a
written objection is filed with Escrow Agent, or Escrow Agent otherwise is in doubt as to its duties,
Escrow Agent may continue to hold the funds or documents in escrow until the atter is resolved
either by joint written direction from the parties or by the Circuit Court havin jurisdiction of the
dispute or the Escrow Agent may interplead the same in the- Circuit Court an be relieved 'of any
and all liability therefor, In any action or proceeding. regarding this Agreetne t brought by Escrow
,Agent or to which Escrow Agent is made a party, Escrow Agent will be entitled to recover its
reasonable costs and attorneys' fees through appeal,
22. State Rep.uired Disclosure. The following disclosure is require to be made by the laws of
the State of Florida:
RADON GAS: Radon is a naturally occurring radioactive ga that, when it has accumulated
in a building in sufficient quantities, may present health risks to per ons who -are exposed to it over
time. Levels of radon that exceed federal and .state guidelines ave been found in buildings in
Florida. Additional information regarding rddon and radon to ing may be obtained fiom your
county public health unit.
23. Governing Lavv. The parties hereto expressly agree at the terms and conditions hereof,
and the subsequent performance hereunder, shall be construe and controlled iii accordance with the
laws of the State of Florida.
24. Entire Agreemen . This Agreement contains tl e entire Agreement between the parties
hereto and no statement or representation of the respect' parties hereto, their agents or employees,
made outside of this Agreement, and not contained her , shall form any part hereof or be binding
upon the other party hereto. This Agreement shall n be changed or modified except by written
instrument signed by the parties hereto.
25. Further Assurances. Each party hereto sl 11, from time to time, execute and deliver such
:further instruments as the other party or its coups may reasonably request to effectuate the intent
of tlus Agreement.
26. Captions, Captions used in this Agree ent .are for convenience of reference only and shall
not affect the construction of any provision o this Agreement. Whenever used, the singular shall
include the plural, the plural shall include he singular, and the neuter gender shall include all
genders.
27. Assignment. Neither Party may assign its interest in this Agreement without the prior
written consent of the other Party, which consent may be granted or withheld in such Party's sole
13
and absolute discretion; provided however, AAF or FDO may assign its interest in this Agree ent
to an majority owned affiliate, defined as. an af["iliate that has the same indirect parent comp , or
one that shares at least 75% of the .corporate make-up, without the prior written consent of th City
so long as the 'City receives an executed assignment and assumption of this Agreement i form
reasonably acceptable to the City at least five (5) business days prior to Closing.
2$. Time is' of the Essence. Time is of the esseslce of this Agreement. If any date eferenoed
herein falls on a Saturday, Sunday -or legal holiday,. then such date automatically is ext dcd to the
next business day.
29. No Recording.. Neither party may record this Agreement or any m.emorandu thereof.
30.. Governing Law; Venue. Tltiis Agreement shall be ,governed by, inter reted under, and
construed and enforced in accordance with the laws of State of Florida,ne Parties hereby
irrevocably submit generally and unconditionally for itself .and in respect o' its property to the
jurisdiction of any state court or any United States federal court sitting In iami-Dade County,
Florida.
31. 'Waiver of AnT Trial. The Parties hereby knowingly and u ncon tionally, with advice of
counsel, waive any and all right to demand a jury trial in any action for the interpretation or
enforcement of this Agreement.
14
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the dates
written below their respective names,
Signed, sealed and delivered FDG:
in the presence of-,
Witnesses as to FDG
Signed, sealed and delivered
in the presence of
Witnesses as to AAF
FDG Rail Holdings. 25 LLC, a D
limited liability company
By.:
Kolleen Cobb, Vice President
Date;
AAP;
All Aboard Florida - 0
Delaware limited liability co
By:
Kolleen Cobb, Vice l
Date:
[Signatures continue on next page]
0
15
LLC, a
AGREED TO AND ACCEPTED
Executed by CITY OF MIAMI, a municipal
corporation of the State of Florida
By:
Date:
ATTEST:
Todd B. Hannon, City Clerk
APPROVED AS TO FORM AND
CORRECTNESS:
Victoria Mendez
City Attorney
Daniel J. Alfonso, City Manager
APPROVED AS TO
REQUIREMENTS
Ann -Marie Sharpe, Director
Risk Management Adminis�
1.6
Escrow Agent hereby joins in this Agreeme
agreement to the provisions of.Sections 8.2,
17
EXHIBIT D
EXISTING ROADWAY
`
EXHIBIT E
EXHIBIT A
nwo,rnrwrir"T.T riv &-irrx7 Tm nDr, DlrlV CnTT9rU
DI
(TRACTSF&G'
EXIIIBrr B
NW Ist: Ave
EXHIBIT C
DESCRIPTION OF FDG PROPERTY
mF.DG Pmporty