HomeMy WebLinkAboutExhibit BDEVELOPMENT AGREEMENT BETWEEN CITY OF
MIAMI, FLORIDA AND FLAGLER HOLDING GROUP,
INC., REGARDING THE MIAMI DESIGN DISTRICT
RETAIL STREET SPECIAL AREA PLAN AND RELATED
DEVELOPMENT.
THIS AGREEMENT is entered this day of , 20 by and between,
Flagler Holding Group, Inc., a Florida profit corporation, (hereinafter, "Owner" or "Developer")
and the CITY OF MIAMI, FLORIDA, a municipal corporation and subdivision of the State of
Florida ("City") (Developer and the City together referred as the "Parties"),
WITNESSETH:
WHEREAS, the Developer holds fee simple title to approximately 0.35 acres of property
situated on the west side of NE 2nd Avenue between NE 42"d and 431d Streets as more particularly
described in Exhibit "A" (the "Property"), and located within the Miami Design District
("District") in the City; and
WHEREAS, the District has become an internationally recognized center for furniture
design and a burgeoning home for the arts, high fashion, restaurants, and a center for creative
employment; and
WHEREAS, the emerging status of the District is consistent with the City's vision to
develop a world class destination for the arts, fashion, and design, and, as such, the City wishes to
encourage redevelopment within the District; and
WHEREAS, the City, under a process outlined in the Miami 21 Zoning Code ("Miami
21 ") which allows parcels of more than nine (9) abutting acres to be master planned to allow greater
integration of public improvements and infrastructure, and greater flexibility so as to result in
higher or specialized quality building and streetscape design, previously approved the Miami
Design District Retail Street Special Area Plan ("SAP") via the adoption of Ordinance 13334 on
July 26`h, 2012, and subsequently amended the SAP via the adoption of Ordinance 13414 on
October 24 2013, Ordinance 13505 on March 12, 2015, and Ordinance 13603 on April 28, 2016;
and
WHEREAS, Section 3.9.1 of Miami 21 and the Florida Local Government Development
Agreement Act, s. 163.3220 through 163.3243, Florida Statutes (2018), requires development
within a Special Area Plan to be governed by a Development Agreement between the property
owner(s) and the City; and
WHEREAS, on September 5, 2014, the Developer, along with certain other developer
parties, and the City, entered into an Amended and Restated Development Agreement for the SAP,
pursuant to Ordinance 13415, as recorded in Official Records Book 29314, Page 1880, of the
Public Records of Miami -Dade County, Florida, as subsequently amended by that certain Partial
Release and Amendment to the Amended and Restated Development Agreement, as recorded in
Official Records Boole 30568, Page 918, of the Public Records of Miami -Dade County, Florida,
(the "Master SAP Development Agreement"); and
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WHEREAS, the parties to the Master SAP Development Agreement have agreed to
release Developer from the Master SAP Development Agreement, on the condition that Developer
enter into this Agreement with the City, in order to ensure that redevelopment of the Property is
carried out in a fashion consistent with the goals and standards for the District as set forth under
and governed by the SAP; and
WHEREAS, the City and Developer wish for development within the District, including
at the Property, to proceed substantially in accordance with the Miami Design District Retail Street
SAP Regulating Plan and Design Concept Book, as most recently modified on April 28, 2016, by
the adoption of Ordinance No. 13603, attached hereto as Exhibit "B" ("Regulating Plan and
Concept Book "); and
WHEREAS, the City and Developer wish for the redevelopment of the Property to
proceed in a manner consistent with the Comprehensive Plan; and
WHEREAS, lack of certainty in the approval of development can result in a waste of
economic and land resources, discourage sound capital investment planning and finance, escalate
the cost of housing and development, and discourage commitment to comprehensive planning; and
WHEREAS, assurance to a developer that it may proceed in accordance with existing laws
and policies, subject to the conditions of a development agreement, strengthens the public planning
process, encourages sound capital improvement planning and financing, assists in assuring there
are adequate capital facilities for the development, encourages private participation in
comprehensive planning, and reduces the economic costs of development; and
WHEREAS, the City Commission, pursuant to Ordinance No, _, adopted on
, has authorized the City Manager to execute this Agreement upon
substantially similar terms and conditions set forth herein below, and the Developer has been duly
authorized to execute this Agreement upon the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter contained, the parties mutually agree and bind themselves as set forth herein:
Section 1. Consideration. The Parties hereby agree that the consideration and obligations
recited and provided for under this Agreement constitute substantial benefits to both parties and
thus adequate consideration for this Agreement.
Section 2. Rules of Legal Construction.
For all purposes of the Agreement, unless otherwise expressly provided:
(a) A defined term has the meaning assigned to it;
(b) Words in the singular include the plural, and words in plural include the singular;
(c) A pronoun in one gender includes and applies to other genders as well;
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(d) The terms "hereunder", "herein", "hereof, "hereto" and such similar terms shall
refer to the instant Agreement in its entirety and not to individual sections or
articles;
(e) The Parties hereto agree that this Agreement shall not be more strictly construed
against either the City or the Developer Parties, as all parties are drafters of this
Agreement; and
The recitals are true and correct and are incorporated into and made a part of this
Agreement. The attached exhibits shall be deemed adopted and incorporated into
the Agreement; provided however, that this Agreement shall be deemed to control
in the event of a conflict between the attachments and this Agreement.
Section 3. Definitions. Capitalized terms which are not specifically defined herein shall have
the meaning given in Miami 21.
"Agreement" means this Agreement between the City of Miami and Flagler Holding
Group, Inc.
"City" means the City of Miami, a municipal corporation and political subdivision of the
State of Florida, and all departments, agencies, and instrumentalities subject to the
jurisdiction thereof.
"Code" means the City Charter and Code of Ordinances in effect as of the Effective Date.
"Comprehensive Plan" means the comprehensive plan known as the Miami
Comprehensive Neighborhood Plan, adopted by the City pursuant to Chapter 163, Florida
Statutes (2018), meeting the requirements of Section 163.3177, Florida Statutes (2018) and
Section 163.3178, Florida Statutes (2018), which is in effect as of the Effective Date.
"Concept Book" means the Miami Design District Retail Street SAP Concept Book
attached hereto as part of Exhibit "B".
"Developer" means Flagler Holding Group, Inc.
"Effective Date" means the date of recordation of this executed, Agreement in the public
records of Miami -Dade County.
"Existing Zoning" means (a) the Miami 21 Code, January 2018, as amended from time to
time, specifically including the Miami Design District Retail Street SAP Regulating Plan
and Concept Book, as amended, as Appendix F, Volume 2 to the Miami 21 Code, and
related modifications to the Transect designations of lots within the Miami Design District
Retail Street SAP, and (b) the provision of the Charter and City Code of Miami ("Code")
which regulate development, specifically including but not limited to Chapters 10, 13, 22,
23, 36, 54, 55 and 62 of the Code, as amended, through the Effective Date, which together
comprise the effective land development regulations governing the development of the
property within the SAP.
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"saws" means all ordinances, resolutions, regulations, comprehensive plans, development
regulations, and rules adopted by a local government affecting the development of land.
"Master SAP Development Agreements" means that certain Amended and Restated
Development Agreement for the SAP, entered into pursuant to Ordinance 13415, as
recorded in Official Records Book 29314, Page 1880, of the Public Records of Miami -
Dade County, Florida, as subsequently amended by that certain Partial Release and
Amendment to the Amended and Restated Development Agreement, as recorded in
Official Records Book 30568, Page 918, of the Public Records of Miami -Dade County,
Florida.
"Owner" has the same meaning as Developer.
"Parties" means Developer and the City, both of whom are signatories to this Agreement
"Property" means the parcel more specifically described in Exhibit "A" to this
Agreement and which is more commonly referred to as 4218 NE 2nd Avenue, Miami, FL
33137 (Folio No. 01-3124-024-0940), which is within the SAP.
"Public Facilities" means major capital improvements, including, but not limited to,
transportation, sanitary sewer, solid waste, drainage, potable water, educational, parks and
recreational, streets, parking, and health systems and facilities.
"Regulating Plan" means the Miami Design District Retail Street SAP Regulating Plan
attached hereto as part of Exhibit "B".
"Special Area Plan" or "SAP" means the Miami Design District Retail Street Special
Area Plan, as amended from time to time, including the Regulating Plan and Concept Book.
"Term" means the duration of this Agreement which shall commence on the Effective
Date and continue in force for 30 years thereafter, or the expiration or termination of the
Master SAP Development Agreement, whichever is earlier, consistent with the authority
provided pursuant to s. 163.3229, Florida Statutes (2018).
Section 4. Purpose. The purpose of this Agreement is for the City to authorize Developer to
redevelop the Property pursuant to the Miami Design District Retail Street SAP. This Agreement
will establish, as of the Effective Date of this Agreement, the land development regulations which
will govern the development of the Property, thereby providing the Parties with additional
certainty during the development process. This Agreement satisfies the requirements of Article
3.9.1(f) of Miami 21.
Section 5. Intent. Developer and the City intend for this Agreement to be construed and
implemented so as to effectuate the purpose of the Miami Design District Retail Street SAP, this
Agreement, the Comprehensive Plan, Existing Zoning, and the Florida Local Government
Development Agreement Act, s. 163.3220 - 163.3243, Florida Statutes (2018).
Section 6. Applicability. This Agreement only applies to the SAP Property identified in
Exhibit "A."
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Section 7. Tenn of Agreement, Effective Date and Binding Effect. This Agreement shall have
a term of thirty (30) years from the Effective Date and shall be recorded in the public records of
Miami -Dade County and filed with the City Clerk. The term of this Agreement may be extended
by mutual consent of the Parties subject to a public hearing, pursuant to s. 163.3229, Florida
Statutes (2018). This Agreement shall become effective on the Effective Date and shall constitute
a covenant running with the land that shall be binding upon, and inure to, the benefit of the parties,
their successors, assigns, heirs, legal representatives, and personal representatives.
Section 8. Permitted Development Uses and Building Intensities.
(a) Miami Design District Retail Street SAP Designation. The City has designated
the Property as part of the Miami Design District Retail Street SAP on the official
Zoning Atlas of the City, pursuant to the applicable procedures in Miami 21. The
Regulating Plan and Concept Book are attached as Exhibit "B". In approving the
Miami Design District Retail Street SAP, the City has determined that the uses,
intensities and densities of development permitted thereunder are consistent with
the Comprehensive Plan and the Existing Zoning.
(b) Density, Intensity, Uses and Building Heights.
i. As of the Effective Date and pursuant to the Special Area Plan, the densities
and intensities proposed for the SAP shall be consistent with the Existing
Zoning and consistent with the Comprehensive Plan.
ii. As of the Effective Date and pursuant to the Special Area Plan, the uses
proposed for the SAP shall be consistent with the Existing Zoning and
consistent with the Comprehensive Plan.
Ill. As of the Effective Date and pursuant to the Special Area Plan, the building
heights proposed for the SAP shall be consistent with the Existing Zoning
and consistent with the Comprehensive Plan.
iv. Nothing herein shall prohibit Developer from requesting a change of
zoning, pursuant to the requirements of Article 7 of Miami 21, to increase
the density or intensity of development permitted on the Property, as long
as such increase in density or intensity is consistent with the Comprehensive
Plan.
v. In the event the City should amend its Comprehensive Plan to permit the
transfer of densities within a specified area so as to permit densities in
excess of the density limits set forth in a particular Future Land Use Map
category, nothing herein shall prohibit the Developer from requesting such
a density transfer.
(c) Environmental. The City and Flagler agree that Flagler will comply with the intent
and requirements of Chapter 17 of the City Code, subject to the modification set forth herein, by
performing tree replacement within the within the boundaries of the SAP where possible.
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(1) Off-site replacement trees. Notwithstanding the requirements of Sec. 17-
6.(e) of the City Code, where replacement within the Property is not
physically possible, Flagler may enter into an agreement with the City to
perform tree replacement on public property in the following order of
priority: (i) within the boundaries of the Special Area District; (ii) within a
one (1) mile radius of the boundaries of the Special Area District; or (iii)
within any City park. Particular emphasis shall be paid to replacement
along gateway corridors within and surrounding the boundaries of the
Special Area District, specifically N. Miami Avenue, N.E. 2"d Avenue, NE
36th Street, NE 1 st Avenue, and Biscayne Boulevard. Further emphasis shall
also be placed on the possible placement of trees within the boundaries of
the following neighboring communities: (i) Buena Vista Heights; (ii) Buena
Vista East; and (iii) Brentwood. The City further agrees to facilitate the
permitting and planting of replacement trees on all publicly owned property
within the aforementioned areas and within City parks. Flagler further
agrees to work with the residents and representatives of the aforementioned
communities to identify locations for and coordinate the placement of said
trees. If Flagler undertakes any tree replacement off-site for the Property,
it shall agree to water, trim, root, prune, brace, or undertake any other
necessary maintenance as may be required by the Public Works Department
for a period of not greater than thirty (30) days after installation. If Flagler
undertakes any off-site tree replacement, it further agrees to warrant each
off-site replacement tree for a period of one (1) year after the date of
installation.
(2) Tree installation, maintenance and guarantee. For all trees placed at the
Property or its abutting right-of-way, Flagler shall install any needed
irrigation and corresponding water meters to support the growth of trees
located within the right-of-way. If Flagler undertakes any tree replacement
for the Property or its abutting right-of-way, it shall agree to water, trim,
root, prune, brace, or undertake any other necessary maintenance as may be
required for trees located within the boundaries of the SAP. If Flagler
undertakes any off-site tree replacement or any such tree placement within
the SAP boundaries, it further agrees to warrant each such tree for a period
of one (1) year after installation.
(3) Tree replacement chart. The tree replacement chart below shall be used to
determine whether Flagler has satisfied the tree replacement requirements
for any particular parcel of land asset forth in Sec. 17-6.(a) of the City Code.
The chart below shall replace and supersede Chart 17.6.1.1. in the City
Code.
Tree Replacement Chart
Total diameter of tree(s) to be removed
(sum of inches at DBH)
Total inches of replacement DBH
required (12' minimum tree height)
211-311
211
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411-611
411
711-1211
8"
012"
1311-1811
4
19"- 24"
1611
2511- 30"
20"
3111-3611
24"
3711- 42"
28"
4311-4811
32"
4911- 60"
4011
To determine whether the replacement requirements have been satisfied,
calculate the total sum in inches of the diameter of the trees removed. The
size of the replacement trees diameter at breast height (DBH) must equal
the total inches of replacement DBH set forth in the above chart. Diameter
measurement shall be rounded up to the nearest inch. If the sum of the
diameter of trees to be removed exceeds a total of 60 inches, the additional
inches shall be added cumulatively from the top of the chart, down to the
bottom of the chart, to calculate the number of DBH for replacement trees.
(4) Tree species. The chart set forth below shall replace and supersede Chart
17.6.2.1. in the City Code. All other requirements set forth in Sec. 17-6.(b)
of the City Code shall apply within the boundaries of the SAP.
Required total DBH for replacement
trees
Required minimum number of species
2211-4011
2
41"- 100"
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101" or greater
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(5) Tree installation. A Developer Party shall install trees opportunistically
within the public right-of-way, subject, at all times, to approval by the
Department of Public Works.
Section 9. Public Facilities. As of the Effective Date, the property owners within the SAP
have conducted an extensive analysis of the Public Facilities available to serve the SAP, including
the Property. In the event that the Existing Zoning and/or the Comprehensive Plan require
Developer to provide Public Facilities to address any deficiencies in required levels of service
occasioned solely by fixture development on the Property (independent of other properties within
the SAP and based solely on the future development of the Property itself), Developer shall provide
such Public Facilities consistent with the timing requirements of s. 163.3180, Florida Statutes
(2018), or as otherwise required by Chapter 13 of the City Code, if applicable. Developer shall be
bound by the City impact fees and assessments in existence as of the Effective Date of this
Agreement related to development of the Property.
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Section 10. Project Approval.
(a) Future Development Review. Future development on the Property shall proceed
pursuant to and in accordance with the processes and standards established in the
Regulating Plan and Concept Book, attached as Exhibit 1113.11 The criteria to be
used in determining whether future development shall be approved are: (i)
consistency with the Comprehensive Plan; (ii) consistency with this Agreement;
and (iii) substantial compliance with the Miami Design District Retail Street SAP.
(b) Prohibition on Downzoning.
i. The Comprehensive Plan, the Existing Zoning, and this Agreement shall
govern the development of the Property, designated as a part of the SAP,
for the duration of this Agreement. The City's laws and policies adopted
after the Effective Date may be applied to the Property only if the
determinations required by s. 163.3233(2), Florida Statutes (2018) have
been made following a public hearing or as otherwise provided herein.
ii. Pursuant to s. 163.3233(3), Florida Statutes (2018), this prohibition on
downsizing supplements, rather than supplants, any rights that may vest to
Developer under Florida or Federal law. As a result, Developer may
challenge any subsequently adopted changes to land development
regulations based on (a) common law principles including, but not limited
to equitable estoppel and vested rights, or (b) statutory rights which may
accrue by virtue of Chapter 70, Florida Statutes (2018).
Section 11. Alcoholic Beverage Sales. The Master SAP Development Agreement provides for
two (2) Retail Specialty Centers for the SAP, as defined in Section 12 of the Master SAP
Development Agreement. Each Retail Specialty Center is limited to five (5) establishments as
further described in Section 12 of the Master SAP Development Agreement. Flagler acknowledges
that it is not entitled to utilize any of the rights, licenses, establishments or other benefits of the
Retail Specialty Center provided in the Master SAP Development Agreement. Notwithstanding
the above, a certificate of use and/or occupancy may be issued for an alcohol service establishment
at the Property subject to the requirements as set forth in in the City Code, including Chapter 4 of
the City Code, and Miami 21.
Section 12. Street Right-of-Wa�provements. In order to foster a uniform aesthetic within
the SAP, Developer agrees to coordinate with other property owners within the boundaries of the
SAP in order to replicate or complement the street right-of-way improvements implemented
elsewhere within the boundaries of the SAP. Developer agrees to construct and maintain, at its
sole cost and expense, any non-standard improvements within the right-of-way that are adjacent
to and abutting the Property owned by the Developer.
Section 13. Open Space Contribution. Developer shall strive to provide a minimum of ten
percent (10%) of Open Space on the Property, but in no event shall provide less than six and one-
half percent (6.5%) of Open Space consistent with the requirements set forth in the Regulating
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Plan and Concept Book. Should the Open Space on the Property at completion of all phases of
the proposed development or within five (5) years of the Effective Date of this Agreement,
whichever is earlier, equal less than the aforementioned 10% goal, then Developer shall make a
cash contribution to the City's Public Parks and Open Space Trust Fund, as contemplated under
Article 3.14.4(b)(3) of Miami 21, at the rate of $10.81 per square feet for the square footage
comprising the difference between the 10% Open Space goal and the actual Open Space actually
provided at or above the minimum requirement of 6.5% of Open Space on the Property.
Section 14. Local Development Pen -nits.
(a) Development of the Property in accordance with the SAP is contemplated by
Developer. Redevelopment of the Property may require additional permits or
approvals from the City, Miami -Dade County, State or Federal government and any
division thereof. Subject to required legal process and approvals, the City shall
make a good faith effort to take all reasonable steps to cooperate with and facilitate
all such approvals. Such approvals include, without limitation, the following
approvals and permits and any successor or analogous approvals and pen -nits:
i. Subdivision plat and/or wavier of plat approvals;
ii. Covenant, Unity of Title, or Covenant in Lieu of Unity of Title acceptance
or the release of existing unities or covenants;
iii. Building permits;
iv. Certificates of use and/or occupancy;
v. Stormwater Permits; and
vi. Any other official action of the City, Miami -Dade County, or/and other
government agency having the effect of permitting development of the
Property.
(b) In the event that the City substantially modifies its land development regulations
regarding site plan approval procedures, authority to approve any plans, buildings,
or development on the Property shall be vested solely in the City Manager, with the
recommendation of the Planning Director or any other relevant party. Any such
site plan shall be approved if it meets the requirements and criteria of the Existing
Zoning, the Comprehensive Plan, and the terms of this Agreement.
Section 15. Necessity of Complying with Local Rejzulations Relative to Development Permits.
The Parties agree that failure of this Agreement to address a particular permit, condition, fee, term,
license, or restriction in effect on the Effective Date shall not relieve Developer of the necessity of
complying with the regulation governing said permitting requirements, conditions, fees, terms,
licenses, or restrictions.
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Section 16. Job Creation and Employment Opportunities. Developer shall consult with the City
and other local economic development entities regarding job training and job placement services
for area City residents seeking employment opportunities with potential employers which will
locate or establish a business on the Property.
(a) Construction Employment. Developer shall use diligent, good faith efforts to
work with the City in the following areas:
i. Job Sourcing. Developer shall require its general contractor to use diligent,
good faith efforts to work with the City's CareerSource South Florida
Career Center or similar program(s) to source job opportunities for both
skilled and unskilled laborers seeking employment opportunities within the
construction industry.
ii. Local Subcontractor Participation. Developer shall require its general
contractor(s) to use diligent, good faith efforts to award a minimum of
twenty percent (20%) of the hard construction contract costs to
subcontractors located within the City.
iii. Local Workforce Participation, Developer shall require its general
L
contractor(s) to use diligent, good faith efforts to employ a minimum of
twenty percent (20%) of on-site labor from persons residing within the
municipal boundaries of the City.
(b) Restaurant, Retail, Arts, Office, or Hospitality Employment. Developer
anticipates that a number of jab opportunities in the culinary, retail, ails, office, or
hospitality sectors will be generated by development on the Property. The
Developer shall use diligent, good faith efforts to work with Miami Dade College,
through its various institutes, or similar institutions and organizations, in
consultation with the City, to place qualified program graduates in employment
opportunities created by development on the Property.
Section 17. Reservation of Development Rights.
(a) For the term of this Agreement, the City hereby agrees that it shall permit the
development of the Property in accordance with the Existing Zoning, the
Comprehensive Plan, and this Agreement.
(b) Nothing herein shall prohibit an increase in the density or intensity of development
permitted within the SAP or at the Property in a manner consistent with (i) the
Existing Zoning and/or the Comprehensive Plan; (ii) any zoning change
subsequently requested or initiated by Developer in accordance with applicable
provisions of law; or (iii) any zoning change subsequently enacted by the City.
(c) The expiration or termination of this Agreement shall not be considered a waiver
of, or limitation upon, the rights, including, but not limited to, any claims of vested
rights, or equitable estoppel regarding claims arising during the term of this
Agreement; and Developer or its successor or assigns may continue development
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of the Property in conformity with all active development permits or development
orders granted by the City.
Section 18. Annual Review.
(a) The City shall review the development that is subject to this Agreement once every
12 months, commencing 12 months after the Effective Date during the Term of this
Agreement. The City shall begin the review process by giving notice to Developer
a minimum of 30 days prior to the anniversary date of the Agreement, of its
intention to undertake the annual review of this Agreement.
(b) Any information required of Developer during an annual review shall be limited to
that necessary to determine the extent to which the Developer is proceeding in good
faith to comply with the terms of this Agreement.
(c) If the City finds on the basis of competent substantial evidence that Developer has
not proceeded in good faith to comply with the terms of the Agreement, the City
may terminate or amend this Agreement after providing thirty (30) days written
notice to the Developer and shall commence a public hearing before the City
Commission.
Section 19. Notices.
(a) All notices, demands and requests which may or are required to be given hereunder
shall, except as otherwise expressly provided, be in writing and delivered by
personal service or sent by United States Registered or Certified Mail, return receipt
requested, postage prepaid, or by overnight express delivery, such as Federal
Express, to the parties at the addresses listed below. Any notice given pursuant to
this Agreement shall be deemed given when received. Any actions required to be
taken hereunder which fall on Saturday, Sunday, or United. States legal holidays
shall be deemed to be performed timely when taken on the succeeding day
thereafter which shall not be a Saturday, Sunday or legal holiday.
To the City:
With a copy to:
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City Manager
City of Miami
3500 Pan American Drive
Miami, FL 33133
City Attorney
City of Miami
Miami Riverside Center
444 S.W. 2nd Ave., 9th Floor
Miami, FL 33130
Planning & Zoning Director
City of Miami
To Developer:
With a copy to:
Miami Riverside Center
444 S.W. 2"d Avenue, 3"d Floor
Miami, FL 33130
Flagler Holding Group, Inc.
Attn: John Petersen
4218 NE 2"' Avenue, 2"d Floor
Miami, FL 33137
Flagler Holding Group, Inc.
Attn: General Counsel
4218 NE 2"d Avenue, 2"d Floor
Miami, FL 33137
(b) Any party to this Agreement may change its notification address(es) by providing
written notification to the other party pursuant to the terms and conditions of this
section.
Section 20. Exclusive Venue, Choice of Lawic Performance. It is mutually understood
, Specif
and agreed by the Parties that this Agreement shall be governed by the laws of the State of Florida,
and any applicable federal law, both as to the interpretation and performance, and that any action
at law, suit in equity or judicial proceedings for the enforcement of this Agreement or any provision
hereof shall be instituted only in the courts of the State of Florida or federal courts and venue for
any such actions shall lie exclusively in a court of competent jurisdiction in Miami -Dade County.
In addition to other legal rights, the Parties shall each have the right to specific performance of this
Agreement in court. Each party shall bear its own attorney's fees. Each party waives any defense,
whether asserted by motion or pleading, that the aforementioned courts are an improper or
inconvenient venue. Moreover, the parties consent to the personal jurisdiction of the
aforementioned courts and irrevocably waive any objections to said jurisdiction. The parties
irrevocably waive any rights to a jury trial.
Section 21. Voluntary Compliance. The Parties agree that in the event all or any part of this
Agreement is struck down by judicial proceeding or preempted by legislative action, the Parties
shall continue to honor the terms and conditions of this Agreement to the extent allowed by law.
Section 22. No Oral Change or Termination. This Agreement and the exhibits and appendices
appended hereto and incorporated herein by reference, if any, constitute the entire Agreement
between the Parties with respect to the subject matter hereof. This Agreement supersedes any prior
agreements or understandings between the Parties with respect to the subject matter hereof, and
no change, modification, or discharge hereof in whole or in part shall be effective unless such is
in writing and signed by the party against whom enforcement of the change, modification or
discharge is sought. This Agreement cannot be changed or terminated orally.
Section 23. Compliance.. with Applicable Law. Subject to the terms and conditions of this
Agreement, throughout the term of this Agreement, the Parties shall comply with all applicable
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federal, state, or local laws, regulations, codes, ordinances, resolutions, administrative orders,
permits, policies and procedures and orders that govern or relate to the respective Party's
obligations and performance under this Agreement, all as they may be amended from time to time.
Section 24. 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 obligations of such party, enforceable in accordance with its terms.
Section 25. No Exclusive Remedies. No remedy or lection given by any provision in this
Agreement shall be deemed exclusive unless expressly so indicated. Wherever possible, the
remedies granted hereunder upon a default of the other party shall be cumulative and in addition
to all other remedies of law or equity arising from such event of default, except where otherwise
expressly provided.
Section 26. Failure to Exercise Rights not a Waiver; Waiver Provisions. The failure by either
party to promptly exercise any right arising hereunder shall not constitute a waiver of such right
unless otherwise expressly provided herein. No waiver or breach of any provision of this
Agreement shall constitute a waiver of any subsequent breach of the same or any other provision
hereof, and no waiver shall be effective unless made in writing.
Section 27. Events of Default.
(a) Developer shall be in default under this Agreement if Developer fails to perform or
breaches any term(s), covenant(s), or condition(s) of this Agreement which is not
cured within thirty (30) days after receipt of written notice from the City specifying
the nature of such breach; provided, however, that if such breach cannot be
reasonably cured within thirty (30) days, then Developer shall not be in default if it
commences to cure such breach within thirty (30) days and diligently prosecutes
such cure to completion.
(b) The City shall be in default under this Agreement if the City fails to perform or
breaches any term, covenant, or condition of this Agreement and such failure is not
cured within thirty (30) days after receipt of written notice from Developer
specifying the nature of such breach; provided, however, that if such breach cannot
be reasonably cured within thirty (30) days, then City shall not be in default if it
commences to cure such breach within thirty (30) days and diligently prosecutes
such cure to completion.
(c) It shall not be a default under this Agreement if either party is declared bankrupt by
a court of competent jurisdiction. All rights and obligations in this Agreement shall
survive such bankruptcy of either party. The Parties hereby forfeit any right to
terminate this Agreement upon the bankruptcy of the other party.
(d) The default of a successor or assignee of any portion of Developer's rights
hereunder shall not be deemed a breach by Developer.
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Section 28. Remedies Upon Default.
(a) Neither party may terminate this Agreement upon the default of the other party,
except as provided in Section 18(c) herein, but shall have all of the remedies
enumerated herein.
(b) Upon the occurrence of a default by a party to this Agreement not cured within the
applicable grace period, Developer and the City agree that any party may seek
specific performance of this Agreement, and that seeking specific performance
shall not waive any right of such party to also seek monetary damages, injunctive
relief, or any other relief other than termination of this Agreement.
Section 29. Severability. If any term or provision of this Agreement or the application thereof,
shall to any extent, hereafter be determined to be invalid or unenforceable, the remainder of this
Agreement or the application other than those as to which it is held invalid or unenforceable shall
not be affected thereby and shall continue in full force and effect.
Section 30. Assignment & Transfer. This Agreement shall be binding on Developer and its
heirs, successors and assigns, including the successor to or assignee of any Property Interest,
Developer, in its sole discretion, may assign, in whole or in part, this Agreement or any of its rights
and obligations hereunder, or may extend the benefits of this Agreement, to any holder of a
property interest without the prior written consent of, or any other approval of, the City. Notice
of any assignment or transfer shall be provided to the City in accordance with the requirements of
Section 19. Any such assignee shall, in writing in a form acceptable to the City Attorney, assume
all applicable rights and obligations under this Agreement, and upon such assumption, the
assigning party shall be released from all obligations assumed by such assignee.
Section 31. Obligations Surviving Termination Hereof. Notwithstanding and prevailing over
any term or provision to the contrary contained herein, in the event of any lawful termination of
this Agreement, the following obligations shall survive such termination and continue in full force
and effect until the expiration of a one-year tenn following the earlier of the effective date of such
termination or the expiration of the Tenn: (i) the exclusive venue and choice of law provisions
contained herein; (ii) rights of any party arising during or attributable to the period prior to
expiration or earlier termination of this Agreement; and (iii) any other term or provision herein
which expressly indicates either that it survives the tennination or expiration hereof or is or may
be applicable or effective beyond the expiration or permitted early termination hereof.
Section 32. Lack of Agency Relationship. Nothing contained herein shall be construed as
establishing an agency relationship between the City and Developer and neither Developer or its
employees, agents, contractors, subsidiaries, divisions, affiliates, or guests shall be deemed agents,
instrumentalities, employees, or contractors of the City for any purpose hereunder, and the City,
its contractors, agents, and employees shall not be deemed contractors, agents, or employees of
Developer or their subsidiaries, divisions, or affiliates.
Section 33. Cooperation• Expedited Permitting, Time of the Essence.
(a) The Parties agree to cooperate with each other to the full extent practicable pursuant
to the terms and conditions of this Agreement. The Parties agree that time is of the
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essence in all aspects of their respective and mutual responsibilities pursuant to this
Agreement. The City shall use its best efforts to expedite the permitting and
approvals in an effort to assist Developer in achieving its development and
construction. milestones. The City will accommodate requests from Developer's
general contractor and subcontractors for review of phased or multiple permitting
packages, such as those for excavation, site work and foundations, building shell,
core, and interiors. In addition, the City will designate an individual within the City
Manager's office who will have a primary (though not exclusive) duty to serve as
the City's point of contact and liaison with Developer in order to expedite the
processing and issuance of all permit and license applications and approvals across
the various departments and offices of the City which have the authority or right to
review and approve all applications for such permits and licenses.
(b) Notwithstanding the foregoing, the City shall not be obligated to issue development
permits to the extent that Developer does not comply with the applicable
requirements of the Existing Zoning, the Comprehensive Plan, this Agreement, and
the applicable building codes or regulations.
Section 34. Enforcement.
(a) In the event that Developer, or its successors or assigns, fails to act in accordance
with the terms of the Existing Zoning or this Agreement, the City shall seek
enforcement of said violation upon the subject Property.
(b) Enforcement of this Agreement shall be by action against any parties or persons
violating, or attempting to violate, any covenants set forth in this Agreement. Each
Party shall bear their own attorneys' fees and costs.
(c) This enforcement provisions shall be in addition to any other remedies available at
law, in equity or both.
Section 35. Amendment or Termination by Mutual Consent. This Agreement may not be
amended or terminated during its term except by mutual, written agreement of Developer and the
City, except as provided in Section 18 herein. Prior to any amendment or termination of this
Agreement during its term, the City shall hold two (2) public hearings to consider and deliberate
such amendment or termination.
Section 36. Third Party Defense. The City and Developer shall each, at their own cost and
expense, vigorously defend any claims, suits or demands brought against them by third parties,
challenging the Agreement, any project proposed by Developer pursuant to the Agreement, or
objecting to any aspect thereof, including, without limitation: (i) consistency challenge pursuant
to s. 163.3215, Florida Statutes (20.18); (ii) petition for writ of certiorari; (iii) an action for
declaratory judgment; or (iv) any claims for loss, damage, liability, or expense (including
reasonable attorneys' fees). The City and Developer shall promptly give the other written notice
of any such action, including those that are pending or threatened and all responses, filings, and
pleading with respect thereto.
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Section 37. No Conflict of Interest. Developer agrees to comply with Section 2-612 of the City
Code as of the Effective Date, with respect to conflicts of interest.
Section 38. No Third -Party Beneficiary. No persons or entities other than Developer and the
City, their heirs, successors and assigns, shall have any rights whatsoever under this Agreement.
Section 39. Counterparts. This Agreement may be executed in two (2) or more counterparts,
each of which shall constitute an original but all of which, when taken together shall constitute one
and the same agreement. I
NOW, WHEREOF, the City and the Developer have caused this Agreement to be duly
executed.
[Signature Pages to Follow]
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IN WITNESS hereof the parties have caused this Agreement to be duly entered into and
signed as of the date written above.
Witnesses:
STATE OF
COUNTY OF 4/
FLAGLER HOLDING GROUP, INC.
a Florida for-profit corporation
By:
Print Name:, e" I",
Title:
The egoing,j'nstru,nient was ackn� ledged efore me this day of
20 as of Flagler Holding Group, Inc. who
rsonafly known to me or who produced as identification.
My commission expires:
,oV N,
Notary Pubfie State of Florida
John R Petersen
My ComrnGWon FF 232473 NO Y PUBLIC, State of Florida at -Large
�jl 00 Expires 07/0617019
Print Name:
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45552103;1
Print Name:
r
STATE OF
COUNTY OF 4/
FLAGLER HOLDING GROUP, INC.
a Florida for-profit corporation
By:
Print Name:, e" I",
Title:
The egoing,j'nstru,nient was ackn� ledged efore me this day of
20 as of Flagler Holding Group, Inc. who
rsonafly known to me or who produced as identification.
My commission expires:
,oV N,
Notary Pubfie State of Florida
John R Petersen
My ComrnGWon FF 232473 NO Y PUBLIC, State of Florida at -Large
�jl 00 Expires 07/0617019
Print Name:
17
45552103;1
IN WITNESS hereof the parties have caused this Agreement to be duly entered into and
signed as of the date written above.
CITY OF MIAMI, a municipal corporation
located within the State of Florida
Witnesses:
an
Print Name:
Emilio T. Gonzdlez, Ph,l)
City Manager
Approved as to legal form and correctness:
Print Name:
M
STATE OF
COUNTY OF
Victoria M6ndez, Esq.
City Attorney
The foregoing instrument was acknowledged before me this –day of _,
20—, by , in his capacity as City Manager, on behalf of the municipal
corporation, who is personally known to me or who produced as
identification.
My commission expires:
NOTARY PUBLIC, State of Florida at -Large
Print Name:
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45552103;1
Map #48: Flagler
SUBJECT PROPERTY
STREET ADDRESS:
SUBJECT PROPERTY
Exhibit "All
Legal Description of the Property
4218 NE 2 ID Avenue (Folio No. 01-3124-024-0940)
LEGAL DESCRIPTION: Lot 2, 3 and 24, Block 6, BILTMORE, according to the Plat
thereof, as recorded in Plat Book 6, at Page 67, of the Public
Records of Miami -Dade County, Florida.
Note: Map # references relate to Pg. A1.4 and A1.5 of the Miami Design District Retail
Street Special Area Plan Concept Book.
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Exhibit "B"
Miami Design District Retail Street SAP Regulating Plan and Design Concept Book
The Miami Design District Retail Street SAP Regulating Plan and Design Concept Book, as most
recently approved on April 28, 2016, by the adoption of Ordinance No. 13603, are incorporated
into the Miami 21 Code as Appendix F, Volume 11 and incorporated herein by reference. Please
refer to Legi star File No. 11-0 1 196ap3 for a copy of the Miami Design District Retail Street SAP
Regulating Plan & Concept Book.
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