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HomeMy WebLinkAboutExhibit A Executed Development AgreementCFN: 20140322386 BOOK 29137 PAGE 2556 DATE:05/05/2014 02:25:09 PM HARVEY RUVIN, CLERK OF COURT, MIA-DADE CTY DEVELOPMENT AGREEMENT BETWEEN THE CITY OF MIAMI, FLORIDA AND RIVER LANDING DEVELOPMENT, LLC, REGARDING DEVELOPMENT OF THE RIVER LANDING PROJECT This is a Development Agreement ("Agreement") made this ZA day of 40*1r ► , 2014, between River Landing Development, LLC, a Florida limited liability company, ("Owner"); and the City of Miami, Florida, a municipal corporation and a political subdivision of the State of Florida ( "City"), collectively referred to as the "Parties" to this Agreement. RECITALS WHEREAS, the Owner is the fee simple owner of 8.14 acres of property in Miami -Dade County, Florida, legally described on Exhibit "A", having a street address of 1500 NW North River Drive, Miami, Florida ( "Property"); and WHEREAS, on January 18, 2013, the Owner filed an application with the City for approval of a Special Area Plan ( "River Landing SAP") in order to develop the Property as a mixed use development with residential units, retail, restaurants, a riverwalk, and other amenities WHEREAS, the Owner received Waiver #13-0002 pursuant to Article 3, Section 3.9 of the Miami 21 Code ("Zoning Ordinance") from the City to allow a ten percent (10%) reduction in the required minimum acreage of nine (9) acres where the River Landing SAP is for approximately 8.14 acres; and WHEREAS, the proposed Project location on the Miami River will allow for use and enjoyment of the Miami River by not only the residents and patrons of the Property, but also the general public; and WHEREAS, the proposed Project will create certain recurring fiscal benefits for the City's tax base as well as much needed temporary and permanent jobs for the City's residents; and WHEREAS, the Parties wish for the development to proceed substantially in accordance with the "River Landing SAP Regulating Plan and Design Concept Book" attached as Exhibit "B" ("Regulating Plan and Design Concept Book"); and WHEREAS, as a condition to the approval of the River Landing SAP, the Owner and the Owner must enter into a development agreement pursuant to Article 3, Section 3.9 of the Zoning Ordinance and the Florida Local Government Development Agreement Act, Florida Statutes, 163.3220 through 163.3243; and MIAMI 4099321.2 79670/42063 WHEREAS, assurances to the Owner that they 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. 13383, adopted May 23, 2013, has authorized the City Manager to execute this Agreement upon the terms and conditions as set forth below, and the Owner has been duly authorized to execute this Agreement upon the terms and conditions set forth below. NOW THEREFORE, in consideration of the mutual covenants contained herein, it is hereby understood and agreed: The recitals are true and correct and are incorporated into and made a part of this Agreement. Section 1. Consideration. The Parties hereby agree that the consideration and obligations recited and provided for under this Agreement constitute substantial benefits to all Parties and thus adequate consideration for this Agreement. Section 2. Rules of Legal Construction. For all purposes of the Agreement, unless otherwise expressly provided: (a) A defined term has the meaning assigned to it; (b) Words in the singular include the plural and words in plural include the singular; (c) A pronoun in one gender includes and applies to other genders as well; (d) The terms "hereunder", "herein", "hereof', "hereto", and such similar terms shall refer to the instant Agreement in its entirety and not to individual sections or articles; (e) The Parties hereto agree that this Agreement shall not be more strictly construed against any individual party as all Parties are drafters of this Agreement; and (f) 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 the Zoning Ordinance. "Agreement" means this Development Agreement between the City and the Owner. MIAMI 4099321.2 79670/42063 2 "City" means the City of Miami, a municipal corporation of the State of Florida, and all departments, agencies, and instrumentalities subject to the jurisdiction thereof. "Comprehensive Plan" means the comprehensive plan known as the Miami Comprehensive Neighborhood Plan (MCNP) adopted by the City pursuant to Chapter 163, Florida Statutes (2012), meeting the requirements of Sections 163.3177, 163.3178, and 163.3221(2), Florida Statutes (2012), which is in effect as of the Effective Date of the Agreement. "County" means Miami -Dade County, a political subdivision of the State of Florida. "Development" means the carrying out of any building activity, the making of any material change in the use or appearance of any structure or land, or the dividing of land into three (3) or more parcels and such other activities described in Section 163.3221(4), Florida Statutes (2013). "Effective Date" is the date of recordation of the executed, original version of this Agreement. "Existing Zoning" is the applicable zoning designation and land development regulations of the Zoning Ordinance, the City Charter, and the City Code in effect as of the time of the effective date of this Agreement. "Land" means the earth, water, and air above, below, or on the surface, and includes any improvements or structures customarily regarded as land. "Laws" mean all ordinances, resolutions, regulations, comprehensive plans, land development regulations, and rules adopted by a federal, local or State government affecting the Development of Land. "Public Facilities" mean major capital improvements, including, but not limited to, transportation, sanitary sewer, solid waste, drainage, potable water, educational facilities, parks and recreational facilities, streets, parking and health systems and facilities. "Parties" means the Owner, the Owner, and the City who are all signatories to this Agreement. Section 4. Purpose. The purpose of this Agreement is for the City to authorize the Owner to redevelop the Properties pursuant to the River Landing SAP. This Agreement will establish, as of the Effective Date, the land development regulations which will govern the Development of the River Landing SAP Property, thereby providing the Parties with additional certainty during the Development process. This Agreement satisfies the requirements of Article 3, Section 3.9. Lf. of the Zoning Ordinance. MIAMI 4099321.2 79670/42063 Section 5. Intent. The Owner and the City intend for this Agreement to be construed and implemented so as to effectuate the purpose of the River Landing SAP, this Agreement, the Comprehensive Plan, Existing Zoning, and the Florida Local Government Development Agreement Act, s. 163.3220 - 163.3243, Florida Statutes (2012). Section 6. Applicability. This Agreement only applies to the River Landing SAP Properties identified in Exhibit "A." Section 7. 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. 163.3225, Florida Statutes (2012). This Agreement shall become effective on the Effective Date and shall constitute a covenant running with the land that shall be binding upon, and inure to, the benefit of the Developer Parties, their successors, assigns, heirs, legal representatives, and personal representatives. If the Property is submitted to condominium ownership, then the association or other entity designated to represent all of the condominium ownership interests as to the Property, as may be applicable, shall be the proper entity or entities to execute any such release for properties in a condominium form of ownership after City approval as discussed herein. Section 8. Site Plan. The Property will be developed and used in compliance with the Regulating Plan and Design Concept Book as described in attached Exhibit "B" to this Agreement. Section 9. Zoning, Permitted Development Uses, and Building Intensities. The City has designated the Property as River Landing SAP on the official zoning Atlas of the City, pursuant to the applicable procedures in the Zoning Ordinance. As part of the River Landing SAP process, the Property is being rezoned to T6-24-0. The Regulating Plan and Design Concept Book attached as Exhibit "B" provides for any deviations from the underlying regulations of the Zoning Ordinance. In approving the River Landing SAP, the City has determined that the uses, intensities, and densities of Development permitted thereunder are consistent with the Comprehensive Plan and the Zoning Ordinance. Signage and deviations to the regulations in the Zoning Ordinance are articulated further in the Regulating Plan and Design Concept Book and will be approved administratively in accordance with these regulations. Section 10. Future Development. Development within the River Landing SAP shall proceed pursuant to the Regulating Plan and Design Concept Book attached as Exhibit "B". The criteria to be used in determining whether future Development shall be approved are consistent with the Comprehensive Plan, this Agreement, and the River Landing SAP. The Comprehensive Plan, this Agreement, and the River Landing SAP shall govern Development of the Property for the duration of the Agreement. The City's laws and policies adopted after the Effective Date may be applied to the Property only if the determinations required by Section 163.3233(2), Florida Statutes (2012) have been made after 30 days written notice to the Owner and after a public hearing. Pursuant to Section 163.3233(3), Florida Statutes (2012), a prohibition on downzoning supplements, rather than supplants, any rights that may be vested to the Owner under Florida or Federal law. As a result, the Owner may challenge any subsequently adopted changes to land development regulations based on (a) common law principles including, but not limited to, MIAMI 4099321.2 79670/42063 4 equitable estoppel and vested rights; or (b) statutory rights which may accrue by virtue of Chapter 70, Florida Statutes (2012). Section 11. Local Development Permits. The Project may require additional permits or approvals from the City, County, State, or Federal government and any division thereof. Subject to required legal processes and approvals, the City shall make a good faith effort to take all reasonable steps to cooperate with and facilitate all such approvals. Such approvals include, without limitation, the following approvals and permits and any successor or analogous approvals and permits: (a) Subdivision plat or waiver of plat approvals; (b) Covenant in Lieu of Unity of Title or Unity of Title acceptance or the release of existing unities or covenants; (c) Building permits; (d) Certificates of use or occupancy; (e) Stormwater Permits; and (f) Any other official action of the Federal, City, County, State or any other government agency having the effect of permitting development of the Property. In the event that the City substantially modifies its land Development regulations regarding site plan approval procedures, authority to approve any site plan for the Project shall be vested solely with 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 Zoning Ordinance, the Comprehensive Plan, and the terms of this Agreement. Section 12. Riverwalk. The Owner, at their sole cost and expense, agrees to make certain improvements at the rear of the Property immediately fronting the Miami River (the "Riverwalk"). The Riverwalk shall be built, constructed, installed, and maintained substantially in compliance with the plans as depicted in Exhibit "B". The Riverwalk will be open to the public and maintained by the Owner. Section 13. Utilities and Easements. The Owner understands and agrees that the utilities presently serving the Property may be insufficient for the Development of the Project. The Owner agrees that they will, at their sole cost and expense, make any and all changes, improvements, alterations, or enhancements to these facilities necessary or appropriate to provide the highest level of service to the Property without in any manner diminishing the service to other properties within the City. Section 14. Compliance With Florida Building Code, Florida Fire/Life Safety Laws, and all Applicable Laws. The Owner shall at all times in the Development and operation of the Project comply with all applicable laws, ordinances, and regulations including but not limited to the Florida Building Code and Florida Life Safety codes to ensure the safety of all Project and MIAMI 4099321.2 79670/42063 5 City residents and guests. Specifically and without limitation, the Owner will install and construct all required fire safety equipment and water lines with flow sufficient to contain all possible fire occurrences. Section 15. Notice. All notices, demands, and requests which 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: City Manager City of Miami 3500 Pan American Drive Miami, FL 33133 With a copy to: City Attorney Miami Riverside Center 444 S.W. 2nd Ave., 9th Floor Miami, FL 33130 To River Landing Development, LLC/Owner: Andrew Hellinger, Esq. and Coralee Penabad, Esq. 235 Altara Avenue Coral Gables, FL 33146 With a copy to: A. Vicky Garcia -Toledo, Esq. Bilzin Sumberg Baena Price and Axelrod, LLP 1450 Brickell Avenue, 23rd Floor Miami, FL 33131 Any party to this Agreement may change its notification address(es) by providing written notification to the remaining Parties pursuant to the terms and conditions of this section. Section 16. Environmental. The City finds that the proposed Project will confer a significant net improvement upon the publicly accessible tree canopy in the area. The Parties agree that the Owner will comply with the intent and requirements of Chapter 17 of the City Code within the River Landing SAP where required. Section 17. Seawall. The Owner shall be responsible for any repairs to the seawall in compliance with the standards set forth by the Army Corps of Engineers and the City Code. MIAMI 4099321.2 79670/42063 6 Section 18. Waterfront Specialty Center Designation. Pursuant to Chapter 4 of the City Code, the River Landing SAP is designated as a Waterfront Specialty Center. Section 19. Alcoholic Beverage Sales. Upon approval of this Agreement, pursuant to Chapter 4 of the City Code, a Waterfront Specialty Center is hereby designated for the River Landing SAP. Any establishments located therein shall be entitled to the benefits afforded by Chapter 4 of the City Code. Notwithstanding the requirements of Sec. 4-3.2 of the City Code, Planning, Zoning and Appeals Board and City Commission approval shall not be required for bars (including taverns, pubs, and lounges), nightclubs, and supper clubs as principal uses proposed to be located on the River Landing SAP. The maximum number of establishments selling alcoholic beverages permitted within the Waterfront Specialty Center shall not exceed four (4) establishments, but exclusive of any bona fide, licensed restaurants where the sale of alcoholic beverages is entirely incidental to and in conjunction with the principal use of the sale of food (e.g. bona fide, licensed restaurants, with a 2 -COP, 2 -COP SRX, 4 -COP, 4 -COP SRX, or an equivalent license). The number of approved establishments may be increased by amendment to this Agreement before the City Commission and Section 27 of this Agreement. Section 20. Archaeological. Due to the Project's location in a high probability Archaeological Conservation Area, the City will require the Owner to obtain a Certificate to Dig, pursuant to Chapter 23 of the City Code, to dig prior to any ground disturbing activities. Section 21. Public Benefits Pursuant to this Agreement. (a) Job Creation & Employment Opportunities. Generally, the Owner shall consult with local and state 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 within the River Landing SAP. (b) Pursuit of Additional Land. The Owner hereby agrees to use its best efforts to acquire by lease or fee simple ownership a parcel of land east of the River Landing SAP for open space within the River Landing SAP. The Owner will update the City on an annual basis regarding this acquisition. Section 22. Emergency Management. The Owner shall ensure public safety and protection of property within the coastal zone from the threat of hurricanes. A portion of the River Landing SAP is part of the Coastal High Hazard Area (CHHA) as depicted in the Map in Appendix CM -1 of the MCNP. The Owner will review the Development's potential impact on evacuation times and shelter needs in the event of a hurricane. Section 23. Covenant. The River Landing SAP is on the Miami River, and incorporates residential Development. Pursuant to the City's MCNP, Policy PA -3.1.9., the Owner shall record a covenant running with the land acknowledging and accepting the presence of the existing MIAMI 4099321.2 79670/42063 7 working waterfront 24-hour operations as permitted. This Covenant shall be separate and apart from this Agreement. Section 24. Multiple Ownership. In the event of multiple ownership subsequent to the approval of the Agreement, each of the subsequent owners, mortgagees, and other successors having interest in the Property (or any portion thereof, including condominium unit owners) shall be bound by the terms and provisions of this Agreement as covenants that run with the Property. Section 25. Common Area Maintenance. The Owner will create, prior to the conveyance of any portion of the Property (less than the entire Property), a master association or other entity which shall provide for the maintenance of all common areas, private roadways, cross - easements, and other amenities common to the Property. This Agreement shall not preclude the Owner(s) of the Property from maintaining their own buildings or common areas not common to the Property, outside the control of the master association. The instrument creating the master association or other entity shall be subject to the approval of the City Attorney. Section 26. Modification. The provisions of this Agreement may be amended, added to, derogated, deleted, modified, or changed from time to time only by recorded instrument executed by the Owner, and the City after public hearing before the City Commission. If the Property is submitted to condominium ownership, then the association or other entity designated to represent all of the condominium interests as to the Property, as may be applicable, shall be the proper entity or entities to execute any such instrument described herein for properties in a condominium form of ownership after approval by the City and public hearing before the City Commission. Section 27. Enforcement. The City, its successor or assigns, and the Owner shall have the right to enforce any of the provisions of this Agreement. Enforcement shall be by action at law or in equity against any parry or person violating or attempting to violate any covenants, either to restrain violation or to recover damages or both. The prevailing party in the action or suit shall be entitled to recover, in addition to costs and disbursements allowed by law, such sum as the court may adjudge to be reasonable for the services of its attorney. Additionally, the City may enforce this Agreement by any means allowed by law, including but not limited to injunction or via Chapter 2, Article X of the City Code. Section 28. Authorization to Withhold Permits and Inspections. In the event the Owner is obligated to make payments or improvements under the terms of this Agreement or to take or refrain from taking any other action under this Agreement, and such obligations are not performed as required, in addition to any other remedies available, the City is hereby authorized to withhold any further permits for the Property and refuse any inspections or grant any approvals, with regard to any portion of the Property until such time this Agreement is complied with. Section 29. Exclusive Venue, Choice of Law, Specific Performance. It is mutually understood and agreed by all the Parties hereto that this Agreement shall be governed by the laws of the State of Florida, and any applicable federal law, both as to interpretation and performance, and that any action at of 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 MIAMI 4099321.2 79670/42063 8 federal courts and venue for any such actions shall lie exclusively in a court of competent jurisdiction in Miami -Dade County. In addition to any other legal rights, the City and the Owner shall each have the right to specific performance of this Agreement in court. If an action is brought in a court of competent jurisdiction, the prevailing party will be entitled to reasonable attorneys' fees as the court may adjudge and all costs incurred. 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 30. Severability. Invalidation of any of these sections in the Agreement, by judgment of court in any action initiated by a third party, in no way shall affect any of the other provisions of this Agreement, which shall remain in full force and effect. Section 31. Events of Default. (a) The Owner shall be in default under this Agreement if the Owner fails to perform or is in breach of any term, covenant, or condition of this Agreement which is not cured within thirty (30) days after receipt of written notice from the City specifying the nature of such breach; provided, however, that if such breach cannot reasonably be cured within thirty (30) days, then Owner shall not be in default if it commences to cure such breach within said thirty (30) day period, diligently prosecutes such cure to completion, and notifies the City in writing of its attempt to comply. (b) The City shall be in default under this Agreement if the City fails to perform or breaches any term, covenant, or condition of this Agreement and such failure is not cured within thirty (30) days after receipt of written notice from the Owner specifying the nature of such breach; provided, however, that if such breach cannot reasonably be cured within thirty (30) days, the City shall not be in default if it commences to cure such breach within said thirty (30) day period and diligently prosecutes such cure to completion. (c) It shall not be a default under this Agreement if either party is declared bankrupt by a court of competent jurisdiction after the Project has been built. 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. (c) The default of any Owner or successor or Owner of any portion of the Owner's rights hereunder shall not be deemed a breach by any other Owner, or any other successor or Owner of any portion of the rights of the Owner hereunder or any other successor. MIAMI 4099321.2 79670/42063 9 Section 32. Remedies Upon Default. (a) Neither party may terminate this Agreement upon the default of the other party, but shall have all of the remedies enumerated herein. (b) Upon the occurrence of a default by a party to this Agreement not cured within the applicable grace period, the Owner 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. If an action is brought in a court of competent jurisdiction to seek specific performance, the prevailing party will be entitled to reasonable attorneys' fees as the court may adjudge and all costs incurred Section 33. Obligations Surviving Termination Hereof. Notwithstanding and prevailing over any contrary term or provision contained herein, in the event of any lawful termination of this Agreement, the following obligations shall survive such termination and continue in full force and effect until the expiration of a one (1) year term following the earlier of the effective date of such termination or the expiration of the Term: (i) the exclusive venue and choice of law provisions contained herein; (ii) rights of any party arising during or attributable to the period prior to expiration or earlier termination of this Agreement; and (iii) any other term or provision herein which expressly indicates either that it survives the termination or expiration hereof or is or may be applicable or effective beyond the expiration or permitted early termination hereof. Section 34. Lack of Agency Relationship. Nothing contained herein shall be construed as establishing an agency relationship between the Parties nor its employees, agents, contractors, subsidiaries, divisions, affiliates, or guests shall be deemed agents, instrumentalities, employees, or contractors of the City for any purpose hereunder, and the City, its contractors, agents, and employees shall not be deemed contractors, agents, or employees of the Owner or its subsidiaries, divisions, or affiliates. Section 35. Cooperation. (a) The Parties agree to cooperate with each other to the full extent practicable pursuant to the terms and conditions of this Agreement. The City shall use its best efforts to expedite the permitting and approval process in an effort to assist the Owner in achieving its Development and construction milestones. The City will accommodate requests from the Owner or the Owner's general contractor and subcontractors for review of phased or multiple permitting packages, as allowed by law or as approved by the Building Official in consultation with the Planning Director or any other relevant parties, such as those for excavation, site work and foundations, building shell, core, and interiors. (b) Notwithstanding the foregoing, the City shall not be obligated to issue Development permits to the extent the Owner does not comply with the applicable requirements of the Zoning Ordinance, the Comprehensive Plan, this Agreement, or any applicable building codes. MIAMI 4099321.2 79670/42063 10 Section 36. Recording. This Agreement shall be recorded in the Public Records of Miami - Dade County, Florida at the Owner's expense and shall inure to the benefit of the City. A copy of the recorded Agreement shall be provided to the City Manager, City Clerk, and City Attorney within two (2) weeks of recording. Section 37. Successor(s), Assigns, and Designees. The covenants and obligations set forth in this Agreement shall extend to the Owner, their successor(s) and/or assigns. Nothing contained herein shall be deemed to be a dedication, conveyance, or grant to the public in general nor to any persons or entities except as expressly set forth herein. MIAMI 4099321.2 79670/42063 11 IN WITNESS WHEREOF, these presents have been executed this 21 day of 999th '2014. RIVER LANDING DEVELOPMENT LLC, a Florida limited liability company By: (3, r --I\ By: A,Ae % A11,0-,2s- Its: STATE OF j*'%Y/ G( ) ) COUNTY OF �SS �i/�&.,& The foregoing instrument was acknowledged before me this J�l day of "�, 2014 by f River Landing Development LLC who is sonally kno to me or ( )$roduced a k1lid driver's licen s identification. Notary Public Sign Name: Print Name: My Commission Expires: [NOTARIAL SEAL) 0 W COtiNAIS 0 # DD 937649 pcpIFIEB: November 2, 2013 W*d T, NOWY pubk unAeiwr " s MIAMI 4099321.2 79670/42063 12 IN WITNESS WHEREOF, these presents have been executed this day of M QO'ck� , 2014. ATTEST; r Toddrna fCity C16fk APPR `'VEj?: AS TO,,FORM AND CORR CTN SS: VictoUa Men z� City Attorney MIAMI 4099321.2 79670/42063 13 CITY OF MIAMI, a municipal corporation BY L_ Daniel' o s) City Manager