Development Agreement, Inc.This instrument was prepared by (record 'and return to)
Name: Raul Aguila, Deputy City Attorney
Address: Office of the City Attorney
City of Miami Beach
1700 Convention Center Drive
Miami Beach, FL 33139 (Space reserved for Clerk)
EXECUTION COPY
DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT (the Agreement) is made and entered
into as of the _ day of 2010 (Commencement Date), by and between the CITY OF
MIAMI BEACH, a Florida municipal. corporation (the City), and the HOUSING
AUTHORITY OF THE CITY OF MIAMI BEACH FLORIDA, a Florida public housing
authority (the Owner or HACMB).
Introduction and Back rg ound
A. The property that is the subject of this Agreement lies in Miami Beach,
Miami-Dade County, Florida. This Agreement, among other things, is intended to and
shall constitute a development agreement among the parties pursuant to the Florida Local
Government Development Agreement Act (the Act).
B. The Owner owns certain real property in the City of Miami Beach,
located at 1231-1251 17~' Street, and as more specifically delineated as Parcels A, B, and
C in the sketch attached as Exhibit "A" hereto (Parcels A, B, and C may hereinafter
collectively be referred to as the HACMB Property or the Property).
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C. The Owner intends to develop Parcel C as an affordable elderly housing
development with some ground level, neighborhood-oriented commercial space (the
HACMB Project).
D. In order to connect Dade Boulevard and West Avenue, and thereby
relieve some of the congestion caused by traffic in the surrounding area, the City is
desirous of constructing a public street for pedestrian and vehicular access, which street
would include a bridge, over Parcels A and B (the West Avenue Bridge Project).
E. In order to proceed with the West Avenue Bridge Project, Owner has
agreed to grant to City, and City has agreed to purchase from Owner, a perpetual
easement on and over Parcels A and B (the City Easement).
F. As further consideration for Owner granting the City Easement to City, the
City and Owner have hereby agreed to certain other terms and conditions, pertaining to
the HACMB Project as set forth in this Agreement. Owner and City have entered into
and executed a purchase and sale agreement for the City Easement, which agreement was
approved by Owner on ,pursuant to HACMB Resolution No.
and by the City on ,pursuant to City
Resolution No. ;and which agreement is attached and incorporated as
Ezhibit "B" hereto (hereinafter, the "Purchase and Sale Contract").
G. The City is a Florida municipal corporation with powers and authority
conferred under the Florida Constitution, the Municipal Home Rule Powers Act, Florida
Statutes, and the Miami Beach City Charter and Code. The City has all governmental,
corporate, and proprietary powers to enable it to conduct municipal government, perform
municipal and governmental functions and render municipal services, including the
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authority to adopt, implement and enforce (together with any required governmental
approvals) comprehensive plans, zoning ordinances, redevelopment plans, and other
police power and legislative measures necessary to assure the health, safety and general
welfare of the City and its residents and visitors
H. Owner is a public housing authority organized and created pursuant to the
Housing Authorities Law of the Florida Statutes.
I. Having fully considered this Agreement at two (2) duly noticed public
hearings, in compliance with Section 163.3225 of the Act; and having further determined
that it is in the City and Owner's best interest, as well as the public's interest, to deal
with the issues covered by this Agreement in a comprehensive manner, in compliance
with all applicable laws, ordinances, plans, rules and regulations of the City, while
allowing the City and Owner to proceed, respectively, with the development of the West
Avenue Bridge Project and the HACMB Project in accordance with existing laws and
policies, subject to the terms hereof, the parties have agreed to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing, and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereby agree as follows:
1. Recitations. The foregoing recitations are true and correct and are
incorporated herein by this reference.
2. Authority. This Agreement is entered into pursuant to the authority and
procedures provided by the Act.
3. Definitions. All capitalized terms in this Agreement shall have the
definitions set forth in this Section unless such terms are defined elsewhere in the body of
this Agreement.
3.1 "Act" shall mean the Florida Local Government Development
Agreement Act (Section 163.3220, et. seq., Florida Statutes (1997)).
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3.2 "Buildin Pg ermit" means a "Full Building Permit," as such term is
defined in the City's land development regulations, issued by the City's Building
Department, which allows building or structures to be erected, constructed,
altered, moved, converted extended, enlarged, or used, for any purpose, in
conformity with applicable codes and ordinance.
3.3 Intentionally omitted.
3.4 "City Easement" shall mean a perpetual easement for the West
Avenue Bridge Project, which shall provide, without limitation for the design,
development, construction, operation, maintenance, repair, renovation, and
improvement of a public street, including a bridge, for vehicular and pedestrian
access, on, over and across the City Easement Area (as hereinafter defined); and
which Easement shall be substantially in accordance with the form attached as
Exhibit "C" hereto.
3.5 "City Easement Area" shall mean all of the area of Parcels A and
B, as more specifically described in Attachment "A" of the City Easement.
3.6 Intentionally omitted.
3.7 "Comprehensive Plan" shall mean the comprehensive plan which
the City -has adopted and implemented for the redevelopment and continuing
development of the City pursuant to Chapter 163 Part II, of the Florida Statutes.
3.8 "Development Approvals" shall mean all Development Permits
and all approvals, consents, permits, special use exemptions or variances, as well
as other official actions of the federal, state or County governments or other
governmental agencies.
3.9 "Development Permits" shall mean any building permit (including,
without limitation, a Full Building Permit), zoning permit, subdivision approval,
zoning certification, special exceptions, variances issued or granted by the City or
any other official actions of the City (whether by the City Commission or any
City board, department or agency) having the effect of permitting the
development of the HACMB Project.
3.10 Intentionally omitted.
3.11 "HACMB Project" shall mean the design, development,
construction, operation, maintenance, repair, renovation, and improvement by
Owner of that certain affordable elderly housing project, with some ground level,
neighborhood-oriented commercial space, to be situated on and over Parcel C,
subject to and in compliance with the following conditions:
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(a) the maximum total square footage of floor area permitted upon
Parcel C shall not exceed 78,700 square feet, measured in accordance with the
requirements of the City's land development regulations.
(b) For purposes of the computation of the maximum floor area of
Parcel C, as set forth in subsection (a) hereof, Owner may include the City
Easement in the calculation of the square footage of Parcel C. The provisions of
this subsection (b) shall survive expiration of this Agreement.
(c) Upon approval of this Agreement and execution by the parties
hereto, and as a condition of Closing, Owner shall execute and deliver, for review
and approval by the City's Planning and Zoning Director, a covenant, or covenant
in lieu of unity of title (as determined by the City's Planning and Zoning
Director), for the Property. The provisions of this subsection (c) shall survive
expiration of this Agreement.
(d) The Project shall be designed, developed, and constructed, at the
sole cost and expense of Owner, as an affordable housing development. Provided
that Owner obtains all requested Development Approvals to do so the Project
shall be designed and constructed substantially in accordance with the proposed
concept plan prepared by Owner's architect, Ari Sklar, dated ,and
attached as Exhibit "D" hereto (the Concept Plan). Upon execution of this
Agreement by the parties hereto, the City Commission shall be deemed to have
approved the attached Concept Plan.
(e) The parties agree and acknowledge that the setbacks in the Project,
as proposed in the approved Concept Plan, may require the issuance of a variance
by the City's Board of Adjustment; which variance; if required, shall be proposed
by City staff, but subject to final approval by the Board of Adjustment, acting in
its governmental capacity, in accordance with the provisions of Section 9.4
hereof.
(f) Any material deviation (as determined by the City's Planning and
Zoning Director) in any of the conditions described in subsection(s) (a) - (e)
above, or in the approved Concept Plan, shall require the approval of the City
Commission and a written amendment to this Agreement;
(g) Any non-material changes (as determined by the City's Planning
and Zoning Director) which are required by any City land use board (including,
without limitation, the Design Review Board, the Historic Preservation Board, the
Board of Adjustment, and the Planning Board, as applicable), or any other
applicable board, agency, or authority, or any non-material changes which are
initiated by Owner, shall not require the approval of the City Commission.
(h) Any technical changes in the approved Concept Plan not governed by
subsections (f) and (g) above, and which are (i) required in order for the HACMB
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Project to be in compliance with any and all applicable laws, codes, rules and
regulations of any governmental or regulatory agencies including, without
limitation, the Florida Building Code and the Americans .with Disabilities Act
(ADA), or (ii) otherwise required or necessary including, without limitation, any
changes in connection with ingress and egress and public works, shall be
delegated to the. appropriate government official of the City for review and
approval of such technical changes.
3.12 "HACMB Property (or the "Property") shall mean the parcel of
real property described in Exhibit "A" hereto; provided, however, that from and after the
Closing, the Property shall include all of the City's right, title, and interest in and to the
City Easement.
3.13 "Closing" shall mean the closing for the purchase and sale of the
City Easement, pursuant and subject to the terms of the Purchase and Sale Contract, and
as also provided in Section 11.1 of this Agreement.
3.14 "Purchase and Sale Contract" shall mean the agreement approved
by and entered into between City and Owner for purchase and sale of the City Easement.
3.15 Intentionally omitted.
3.16 .Intentionally omitted.
3.17 Intentionally omitted.
3.18 Intentionally omitted.
3.19 Intentionally omitted.
4. City Easement. The City Easement shall be granted by the Owner to the
City at the Closing and shall be substantially in accordance with the form attached as
Exhibit "C" hereto. Said grant shall not be affected by the expiration, termination or other
treatment of this Agreement and shall be deemed a perpetual easement in accordance
with the terms of said instrument.
5. Intentionally omitted.
6.. Intentionally omitted.
7. Intentionally omitted.
8. West Avenue Brid a Project. Subject to and contingent upon Closing and
the grant of the City Easement, the City shall design, develop, and construct, at its sole
cost and expense, the West Avenue Bridge Project, subject. to and in compliance with the
following conditions:
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(a) City shall direct the design, development, and construction
process; be responsible for entering into all contracts necessary for the
design, development, and construction of the Project; secure all required
permits and approvals for the Project; and shall have any and all other sole
authority, as City deems necessary in its sole and reasonable judgment and
discretion, to direct the means, manner, and method of the design,
development, and construction process.
(b) The Project shall provide for, contain, and/or otherwise
comply with those specific requirements, as set forth in Exhibit "E,"
attached and incorporated hereto.
9. Zoning and Other Approvals for HACMB Project.
9.1 Development Permits. Certain provisions of this Agreement will
require that the City and/or its boards, departments, or agencies take certain
governmental actions, acting in their governmental capacity, and issue
Development Permits in order to accomplish and satisfy the authorization and
construction of the HACMB Project:
9.2 Applications for Development Approvals. Promptly following the
Commencement Date, the Owner will initiate and diligently pursue all
Development Approval applications for the HACMB Project. The City shall
process all Development Permit applications in a timely fashion and the City shall
cooperate with the Owner (at no cost to the City) in processing all necessary
Development Approvals from federal, State, and County agencies, as needed. No
extension of any time period herein shall be deemed to be an extension of any
time periods contained within the Development Approvals.
9.3 Laws Governing this Agreement. The City's laws and policies
governing the development of the HACMB Project at the time of the execution of
this Agreement by the parties hereto shall govern the development of the Project
for the duration of this Agreement. The City may apply subsequently adopted
laws and policies to the HACMB Project only as otherwise permitted or required
by the Act.
9.4 Comprehensive Plan, Zoning and Other Approvals As provided
above, the parties recognize and agree that certain provisions of this Agreement
will require the City and/or its boards, departments, or agencies, acting in their
governmental capacity, to consider governmental actions, as set forth in this
Agreement. All such considerations and actions shall be undertaken in accordance
with established requirements of State statutes and City ordinances, in the
exercise of the City's jurisdiction under the police power. The parties further
recognize and agree that these proceedings shall be conducted openly, fully,
freely and fairly, in full accordance with law and with both procedural and
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substantive due process to be accorded the applicant and any member of the
public. Nothing contained in this Agreement shall entitle the Owner to compel the
City to take any such actions, save and except the consents, if applicable, to the
filing of such applications for Development Permits or other required
Development Approvals, as more fully set forth herein, and to timely process such
applications.
9.5 Owner shall be solely responsible for obtaining all Development
Approvals and Development Permits for the Project.
9.6 Owner shall, at its sole cost and expense, commence construction
on or before sixty (60) days after all Development Approvals and Development
Permits necessary for the HACMB Project are issued (the Construction
Commencement Date). For purposes of this Agreement, "commencement of
construction" means the commencement of major work (such as piling or
foundations) for construction of the Project. Any and all preliminary site work
(including, without limitation, any environmental remediation and ancillary
demolition) shall not be deemed to be commencement of construction.
9.7 Owner. shall, at its -sole cost and expense, prosecute construction of
the Project with diligence and continuity to completion. Completion of the
Project, as evidenced by the issuance of a Certificate of Completion (C.C.) or
Certificate of Occupancy (C.O.), as applicable, for the Project, shall occur no later
than the date that is five (5) years after the Commencement Date (the Completion
Deadline).
10. Owner's Riaht of Termination Prior to Commencement of Construction.
Notwithstanding anything to the contrary contained herein, Owner shall have the
right to be released from its liability and obligations (except, the obligation to grant and
convey the City Easement to City), and to terminate this Agreement by providing written
notice to the City prior to the Construction Commencement Date because:
(a) changes to the Project required as a condition to the issuance of
any Development Approval or Development Permit render the Project economically
unfeasible in the reasonable business judgment of Owner; or
(b) the Project cannot meet concurrency requirements under section
163.3180, Florida Statutes, or the costs of concurrency mitigation are, in the reasonable
business judgment of Owner, economically unfeasible; or
(c) Owner, after good faith efforts, has been unable to obtain a Full Building
Permit for the Project.
In the event of termination of this Agreement pursuant to this Section 10, each party shall
bear its own costs and expenses incurred in connection with this Agreement, and neither
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party shall have any further liability to the other (except, provided the Closing occurs,
Owner shall be obligated to grant and convey the City Easement to City; which
obligation shall survive termination of this Agreement).
11. Conditions to Closing.
11.1 Notwithstanding anything to the contrary contained herein if,
during its due diligence review of the West Avenue Bridge Project (the Due Diligence
Period), the City determines that it would not be in the City's best interest to proceed
with the Project due to any or all of the following conditions:
a.) lack of funding;
b.) the Project, as contemplated by City, exceeds the Project
budget acceptable to City;
c.) the Project, as contemplated by City, does not, or cannot,
comply and/or meet with, and/or does not, or cannot, otherwise receive all or any
portion of the required approvals (including, without limitation, any conditions
and or requirements imposed upon the Project by federal, State, or County
funding sources) or permits; or
d.) opposition to the Project by the surrounding neighborhood
and, in particular, the immediate surrounding residential area in and around the
proposed site of the Project; or
e.) any or all of the conditions precedent to Closing, as set
forth in the Purchase and Sale Contract, are not satisfied; or
f.) notwithstanding subsection (e) above, the Purchase and
Sale Contract is terminated or otherwise declared null and void, in accordance
with provisions thereof;
Then the City may elect not to proceed with the Closing and to terminate
this Agreement by providing written notice to Owner, prior to the conclusion of the Due
Diligence Period (as set forth below), and neither party shall have any further rights or
obligations under the Agreement; provided ,however, that to the extent that- applications
of Owner seeking any Development Approvals for the HACMB Project are still pending
hearing (or appeal) as of the date of termination of this Agreement, then at Owner's
option, the Agreement may be extended for an additional six (6) month period; provided
further Owner has given City written notice of same within thirty (30) calendar days from
the initial date of termination. Notwithstanding the preceding, in the event that Owner
elects the option to extend the Agreement, and timely notifies the City of such election
(as provided above), and whether or not Owner has obtained all of the Development
Approvals, for the Project, then this Agreement shall automatically terminate at the end
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of the extension period, and the parties shall have no further obligations under this
Agreement.
The City's Due Diligence Period shall be the period of time referred to as the
"Inspection Period" in the Purchase and Sale Contract.
12. Title; No Subordination. At the Closing, Owner shall grant the City
Easement, free and clear of all liens, encumbrances, rights of occupancy, or other matters.
Thereafter, the City Easement including, without limitation, all or any portion of
Parcels A or B, shall not be subject or subordinate to (a) any mortgage, whether now or
hereafter existing; or (b) any other liens or encumbrances hereafter affecting the Property
and/or the HACMB Project.
13. "As Is" Condition. Subject to Closing, the City agrees to accept the City
Easement, Area, with the underlying land and improvements (if any), in "AS-IS"
condition.
14. Affordability Period; Restrictive Covenant: Amendment to Ci 's Land
Development Regulations.
14.1 Affordability Period; Restrictive Covenant. Owner expressly
agrees and covenants that the HACMB Project shall be operated as an
affordable housing project for a minimum of thirty (30) years, which
period shall commence upon the issuance of a Certificate of Completion
(C.C.) or Certificate of Occupancy (C.O.), as applicable, for the Project
(the Affordability Period). Prior to, and as a condition to the issuance of a
C.C. or C.O. for the Project, Owner shall execute and deliver a Restrictive
Covenant to City, substantially in accordance with the form attached as
Exhibit "F" hereto, and which Covenant shall memorialize the
Affordability Requirement; be intended and deemed to be a covenant
running with the land; inure to the benefit of, and be binding upon, the
parties' respective successors and assigns including, without limitation,
subsequent owners of the Property and/or the Project; and be recorded in
the public records in Miami-Dade County, Florida.
Notwithstanding the preceding paragraph, if Owner sells, assigns, or
otherwise transfers Parcel Candor the Property prior to the issuance of a
Building Permit for the HACMB Project, then the following conditions
shall apply:
a) If Parcel C and/or the Property is sold, assigned, or
otherwise transferred to an individual/entity who/which intends to
develop Parcel C as an affordable housing project, then Owner
shall require such buyer/assignee/transferee (as applicable), as a
condition of such sale, assignment, or transfer, to execute and
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record a Restrictive Covenant against the Property (substantially
accordance with the form attached in Exhibit "F" hereto), requiring
that the development on Parcel C be operated and maintained as an
affordable housing throughout the Affordability Period; or
b) If Parcel C and/or the Property is sold, assigned, or
otherwise transferred to an individual/entity who/which intends to
develop Parcel C for a main use other than an affordable housing
project, then no Affordability Period or Restrictive Covenant shall
be required.
Notwithstanding the preceding, the requirement to grant the City
Easement shall not be affected by any sale, assignment, or other
transfer of the Property, or any portion thereof.
As consideration for Owner's agreement to execute, record, and deliver the
Restrictive Covenant, as provided above, the City agrees to waive any Payment in Lieu of
Taxes (PILOT) fees for the HACMB Project for such time as the Project is operated and
maintained as an affordable housing project, up to a period of fifteen (15) years,
commencing upon the issuance of a Certificate of Completion (C.C.) or Certificate of
Occupancy (C.O.) for the Project; provided further, that in the event that the (i) HACMB
Project does not require a variance (as contemplated in subsection 3.11(e) hereof); and
(ii) A) either the City Commission does not amend the City's land development
regulations (ldr's) by January 31, 2010 (as contemplated in Section 14.2 below) or, B) the
City's Planning and Zoning Director determines that the Project does not require any
amendments to the ldr's, then the City agrees that the PILOT fee waiver period shall be
automatically extended (without any further action required by either party) from the
original fifteen (15) years, to a maximum of twenty-five (25) years (which new 25 year
period will also be deemed to have commenced upon the issuance of a C.C. or C.O. for
the Project).
14.2 Amendment to City's Land Development Regulations. The City
Administration will prepare and present to the Mayor and City
Commission, for its consideration at one of the Commission's regularly
scheduled meetings, certain amendments to the City's land development
regulations, relating to modifying minimum average unit size and parking
requirements (including, without limitation, commercial, guest, and unit
parking requirements) for affordable housing developments in the City of
Miami Beach; which amendments, if approved, shall apply to the
HACMB Project. Notwithstanding the preceding, Owner acknowledges
that, the City shall not be obligated to approve any. or all such
amendments, whether as a condition. of this Agreement or otherwise, and
that any or all such approval(s) shall be at the Mayor and City
Commission's sole discretion and judgment.
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14.3 Notwithstanding subsections 14.1 and 14.2 hereof, in the event that
the City elects not to proceed with the Closing and to terminate this
Agreement on or before the Due Diligence Period, as provided in
subsection 11.1 hereof, and provided further that the HACMB has
submitted its application for a variance (in the event that the City's
Planning and Zoning Director has previously deemed that the Project will
require a variance) prior to receipt of the City's termination notice then, as
consideration therefore, City agrees, and HACMB shall be entitled to, the
PILOT fee waiver for the Project for the maximum twenty five (25) year
period.
15. Reservation of Rights. This Agreement shall not affect any rights which
may have accrued to any party to this Agreement under all applicable law and each party
hereto reserves any and all such rights.
16. No Permit or Waiver of Fees. This Agreement is not and shall not be
construed as a Development Permit, Development Approval, or authorization to
commence development of the HACMB Project, nor shall it relieve Owner of the
obligation to obtain all necessary Development Approvals, Development Permits, or any
other approvals and/ or permits that are required under applicable law and under and
pursuant to the terms of this Agreement. Except as otherwise expressly provided herein,
nothing contained in this Agreement shall be deemed to constitute a waiver of any fee,
charge, or cost imposed by the City in connection with the issuance of any Development
Approval, Development Permit or any other approval and/or permit.
17. Good Faith; Further Assurances; No Cost. The parties to this Agreement
have negotiated in good faith. It is the intent and agreement of the parties that they shall
cooperate with each other in good faith to effectuate the purposes and intent of, and to
satisfy their obligations under, this Agreement in order to secure to themselves the mutual
benefits created under this Agreement; and, in that regard, the parties shall execute such
further documents as may be reasonably necessary to effectuate the provisions of this
Agreement; provided, that the foregoing shall in no way be deemed to inhibit, restrict or
require the exercise of the City's police power or actions of the City when acting in a
quasi judicial capacity. Wherever in this Agreement a provision requires cooperation,
good faith or similar effort to be undertaken at no cost to a party, the concept of no cost
shall not be deemed to include any cost of review (whether legal or otherwise),
attendance at meetings, hearings or proceedings and comment and/or execution of
documents, all such costs to be borne by the party receiving a request to so cooperation,
act, in good faith or so forth.
18. Consistency with the City's Master Plan. The City has adopted and
implemented the Comprehensive Plan. The City hereby finds and declares that the
provisions of this Agreement dealing with the HACMB Project are, or shall be, consistent
with the City's adopted Comprehensive Plan and land development regulations (subject to
all applicable Development Approvals).
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19. Public Facilities and Concurrency. City and Owner anticipate the
HACMB Project will be served by those roadway transportation facilities currently in
existence as provided by state, County and local roadways. It is also anticipated that the
Project will be served by public transportation facilities currently in existence, including
those provided in Miami-Dade County, the City ,and other governmental entities ad may
presently operate public transportation services within the City sanitary sewer, solid
waste, drainage, and potable water services for the proposed Project are expected to be
those services currently in existence and owned or operated by Miami-Dade County, the
Miami Dade County Water and Sewer Department, and the City. The Project will also be
serviced by any and all public facilities, as such are defined in Section 163.3221(12),
Florida Statutes (1997), as such are described in the City's Comprehensive Plan. The
foregoing, however, shall not be deemed to be an approval of, nor shall it be deemed to
relieve Owner of the obligation to comply with Section 163.3180, Florida Statues (1997).
(b) Owner shall be solely responsible for obtaining all final non-appealable
land use permits, including, but not limited to, all permits and approvals required
pursuant to Section 163.3180, Florida Statutes (1997), with respect to concurrency
requirements for roads, sanitary sewer, solid waste, drainage, potable water, parks and
recreation (the Concurrency Requirements). Owner shall apply to the appropriate
governmental authorities for letter or other evidence that Owner is pursuing all applicable
Concurrency Requirements, and shall diligently and in good faith pursue such letters or
other evidence that the HACMB Project meets all applicable Concurrency Requirements.
20. Recording of Development Agreement. Within fourteen (14) days after
the parties execute this Agreement, the City shall record this Development Agreement
with the Clerk of the Circuit Court of Miami-Dade County. The Owner shall submit a
copy of the recorded Agreement to the State of Florida's Land Planning Agency within
fourteen (14) days after this Agreement is recorded. This Agreement shall become
effective only after (i) it has been recorded in the Public Records of Miami-Dade County,
and (ii) thirty (30) days have elapsed after the State of Florida Land Planning Agency's
receipt of a copy of the recorded Agreement. Owner agrees that it shall be responsible
for all recording fees and other related fees and costs related to the recording and delivery
of this Agreement. The provisions hereof shall remain in full force and affect during the
term hereto, and subject to the conditions of this Agreement, shall be binding upon the
undersigned and all successors in interest to the parties to this Agreement. Whenever an
extension of any material deadline is permitted or provided for under the terms of this
Agreement, at the request of either party, the other party shall join in a short-form
recordable Memorandum of Agreement confirming such extension to be recorded in the
Public Records of Miami-Dade County.
21. Duration of Development Agreement. The duration of this Agreement shall
not exceed fifteen (15) years from the Commencement Date; provided, however, that the
duration of this Agreement may be extended by mutual agreement of the City and Owner.
During the term of this Agreement, the City's laws and policies governing the
development of land in effect as of the date hereof shall govern development of the
Property. The City may apply subsequently adopted laws and policies to the HACMB
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Project only if the City has held a public hearing pursuant to Section 163.3 225, Florida
Statutes, and determined:
(a) they are not in conflict with the laws and policies governing this
Agreement and do not prevent development of the land uses, intensities, or densities in
this Agreement; or
(b) they are essential to the public health, safety, or welfare, and
expressly state that they shall apply to a development that is subject to a development
agreement; or
Agreement; or
(c) they are specifically anticipated and provided for in this
(d) the City demonstrates that substantial changes have occurred in
pertinent conditions existing a the time of approval of Agreement; or
(e) this Agreement is based on substantially inaccurate information
supplied by Owner.
22. Required Development Approvals.
(a) Developer shall be solely responsible for obtaining, at its sole cost
and expense, the Development Approvals listed in Exhibit "G" attached hereto.
Notwithstanding the preceding, the City and Owner agree and acknowledge that
the Development Approvals listed in Exhibit "G" hereto may not constitute a full
listing and description of all local development approvals or permits needed to be
approved for development of the HACMB Project, and that the omission of any
other approval or permit (required for the development of the Project) from
Exhibit "G" shall not relieve Owner of its sole obligation, whether under
applicable law or this Agreement, to obtain same.
23. Intentionally omitted.
24. Public Reservations and/or Dedications. There are no reservations and/or
dedications of land for public purposes that are proposed under this Agreement other than
the City Easement.
25. Confirmation of Land Development Regulations The zoning district
classification of Parcel C is CD-2, as defined in City's land development regulations.
26. Omissions. The parties hereto recognize and agree that the failure of this
Agreement to address a particular permit, condition,. term, or restriction shall not relieve
the Owner of the necessity of complying with the law governing said permitting
requirements, conditions, term, or restriction notwithstanding any such omission.
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27. Notices. Any notices required or permitted to be given under this
Agreement shall be in writing and shall be deemed to have been given if delivered by
hand, sent by recognized overnight courier (such as Federal Express) or mailed by
certified or registered mail, return receipt requested, in a postage prepaid envelope, and
addressed as follows:
If to the City at: City of Miami Beach, City Hall
1700 Convention Center Drive
Miami Beach, Florida 33139
Attn: City Manager
or
If to Owner at: Housing Authority of the
City of Miami Beach
200 Alton Road
Miami Beach, Florida 33139
Attn: Executive Director
28. Indemnification of Owner. Owner hereby agrees to hold the City, its
officers, employees, agents, contractors, and representatives harmless from any
liability/or damage or claims for damage for personal injury, including wrongful death,
and claims for property damage, which may arise from the direct or indirect activities
and/or operations of Owner, or these of any officer, employee, agent, contractor, sub-
contractor, or other person acting on Owner's behalf, which relate to the design,
development, and construction of the HACMB Project. Owner agrees to, and shall afford
at its sole cost and expense, the City and its officers, employees, agents, contractors, and
representatives from any and all actions for damages caused, or alleged to have been
caused, by reason of Owner's activities in connection with HACMB Project. This
indemnification agreement applies to all damages and claims for damages including,
without limitation, interest, costs and attorney's fees, outlined or alleged to have been
suffered by reason of the activities and/or operations referenced herein. This
indemnification shall not apply to the gross negligence or willful misconduct of the City,
or of its officer's employees, agents, contractors, or representatives. The aforestated
indemnification, and the provisions of this Section 28, shall survive expiration of this
Agreement.
29. Events Of Default, Conditional Limitations Remedies Etc
Section 29.1 Definition. Each of the following events shall bean "Event of
Default" hereunder:
(a) if Owner shall default in the observance or performance of any
term, covenant or condition of this Agreement on Owner's part to be observed or
performed and, if no cure period is expressly provided for herein, Owner does not
remedy such Default within thirty (30) days after notice by City of such Default
(the "Default Notice"), or if such a Default is of such a nature that it cannot
reasonably be remedied within thirty (30) days (but is otherwise susceptible to
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cure), and if, Owner does not (i) within thirty (30) days after the giving of such
Default Notice, advise City of Owner's intention to institute all steps necessary
(and from time to time, as reasonably requested by City, Owner shall advise City
of the steps being taken) to remedy such default (which such steps shall be
reasonably designed to effectuate the cure of such Default in a professional
manner), and (ii) thereafter diligently prosecute to completion all such steps
necessary to remedy the same; or
(b) if Owner makes an assignment for the benefit of creditors; or
(c) if Owner files a voluntary petition under Title 11 of the United
States Bankruptcy Code, or if Owner files a petition or an answer seeking,
consenting to or acquiescing in, any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under the present or any
future Federal bankruptcy code or any other present or future applicable Federal,
state or other bankruptcy or insolvency statute or law, or seeks, consents to,
acquiesces in or suffers the appointment of any trustee, receiver, custodian,
assignee, sequestrator, liquidator or other similar official of Owner, of all or any
substantial part of its properties, or of all or any part of Owner's interest in the
Property and/or the HACMB Project, and the foregoing are not stayed or
dismissed within one hundred fifty (150) days after such filing or other action; or
(d) if, within one hundred fifty (150) days after the commencement of
a proceeding against Owner seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar relief under the
present or any future Federal bankruptcy code or any other present or future
applicable Federal, state or other bankruptcy or insolvency statute or law, such
proceeding has not been dismissed, or if, within one hundred eighty (180) days
after the appointment, without the consent or acquiescence of Owner, of any
trustee, receiver, custodian, assignee, sequestrator, liquidator or other similar
official of Owner, of all or any substantial part of its properties, or of all or any
part of Owner's interest in the Property and/or the HACMB Project, such
appointment has not been vacated or stayed on appeal or otherwise, or if, within
one hundred eighty (180) days after the expiration of any such stay, such
appointment has not been vacated.
In the event of a Default which with the giving of notice to Owner and the
passage of time would constitute an Event of Default, City's notice to Owner shall state
with specificity the provision of this Agreement under which the Default is claimed, the
nature and character of such Default, the facts giving rise to such Default, the date by
which such Default must be cured pursuant to this Agreement, and, if applicable, that the
failure of Developer to cure such Default by the date set forth in such notice will result in
City having the right to terminate this Agreement.
Notwithstanding the foregoing, no Event of Default shall be deemed to have
occurred until such time as City shall have given Owner notice of the occurrence of an
Event of Default.
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Notwithstanding anything to the contrary contained herein, City shall be entitled
to seek any injunctive or other equitable relief that may be available to City during the
pendency of any Default.
29.2 Enforcement of Performance; Damages and Termination.
If an Event of Default occurs, City may elect to (a) enforce performance or
observance by Owner of the applicable provisions of this Agreement, or (b) recover
damages for breach of this Agreement or terminate this Agreement. City's election of a
remedy hereunder with respect to an Event of Default shall not limit or otherwise affect
City's right to elect any of the remedies available to City hereunder with respect to any
other Event of Default.
29.3 Strict Performance.
No failure by City or Owner to insist upon strict performance of any covenant,
agreement, term or condition of this Agreement or to exercise any right or remedy
available to such party by reason of the other party's default or an Event of Default, shall
constitute a waiver of any such Default or Event of Default or of such covenant,
agreement, term or condition or of any other covenant, agreement, term or condition. No
covenant, agreement, term or condition of this Agreement to be performed or complied
with by either party, and no default by either party, shall be waived, altered or modified
except by a written instrument executed by the other party. No waiver of any Default or
Event of Default shall affect or alter this Agreement, but each and every covenant,
agreement, term and condition of this Agreement shall continue in full force and effect
with respect to any other then existing or subsequent Default. Owner's compliance with
any request or demand made by City shall not be deemed a waiver of Owner's right to
contest the validity of such request or demand.
29.4 Right to Enjoin Defaults.
In the event of Owner's Default or an Event of Default, City shall be entitled to
seek to enjoin the Default or Event of Default and shall have the right to invoke any
rights and remedies allowed at law or in equity or by statute or otherwise, except to the
extent City's remedies are expressly limited by the terms hereof. In the event of City's
Default or an Event of Default under this Agreement, Owner shall be entitled to seek to
enjoin the default and shall have the right to invoke any rights and remedies allowed at
law or in equity or by statute or otherwise, except to the extent Owner's remedies are
expressly limited by the terms hereof. Each right and remedy of City and Owner
provided for in this Agreement shall be cumulative and shall be in addition to every other
right or remedy provided for in this Agreement or now or hereafter existing at law or in
equity or by statute or otherwise, except to the extent City's remedies and Owner's
remedies are expressly limited by the terms hereof, and the exercise or beginning of the
exercise by City or Owner of any one or more of the rights or remedies provided for in
this Agreement or now or hereafter existing at law or in equity or by statute or otherwise
shall not preclude the simultaneous or later exercise by City or Owner of any or all other
rights or remedies provided for in this Agreement or now or hereafter existing at law or in
equity or by statute or otherwise, except to the extent City's remedies and Owner's
remedies are expressly limited by the terms hereof.
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29.5 City's Default.
In the event of any default by City hereunder, not caused by City Excusable
Delays (as hereinafter defined), Owner shall give City written notice specifying such
default and City agrees to promptly commence the curing of such default and to cure
such default within thirty (30) days after receipt of the aforesaid notice; provided,
however, that if such default cannot reasonably be cured within said thirty (30) day
period, then City shall cure any such default diligently and as quickly as reasonably
practicable under the circumstances and shall have a reasonable period of time within
which to cure such default so long as City is so proceeding. If City fails to cure any
default during the applicable curative period, Owner, at any time after the expiration of
such curative period, shall have the right to seek damages against City and/or to exercise
any other remedy provided in this Agreement or available to Owner at law or in equity.
As used herein, the term "City Excusable Delays" shall mean City's failure: to perform
any obligation of City hereunder by reason of one or more of the following causes, to-
wit, governmental restrictions, regulations or ordinances (other than those restrictions,
regulations or ordinances over which City, as a governmental entity, exercises control),
strikes, lockouts, acts of God,.- war, terrorism, riots, gross negligence or the willful
misconduct of Owner, or any other cause, similar or dissimilar to the foregoing and
whether or not now in the contemplation of the parties hereto, beyond the reasonable
control of City, other than the financial inability of City, provided that City takes
reasonable steps to so minimize the effect of any such circumstance, in which event the
required period for City's performance for any obligation hereunder shall be extended for
a period equal to the length of the delay caused by such Excusable Delays. City agrees to
make a good faith effort to notify Owner of any Excusable Delays affecting the
performance by City of its obligations under this Agreement and the estimated delay to
result therefrom.
30. Discharge of Liens.
30.1 Creation of Liens.
(a) Owner shall not create, cause to be created, or suffer or permit to exist (1)
any lien, encumbrance or charge upon this Agreement, the Property (including, without
limitation, the City Easement Area), the HACMB Project, or the City Easement, or any
part thereof or appurtenance thereto, which is not removed within the time period
required pursuant to Section 30.2; (2) any lien, encumbrance or charge upon any assets
of, or funds appropriated to, City; or (3) any other matter or thing whereby the West
Avenue Bridge Project and or the City's interest in the Property (including, without
limitation, the City Easement), or any part thereof or appurtenance thereto, might be
materially impaired.
(b) City shall not create, cause to be created, or suffer or permit to exist (i)
any lien, encumbrance upon this Agreement, the City Easement Area, the West Avenue
Bridge Project, or any part thereof or appurtenance thereto, which is not removed within
the time period required pursuant to Section 30.2; (ii) any lien, encumbrance or charge
upon any assets of, or funds appropriated to, Owner; or (iii) any other matter or thing
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whereby Owner's interest in the Property, or the HACMB Project, or any part thereof or
appurtenant thereto, might be materially impaired.
30.2 Discharge of Liens.
(a) If any mechanic's, laborer's, vendor's, materialman's or similar statutory
lien (including tax liens, provided the underlying tax is an obligation of Owner is filed
against the Property and/or the HACMB Project, or any part thereof, or if any public
improvement lien created, or caused or suffered to be created by Owner shall be filed
against any assets of, or funds appropriated to Owner, Owner shall, within thirty (30)
days after Owner receives notice of the filing of such mechanic's, laborer's, vendor's,
materialman's or similar statutory lien or public improvement lien, cause it to be
discharged of record by payment, deposit, bond, order of a court of competent
jurisdiction or otherwise. However, Owner shall not be required to discharge any such
lien if Owner shall have (i) furnished City with, at Owner's option, a cash deposit, bond,
letter of credit from an institutional lender (in form reasonably satisfactory to City) or
other security (such as a personal guaranty or title company indemnity) reasonably
satisfactory to City, in'an amount sufficient to pay the lien with interest and penalties; and
(ii) brought an appropriate proceeding to discharge such lien and is prosecuting such
proceeding with diligence and continuity; except that if, despite Owner's efforts to seek
discharge of the lien, City reasonably believes that a court judgment or order foreclosing
such lien is about to be entered or granted and so notifies Owner, Owner shall, within ten
(10) days of notice to such effect from City (but not later than three (3) business days
prior to the entry or granting of such judgment or order of foreclosure), cause such lien to
be discharged of record or City may thereafter discharge the lien and look to Owner for
reimbursement of its cost in doing so.
(b) Notwithstanding anything to the contrary contained in Section 30.2 (a), if
any mechanic's, laborer's, vendor's, materialman's or similar statutory lien (including tax
liens, provided the underlying tax is an obligation of Owner) is filed against the Property,
or any part thereof (including, without limitation, the City Easement Area), or the
HACMB Project, or the West Avenue Bridge Project, or City's interest in the Property
(including, without limitation, the City Easement) as a result of any action of City, its
officers, employees, representatives or agents, City shall, within thirty (30) days after
City receives notice of the filing of such mechanic's, laborer's, vendor's, materialman's or
similar statutory lien, cause it to be discharged of record by payment, deposit, bond, order
of a court of competent jurisdiction or otherwise. However, City shall not be required to
discharge any such lien if City shall have (i) furnished Owner with, at City's option, a
cash deposit, bond, letter of credit from an Institutional Lender (in form reasonably
satisfactory to Owner) or other security (such as a personal guaranty or title company
indemnity) reasonably satisfactory to Owner, in an amount sufficient to pay the lien with
interest and penalties and (ii) brought an appropriate proceeding to discharge such lien
and is prosecuting such proceeding with diligence and continuity; except that if, despite
City's efforts to seek discharge of the lien, Owner reasonably believes that a court
judgment or order foreclosing such lien is about to be entered or granted and so notifies
City, City shall, within ten (10) days of notice to such effect from Owner (but not later
than three (3) business days prior to the entry or granting of such judgment or order of
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foreclosure), cause such lien to be discharged of record or Owner may thereafter
discharge the lien and look to City for reimbursement of its cost in so doing.
30.3 No Authority to Contract in Name of City.
Nothing contained herein shall be deemed or construed to constitute the consent
or request of City, express or implied, by implication or otherwise, to any contractor,
subcontractor, laborer or materialman for the performance of any labor or the furnishing
of any materials for any specific improvement of, alteration to, or repair of, the HACMB
Project or any part thereof, nor as giving Owner any right, power or authority to contract
for, or permit the rendering of, any services or the furnishing of materials that would give
rise to the filing of any lien, mortgage or other encumbrance against the West Avenue
Bridge Project or the City Easement, or City's interest in the Property (including, without
limitation, the City Easement Area), or any part thereof, or against any assets of City.
Notice is hereby given, and Owner shall cause all construction agreements to provide,
that to the extent enforceable under Florida law, City shall not be liable for any work
performed or to be performed on the HACMB Project, or any part thereof, for Owner, or
for any materials furnished or to be furnished to the Project, or any part thereof, for any
of the foregoing, and. no mechanic's, laborer's, vendor's, materialman's or other similar
statutory lien for such work or materials shall attach to or affect the West Avenue Bridge
Project, the City Easement, or City's interest in the Property (including, without
limitation, the City Easement Area), or any part thereof, or any assets of City.
31. Right To Perform The Other Partv's Obli ations.
(a) If an Event of Default shall occur, City may, but shall be under no
obligation to, perform the obligation of Owner the breach of which gave rise to such
Default, without waiving or releasing Owner from any of its obligations contained herein,
provided that City shall exercise such right only in the event of a bona fide emergency or
after five (5) business days' notice, and Owner hereby grants City access to Parcel C and
to the HACMB Project, as applicable, in order to perform any such obligation.
(b) If a default by City under this Agreement shall occur and be continuing
beyond any applicable grace period, Owner may, but shall be under no obligation to,
perform the obligations of City (other than those which are governmental as opposed to
proprietary obligations) the breach of which gave rise to such default, without waiving or
releasing City from any of its obligations contained herein, provided that Owner shall
exercise such right only in the event of a bona fide emergency or after five (5) business
days' notice to City.
31.2 Discharge of Liens.
(a) If Owner fails to cause any mechanic's, laborer's, vendor's, materialman's
or similar statutory lien (including tax liens, provided the underlying tax is an obligation
of Owner) to be discharged of record in accordance with the provisions of Section 30,
City may, but shall not be obligated to, discharge such lien of record either by paying the
amount claimed to be due or by procuring the discharge of such lien by deposit or by
bonding proceedings.
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(b) If City fails to cause any mechanic's, laborer's, vendor's, materialman's or
similar statutory lien to be discharged of record in accordance with the provisions of
Section 30, Owner may, but shall not be obligated to, discharge such lien of record either
by paying the amount claimed to be due or by procuring the discharge of such lien by
deposit or by bonding proceedings.
31.3 Reimbursement for Amounts Paid Pursuant to this Section.
(a) Any amount paid by City in performing Owner's obligations, as provided
in this Section, including all costs and expenses incurred by City in connection therewith,
shall be reimbursed to City within thirty (30) days of City's demand, together with
interest on amounts actually paid by City, calculated at the maximum allowable rate
under Florida law, from the date of notice of any such payment by City to the date on
which payment of such amounts is received by City.
(b) Any amount paid by Owner in performing City's obligations, as provided
in this Section, including all costs and expenses incurred by Owner in connection
therewith, shall be reimbursed to Owner within thirty (30) days of Owner's demand,
together with interest on amounts actually paid by Owner, calculated at the maximum
allowable rate under Florida law, from the date of notice of any such payment by Owner
to the date on which payment of such amounts is received by Owner.
31.4 Waiver. Release and Assumption of Obli ations.
(a) City's payment or performance pursuant to the provisions of this Section
shall not be, nor be deemed to constitute, City's assumption of Owner's obligations to pay
or perform any of Owner's past, present or future obligations hereunder.
(b) Owner's payment or performance pursuant to the provisions of this
Section shall not be, nor be deemed to constitute, Owner's assumption of City's
obligations to pay or perform any of City's past, present or future obligations hereunder.
32. Intentionally omitted.
33. Force Majeure. Any prevention, delay or stoppage due to strikes, lockouts,
labor disputes, acts of God, inability to obtain labor or materials or reasonable substitutes
therefore, riot, civil commotion, fire or other casualty, and other causes beyond the
reasonable control of the party obligated to perform, excluding the financial inability of
such party to perform and excluding delays resulting from appeals or rehearings
commenced by the Owner (any such causes or events to be referred to herein as a "Force
Majeure"), shall excuse the performance by such party for a period equal to any such
period of prevention, delay or stoppage.
34. Miscellaneous.
(a) Counteroarts. To facilitate execution, the parties hereto agree that
this Agreement may be executed in counterparts as may be required and it shall not be
necessary that the signature of, or on behalf of, each party, or that the signatures of all.
persons required to bind any party, appear on each counterpart; it shall be sufficient that
the signature of, or on behalf of, each party, or that the signatures of the persons required
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to bind any party, appear on one or more of such counterparts. All counterparts shall
collectively constitute a single Agreement.
(b) References. All references in the Agreement to the "Agreement"
shall hereafter mean and refer to the Development Agreement.
(c) Governing Law and Exclusive Venue.
This Agreement shall be governed by, and construed in accordance with,
the laws of the State of Florida, both substantive and remedial, without regard to
principles of conflict of laws. The exclusive venue for any litigation arising out of this
Agreement shall be Miami Dade County, Florida, if in State court, and the U.S. District
Court, Southern District of Florida, if in federal court. BY ENTERING INTO THIS
AGREEMENT, CITY AND OWNER EXPRESSLY WAIVE ANY RIGHTS EITHER
PARTY MAY HAVE TO A TRIAL BY JURY OF ANY CIVIL LITIGATION
RELATED TO, OR ARISING OUT OF, THIS AGREEMENT.
(d) Waiver, Modification, etc. No covenant, agreement, term or
condition of this Agreement shall be changed, modified, altered, waived or terminated
except by a written instrument of change, modification, alteration, waiver or termination
executed by City and Owner. No waiver of any Default or default shall affect or after
this Agreement, but each and every covenant, agreement, term and condition of this
Agreement shall continue in full force and effect with respect to any other then existing
or subsequent Default or default thereof.
(e) Effect of Other Transactions. No mortgage, whether executed
simultaneously with this Agreement or otherwise, and whether or not consented to by
City, shall be deemed to modify this Agreement in any respect, and in the event of an
inconsistency or conflict between this Agreement and any such instrument, this
Agreement shall control.
(fj Invalidity of Certain Provisions. If any provision of this
Agreement or the application thereof to any Person or circumstances is, to any extent,
finally determined by a court of competent jurisdiction to be invalid and unenforceable,
the remainder of this Agreement, and the application of such provision to Persons or
circumstances other than those as to which it is held invalid and unenforceable, shall not
be affected thereby and each term and provision of this Agreement shall be valid and
enforceable to the fullest extent permitted by law.
(g) Remedies Cumulative.
Each right and remedy of either party provided for in this Agreement shall be
cumulative and shall be in addition to every other right or remedy provided for in this
Agreement, or now or hereafter existing at law or in equity or by statute or otherwise
(except as otherwise expressly limited by the terms of this Agreement), and the exercise
or beginning of the exercise by a party of any one or more of the rights or remedies
provided for in this Agreement, or now or hereafter existing at law or in equity or by
statute or otherwise (except as otherwise expressly limited by the terms of this
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Agreement), shall not preclude the simultaneous or later exercise by such party of any or
all other rights or remedies provided for in this Agreement or now or hereafter existing at
law or in equity or by statute or otherwise (except as otherwise expressly limited by the
terms of this Agreement).
(h) Performance at Each Party's Sole Cost and Expense.
Unless otherwise expressly provided in this Agreement, when either party
exercises any of its rights, or renders or performs any of its obligations hereunder, such
party shall do so at its sole cost and expense.
(i) Time is of the Essence.
Time is of the essence with respect to all matters in, and requirements of, this
Agreement as to both City and Owner including, without limitation, the times within
which City and Owner must commence and complete construction of, respectively, the
West Avenue Bridge Project and the HACMB Project.
(j) Successors and Assigns.
The agreements, terms, covenants and conditions herein shall be binding upon,
and inure to the benefit of, City and Owner, and, except as otherwise provided herein,
their respective successors and permitted assigns. There shall be no assignment by
Owner of its rights or obligations hereunder, or its interest in this Agreement, without the
prior consent of the Mayor and City Commission which consent, if given at all, shall be
at the City Commission's sole and reasonable discretion.
(k) Notice of Defaults.
Notwithstanding anything to the contrary set forth in this Agreement,
under no circumstances shall any party to this Agreement lose any right or benefit
granted under this Agreement or suffer any harm as a result of the occurrence of any
Default or default of such party as to which Default or default such party has not received
notice thereof from the other party.
(1) Corporate Obli ations.
It is expressly understood that this Agreement and obligations issued hereunder
are solely corporate obligations, and, that no personal liability will attach to, or is or shall
be incurred by, the incorporators, stockholders, officers, directors, elected or appointed
officials (including, without limitation, the Mayor and City Commission of the City and
the Chairman and Members of the HACMB) or employees, as such, of City or Owner, or
of any successor corporation, or any of them, under or by reason of the obligations,
covenants or agreements contained in this Agreement or implied therefrom; and, that any
and all such personal liability, either at common law or in equity or by constitution or
statute, of, and any and all such rights and claims against, every such incorporator,
stockholder, officer, director, elected or appointed officials (including, without limitation,
the Mayor and City Commission of the City and the Chairman and Members of the
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HACMB) or employee, as such, or under or by reason of the obligations, covenants or
agreements contained in this Agreement or implied therefrom, are expressly waived and
released as a condition of, and as a consideration for, the execution of this Agreement.
(m) Nonliabilitv of Officials and Emplovees.
No member, official or employee of City shall be personally liable to Owner, or
any successor in interest, in the event of any default or breach by City or for any amount
or obligation which may become due to Owner or successor under the terms of this
Agreement; and, any and all such personal liability, either at common law or in equity or
by constitution or statute, of, and any and all such rights and claims against, every such
person, under or by reason of the obligations, covenants or agreements contained in this
Agreement or implied therefrom, are expressly waived and released as a condition of, and
as a consideration for, the execution of this Agreement.
No member, official or employee of Owner shall be personally liable to City, or
any successor in interest, in the event of any default or breach by Owner or for any
amount or obligation which may become due to City or successor under the terms of this
Agreement; and, any and all such personal liability, either at common law or in equity or
by constitution or statute, of, and any and all such rights and claims against, every such
person, under or by reason of the obligations, covenants or agreements contained in this
Agreement or implied therefrom, are expressly waived and released as a condition of, and
as a consideration for, the execution of this Agreement.
(n) Partnership Disclaimer.
Owner acknowledges, represents and confirms that it is an independent contractor
in the performance of all activities, functions, duties and obligations pursuant to this
Agreement.
The parties hereby acknowledge that it is not their intention to create between
themselves a partnership, joint venture, tenancy in common, joint tenancy, or co
ownership for the development by Owner of the HACMB Project, the development by
City of the West Avenue Bridge Project, or for any other purpose whatsoever.
Accordingly, notwithstanding any expressions or provisions contained herein, nothing in
this Agreement, or the other documents executed by the parties with respect to the
HACMB Project or the West Avenue Bridge Project, shall be construed or deemed to
create, or to express an intent to create, a partnership, joint venture, tenancy-in-common,
joint tenancy, or co-ownership of any kind or nature whatsoever between the parties
hereto. The provisions of this subsection (n) shall survive expiration of this Development
Agreement.
(o) No Third Party Rights.
Nothing in this Development Agreement, express or implied, shall confer upon
any person, other than the parties hereto and their respective successors and assigns, any
rights or remedies under or by reason of this Agreement.
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(p) No Conflict of Interest.
Owner represents and warrants that, to the best of its actual knowledge, no
member, official or employee of the City has any direct or indirect financial interest in
this Agreement nor has participated in any decision relating to this Agreement that is
prohibited by law. Owner represents and warrants that, to the best of its knowledge, no
officer, agent, employee or representative of the City has received any payment or other
consideration for the making of this Agreement, directly or indirectly, from Owner.
Owner represents and warrants that it has not been paid or given, and will not pay or
give, any third person any money or other consideration for obtaining this Agreement,
other than normal costs of conducting business and costs of professional services such as
architects, engineers, and attorneys. Owner acknowledges that Owner is relying upon the
foregoing representations and warranties in entering into this Agreement and would not
enter into this Agreement absent the same.
35. Entire Agreement. This Agreement, together with the documents
referenced herein, constitute the entire agreement and understanding among the parties
with respect to the subject matter hereof, and there are no other agreements,
representations or warranties other than as set forth herein. This Agreement may not be
changed, altered or modified except by an instrument in writing signed by the party
against whom enforcement of such change would be sought and subject to the
requirements for the amendment of development agreements in the Act.
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F:\attoWGUR\AGREEMENT\Housing Authority Development Agreement (Redline 7-1-10).doc
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EXECUTED as of the date first above written in several counters, each of which
shall be deemed an original, but all constituting only one agreement.
Signed, sealed and delivered
in the presence of:
Signed, sealed and delivered
in the presence of:
CITY OF MIAMI BEACH,
a Florida municipal corporation
By: _
Name:
Attest:
Robert Parcher, City Clerk
OWNER/HOUSING AUTHORITY OF
THE CITY OF MIAMI BEACH
By: _
Name:
Attest:
By: _
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APPROVED AS TO
FORM & LANGUA(~L `I
& FnN EXECUTION
7 7 (~
STATE OF FLORIDA )
SS:
COUNTY OF DADE )
The foregoing instrument was acknowledged before me this day of ,
2010 by as of the Housing
Authority of the City of Miami Beach and. on behalf of the Authority. He/She is
personally known to me and who did (did not) take an oath.
NOTARY PUBLIC
OFFICIAL NOTARY SEAL
STATE OF FLORIDA )
SS:
COUNTY OF DADE )
Typed or Printed Name of Notary
My Commission expires:
Serial No., if any:
The foregoing instrument was acknowledged before me this day of ,
2010, by as Mayor of the City of Miami Beach, a
municipal corporation, on behalf of the City. He/She is personally known to me or has
produced as identification and who did (did not) take an oath.
OFFICIAL NOTARY SEAL
NOTARY PUBLIC
Typed or Printed Name of Notary
My Commission expires:
Serial No., if any:
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EXHIBIT "A"
PROPERTY SKETCH
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EXHIBIT ~~B"
PURCHASE AND SALE AGREEMENT
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EXHIBIT "C"
PROPERTY EASEMENT
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EXHIBIT "D"
CONCEPT PLAN
-31 -
EXHIBIT "E"
WEST AVENUE BRIDGE PROJECT REQUIREMENTS
-32-
EXHIBIT "F"
RESTRICTIVE COVENANT
-33-
EXIIIBIT "G"
REQUIRED DEVELOPMENT APPROVALS
-34-
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT ("Agreement") is executed by and
between the City of Miami Beach ("City" and/or "Buyer") a Florida municipal corporation, and
the Housing Authority of the City of Miami Beach, a Florida public housing authority ("Seller").
RECITALS
A. Seller owns all of the Land described in Exhibit A;
B. Seller desires to sell, and Buyer desires to purchase from Seller, a perpetual
easement over a portion of the Land (hereinafter, the "City Easement"), as identified in Exhibit
B (hereinafter the "Property" or "Easement Property"); and Seller desires to retain title to the
Land while granting the City Easement to that portion of Land identified in Exhibit B;
NOW, THEREFORE, in consideration of the premises and other valuable
consideration, Seller agrees to sell to City the City Easement, and City agrees to purchase the
City Easement from Seller on the terms and conditions contained herein:
Section 1. Definitions and References. The following terms, as used in this
Agreement, have the following meanings:
"Agreement Date" means the date upon which this Agreement has been executed
by both Seller and City.
"Gifu Easement" shall mean a perpetual easement for the West Avenue Bridge
Project, which shall provide, without limitation for the design, development, construction,
operation, maintenance, repair, renovation, and improvement of a public street, including a
bridge, for vehicular and pedestrian access, on, over and across the Property.
"Closing" means the consummation of the sale and conveyance of the City
Easement by Seller to City and payment of the Purchase Price by City to Seller, pursuant to
Section 8.1 of this Agreement.
"Closing Date" means the date upon which the Closing occurs, as set forth in
Section 8.1 of this Agreement.
"Contracts" means all contracts, and other agreements, written or oral, governing
or relating to the Property.
"Coon "means Miami-Dade County, a political subdivision of the State of
Florida.
"Development Agreement" means the agreement between the City and Seller
pertaining to the parties' respective rights and obligations as to (for City) the development of the
West Avenue Bridge Project, and (for Seller) the development of an affordable housing project
referred in said Development Agreement as the "HACMB Project."
"Hazardous Substances" means (i) those substances included within the
definitions of "hazazdous substances," "hazazdous materials," "toxic substances" or "solid
waste" in the Comprehensive Environmental Response, Compensation and Liability Act of 1980,
42 U.S.C. § 960, et sec ., the Resource Conservation and Recovery Act of 1976, 42
U.S.C. § 6901, et sec ., the Hazazdous Materials Transportation Act, 49 U.S.C. § 1801, et seg., or
the Clean Water Act, 33 U.S.C. § 1321, et sec ., and in the regulations promulgated pursuant
thereto; (ii) those .substances listed in the United States Department of Transportation Table (49
CFR § 172.1 O 1) or by the Environmental Protection Agency as "hazardous substances"; (iii)
such other substances, materials and wastes which aze regulated, or classified as hazazdous or
toxic, under applicable local, state or federal law or regulations; and (iv) any material, waste or
substance which is petroleum, asbestos, polychlorinated biphenyls, flammable explosives or
.. radioactive materials.
"Inspection Period" has the meaning set forth in Section 7.1.
"Land" means the real property legally described on Exhibit A attached hereto,
together with all tenements, hereditaments, development rights, easements, privileges,
reversions, remainders and other rights and appurtenances belonging or in any manner
appertaining thereto, including without limitation all reversionary interests in and to any
adjoining or abutting rights-of--way.
"Permitted Exceptions" means the title exceptions set forth in Exhibit C hereto,
and those revealed by the Title Commitment to which City has not objected by notice to Seller
within the objection period described in Section 2.1.
"Purchase Price" has the meaning set forth in Section 2.1.
"Property" (or "Easement Property") means the City Easement azea as listed on
Exhibit B;
"Survey" means the survey of the Land to be prepared by the Surveyor, as set
forth in Section 3.2, that will include separate legal descriptions for the Property and the Land.
"Surveyor" means a licensed land surveyor approved by City and Seller and
acceptable to Title Company.
"Title Agent" means an agent for the Underwriter designated by City by whom
the Title Commitment and Title Policy aze to be issued.
"Title Commitment" means the Form B Owner's Marketability Title Insurance
Commitment issued or to be issued to City with respect to the Property and the City Easement, as
contemplated by Section 3.1, which will include copies of all matters for which exception is
made in Schedule B, Section II thereof.
"Title Policy" means the Form B Owner's Marketability Title Insurance Policy to
be issued to City pursuant to the Title Commitment.
"Underwriter(s)" means Chicago Title Insurance Company or another insurer
acceptable to City, for and upon whom the Title Commitment and Title Policy are to be written
and issued.
Section 2. Purchase Price and Terms of Patent.
2.1 Purchase Price. The purchase price for the City Easement shall be One
Million Six Hundred Thirty Five Thousand ($1,635,000.00) (the "Purchase Price"), subject to
adjustments and prorations as herein provided. The Purchase Price will be paid by City to Seller
as and when required by Section 8 hereof.
Section 3. Title Evidence.
3.1 Title Insurance Commitment. Within thirty (30) business days after the
Agreement Date, City shall cause the Title Agent to issue upon the Underwriter the Title
Commitment in an amount equal to the Purchase Price (with such affirmative endorsements as
may be reasonably obtainable and requested by City) and having an effective date subsequent to
the Agreement Date. The Title Commitment shall show that Seller is vested with and can
convey to City good, marketable, and insurable easement title to the Property, and to the City
Easement, subject only to the Permitted Exceptions. City will have until thirty (30) business
days after receipt of the Title Commitment within which to cause the Title Commitment and
Survey to be examined and to notify Seller of any objections to Seller's title reflected by the
Title Commitment and/or Survey. Seller may, but shall have no obligation to, elect to cure or
remove, at or prior to Closing, any objection raised by City. If Seller elects not to, or is unable
to, cure or remove any objection ,City, at City's sole option, may:
(a) accept title to the Property, and the City Easement, in its then
existing condition without an adjustment in the Purchase Price and proceed with Closing; or
(b) terminate this Agreement by written notice to Seller, in which case
this Agreement will be null and void and the parties hereto will have no further rights or
obligations hereunder.
3.2 Survey. Seller has delivered to Buyer a current survey of the Land, dated
[FILL IN], 2010. Within thirty (30) business days after the Agreement Date, Buyer may obtain
an updated or new survey at Buyer's cost (the "Survey") certified to Buyer, the Title Agent, and
the Underwriter and including a surveyor's certificate approved by Buyer. If the Survey shows
any encroachment, hiatus, or other condition which would affect the marketability of title to the
Land; or the conveyance of marketable, insurable easement title to the Property and/or the City
Easement; or could have an effect upon the use of the Property in general; or upon the use of the
Property specifically for the West Avenue Bridge Project, Buyer will have the right to object to
such condition as a defect in title pursuant to the provisions of Section 3.1 hereof.
3.3 Subsequent Matters. If subsequent to the effective date of the Title
Commitment new title exceptions are discovered or if subsequent to the certification date of the
Survey new matters of survey are discovered, City shall have a period of thirty (30) business
days after City has actual knowledge thereof to raise new objections, in which case the
provisions of Section 3.1 and/or Section 3.2 as applicable shall thereupon apply as to the new
objections.
Section 4. Seller's Representations and Warranties. Seller hereby represents and
warrants to City as follows:
4.1 Due Execution and Performance. This Agreement has been duly executed
and delivered by Seller and constitutes the legal, valid, and binding obligation of Seller,
enforceable in accordance with its terms. The City Easement and all other documents,
instruments and agreements required to be delivered by Seller pursuant to this Agreement
including, without limitation, a covenant or covenant in lieu of unity of title for the Land, will be,
when executed and delivered, duly executed and delivered by Seller and constitute the legal,
valid and binding obligations of Seller enforceable in accordance with their respective terms.
Neither the execution, delivery, or performance of this Agreement, or any document, instrument
or agreement required to be delivered by Seller pursuant hereto, nor the consummation of the
transactions contemplated hereby, is prohibited by, or requires Seller to obtain the consent,
approval, or authorization of, or notice to or filing or registration with, any person, public
authority, court, or any other entity having jurisdiction over Seller or the Property.
4.2 Binding Agreements. The execution and delivery by Seller of this
Agreement and the performance by Seller of Seller's obligations hereunder including, without
limitation, execution and delivery of the City Easement, do not and will not conflict with, or
result in, a breach of, or a default or violation under, any contract, agreement, or arrangement to
which Seller is a party, or any statute, decree, judgment, regulation, order, or rule of any
governmental authority or court having jurisdiction over Seller or the Land.
4.3 Mechanic's Liens. At Closing, there will not be any unpaid bills for labor,
services, or work performed or rendered upon the Land, or for materials or supplies furnished or
delivered to the Property and Land, that could result in the filing of mechanics', materialmen's,
or laborers' liens upon the Property or the Land.
4.4 Litigation. There are no suits or proceedings pending or, to Seller's
knowledge, threatened against or concerning Seller or any portion of the Land. Seller has
received no written notice and has no knowledge of any pending or threatened condemnation,
taking or similar proceeding affecting the Land, or any portion thereof, or any pending public
improvements in or about any portion of the Land that could result in special assessments or
assessments against or affecting the Land.
4.5 Sales Taxes. Seller has paid all sales taxes due with respect to the Land
and any rents or other revenue therefrom.
4.6 Hazardous Substances. Other than as disclosed by the environmental
reports delivered to the City, that are listed in Schedule 4.6 hereto, Seller has no knowledge of (i)
any Hazardous Substance present on or within the Land or otherwise adversely affecting the
Land; (ii) any present or past generation, recycling, reuse, sale, storage, handling, transport,
and/or disposal of any Hazardous Substance on or within the Land; or (iii) any failure to comply
with any applicable governmental, environmental laws, regulations, ordinances or orders relating
to the generation, recycling, reuse, sale, storage, handling, transport, and/or disposal of any
Hazardous Substance. City is entitled to conduct an environmental audit (including, without
limitation, a Phase I evaluation) of the Land prior to Closing. The Seller does not assume any
responsibility or liability for Hazardous Substances on or within the Property, and City shall be
solely responsible for, and agrees to perform at City's sole cost, all remediation costs with
respect thereto, including any remediation due to naturally occurring arsenic levels.
4.7 Contracts. There are no Contracts in effect with respect to the Property.
4.8 Leases. There are no leases or occupancy agreements in effect with
respect to the Property.
4.9 Adverse Information. Seller has no knowledge of any judicial or
administrative action, or any action by adjacent landowners, or any other fact or condition
relating to the Land that would adversely affect the City Easement or development and use of the
Property by the City for the West Avenue Bridge Project.
4.10 Compliance With Laws. The Land and the Property, including the
present uses thereof, are in compliance with all applicable .federal, State, and local laws,
ordinances, regulations, statutes, rules and restrictions (collectively, "Laws") pertaining to and
affecting the Land and the Property.
Section 5. City s Representations and Warranties. City hereby represents and
warrants to Seller as follows:
5.1 Due Execution and Performance. This Agreement has been duly
executed and delivered by City and constitutes the legal, valid, and binding obligation of City
enforceable in accordance with its terms. The City has full power and authority to execute,
deliver, and perform this Agreement, and consummate the transactions contemplated hereby.
Section 6. Seller's Representation and Warranties; Covenants of Seller. Seller
hereby represents and warrants to and covenants with City as follows:
6.1 Compliance. Prior to the Closing, Seller will continue to comply with all
contracts, authorizations, approvals, and legal requirements applicable to the Property.
6.2 Pro e Seller will execute and deliver the City Easement t to City at
Closing. Seller will maintain the Property in its existing condition and will deliver the Property
to City at Closing in the same condition as exists on the Agreement Date, normal wear and tear
excepted. Seller will not perform or allow the performance of any construction on the Property
or enter into any new contracts, leases, or other agreements affecting or binding upon the
Property after the Agreement Date without City's prior written consent.
6.3 Cooperation. Seller will cooperate with City in good faith in
connection with all investigations, examinations, and inspections being made by City with
respect to this transaction.
Section 7. City's Inspection Period.
7.1 Inspection Period. City will have the right, from and after the
Agreement Date, through 6:00 p.m. on the date that is one (1) year after the Agreement Date (the
"Inspection Period") to inspect and investigate the physical and other conditions of or with
respect to the Property and the Land. City's inspections and investigations of the Property and
the Land may include but shall not be limited to (i) review of surveys, plans, title insurance
policies, engineering studies, site plans, and any other materials, documents, tests, studies, and
reports related to the Property and the Land which Seller has in its possession or control; (ii)
review of permits, plans and other documents relating to the Property and the Land; (iii) review
of the status of title and all zoning and/or government restrictions and requirements; (iv)
obtaining an environmental audit of the Property and the Land; (v) performance of engineering
and soil tests, analyses and other investigations as City deems necessary and appropriate; and
(vi) investigation and/or review of any other facts, circumstances or matters which City deems
relevant to its proposed purchase of the City Easement, and to the development of the Property
for the proposed West Avenue Bridge Project. Seller agrees to cooperate with City in all
investigations and to provide to City promptly copies of all items, documents and materials that
City may reasonably request and that Seller or its attorneys or agents have in their possession or
control. City shall have full access to the Property and the Land for the purpose of conducting
the foregoing inspections and investigations subject to prior reasonable notice to Seller. City
shall be responsible for all costs related to its inspections and investigations during the Inspection
Period including, without limitation, all costs of repair and for returning the Property and the
Land to its original condition. Buyer shall (to the extent permitted by, and subject to the
limitations on liability under Section 768.28, Florida Statutes) indemnify Seller for any and all
damages to person or properly resulting from Buyer's inspections and investigations during the
Inspection Period.
7.2 Termination by City. City will have the right, which may be exercised by
sending written notice to Seller at any time during the Inspection Period, to terminate this
Agreement if, in City's sole opinion, the Property is not suitable or feasible for City's intended
purpose of developing the West Avenue Bridge Project, or that such development and use may
be unusually expensive (including for example, the presence of Hazardous Substances or adverse
soil or subsurface conditions}. Upon any such termination, this Agreement will be null and void
and the parties will have no further rights or obligations hereunder. If Buyer fails, or elects not,
to give written notice of termination prior to the expiration. of the Inspection Period, this
Agreement shall remain in effect in accordance with its terms.
In the event that the last day of the Inspection Period occurs on a legal holiday, such date
will be extended to the next succeeding regular business day.
Section 8. Conditions Precedent to Closing. The obligations of City to complete the
Closing on the purchase of the City Easement pursuant to this Agreement are conditioned upon
the fulfillment of each of the following conditions on or before the Closing Date.
8.1 Correctness of Representations and Warranties. Each of the
representations and warranties of Seller set forth herein shall have been true and complete in all
material respects when made and on the Closing Date as if made at and as of that time.
8.2 Absence of Adverse Change. Between the Agreement Date and the
Closing Date, no materially adverse change in the Land or the Property shall have occurred and
no fact shall have arisen that has or could be expected to have a material adverse affect on the
Land or the Property.
8.3 Development Agreement. The City Commission shall have approved,
and the parties hereto shall have executed, the Development Agreement.
8.4 If any condition(s) precedent set forth in this Section 8 are not satisfied as
of the Closing Date, Seller shall be afforded a period of thirty (30) days in which to cause them
to be satisfied (or such greater period, not to exceed an additional ninety (90) days, as City shall
specify). Seller agrees to use good faith efforts to attempt to satisfy such conditions during such
cure period. If the conditions are not satisfied within such cure period, then City may either (a)
waive satisfaction of such condition(s) and proceed to Closing; or (b) terminate this Agreement
by written notice to Seller, in which event this Agreement will be null and void and the parties
will have no further rights or obligations hereunder.
Section 9. Closine.
9.1 Closing Date; Closing Procedures.
(a) Subject to Section 8 hereof, and unless extended pursuant to the
provisions of this Agreement, the Closing will take place within ten (10) days after the
Inspection Expiration Date at the offices of the City Attorney or at such other place as the parties
may mutually approve. In the event the scheduled Closing Date falls upon a legal holiday, the
Closing will occur on the next succeeding regular business day.
(b) At Closing:
(i) City shall pay the purchase price;
(ii) Seller shall comply with all requirements and shall execute
and/or deliver all instruments that are required by or from Seller under Schedule B -Section 1 of
the Title Commitment for the City Easement and the Property;
(iii) the parties shall execute and record against the title to the
Land a memorandum setting forth the terms of this Agreement and referring to the party's rights
hereunder;
(iv) Seller shall simultaneously convey to City the City
Easement, subject only to the Permitted Exceptions and shall also deliver to City the executed
covenant, or covenant in lieu of unity of title, for the Land (the "Covenant");
(v) Seller shall comply with all requirements and shall execute
and/or deliver all instruments that are required by or from Seller under Schedule B -Section 1 of
the Title Commitment for the Property;
(vi) Seller and City shall execute the City Easement and the
Covenant and record it against title to all of the Land; and
(vii) neither party shall have any further rights or obligations
under this Agreement except as otherwise specified in this Section and the parties shall execute
such instrument as may be reasonably required to evidence termination of this Agreement and to
release any encumbrance or cloud on title created hereby (and the release of the memorandum
recorded pursuant to Section 9.1(b)(vii) above shall be recorded in the Public Records).
9.2 Closing Expenses.
(a) At Closing, City shall pay or cause to be paid the cost of recording
the City Easement and any corrective instruments, all documentary stamp taxes and surtax on
the City Easement (if applicable), any other applicable transfer or conveyance taxes, and the cost
of the Survey.
(b) At Closing, Seller shall pay or cause to be paid the cost of
recording the Covenant.
(c) Each party will pay its own attorneys' fees and fees owed to its
consultants or agents.
9.3 Delivery of Documents b~eller. At Closing, in addition to any other
documents specifically required to be delivered or acts required to be done pursuant to this
Agreement, Seller will deliver, or cause to be delivered, to City the following (each of which
shall be in form reasonably acceptable to City and Seller):
(a) The City Easement, conveying to City the ability to use,
perpetually, the Property then being conveyed to City, subject only to the Permitted Exceptions;
(b) a certificate of Seller, dated as of the Closing Date, certifying
(i) that the representations and warranties of Seller contained in this Agreement are true as of the
applicable Closing Date for such property in all respects; (ii) that there are no unpaid bills for
labor, materials, or services to the Property and no labor, services, or materials have been
undertaken or supplied which could be the basis for any claims against the Property; (ii) that
Seller is in sole and exclusive possession of the Property and that no other person or entity has
any right or claim to possession thereof; (iii) the information customarily required by title
insurance companies to insure title against matters arising during the "information gap"; and (iv)
that all sales tax owed with respect to the Property have been paid in full.
(c) an affidavit complying with the provisions of Section 1445(b)(2)
of the Internal Revenue Code of 1954, as amended, stating that Seller is not a foreign person;
(d) such evidence as the Underwriter and City shall reasonably require
to verify the due execution, delivery and enforceability of the documents executed and delivered
by Seller at Closing; and
(e) the Covenant for the Land.
9.4 Pronerty Revenues and Obligations. All revenue from the Property
attributable to periods prior to Closing shall belong solely to Seller. Seller agrees to pay and
hold City harmless from all obligations of every kind with respect to the Property which arose or
are attributable to periods prior to Closing. Seller shall hold City harmless from all obligations,
liabilities, losses, damages, delays, and costs (including attorneys' fees and court costs) incurred
by City that arise from or under the Property; provided, however, the foregoing indemnity shall
not apply with respect to any liabilities, losses, damages, delays and costs caused by City's gross
negligence or willful misconduct. The provisions of this Section 8.4 shall survive Closing.
9.5 Execution and Delivery of Bilateral Agreements. At Closing, in addition
to any other documents required to be executed and delivered in counterparts by both parties,
Seller and City will execute and deliver to each other closing -statements accounting for sums
adjusted or disbursed at Closing.
9.6 Post-Closing Obligations.
After Closing, Seller and City shall cooperate to exchange any corrective
documents, if and to the extent necessary, so that the legal descriptions of the Property
and the Land match the as-built locations of any improvements upon completion of the
West Avenue .Bridge Project on the Property; provided however, the City shall not
construct any improvements on Seller's Land outside of the Property and shall correct
any such construction immediately upon written notice of same. The provisions of this
Section 9.6 shall survive Closing.
Section 10. Brokers. Each party represents and warrants to the other that it has not
consulted, dealt, or negotiated with any real estate broker, finder, salesman or agent to whom a
commission or other compensation is or could be due in connection with the sale of the Property
by Seller to City, or any other matter associated with this Agreement. Each party hereby agrees
to hold harmless the other from any costs, liabilities or expenses, including reasonable costs and
attorneys' fees incurred in trial, appellate, or post judgment proceedings, related to or arising out
of any breach of the representations, warranties and agreements set forth in this Section 10.
Anything to the contrary notwithstanding, the representations, warranties and agreements of this
Section 10 will survive closing of the transactions which are the subject of this Agreement and
the delivery of the City Easement, or any earlier termination of this Agreement.
Section 11. Default.
11.1 City's Default. If City fails or refuses to perform any of City's obligations
set forth in this Agreement, Seller's sole remedy will be to terminate this Agreement, and, as
consideration therefore and as agreed and liquidated damages in full settlement of all claims of
Seller against City related to the transaction which is the subject of this Agreement, City shall
agree to waive any Payment in Lieu of Taxes (PILOT) fees related to the HACMB Project or
another affordable housing development that Seller may choose to develop upon the Land or any
portion thereof, for a period of up to twenty five (25) years, commencing with the issuance of a
Certificate of Completion (C.C.) or Certificate of Occupancy (C.O.) for such project.
Thereafter, this Agreement will be null and void and the parties hereto will have no further rights
or obligations hereunder. The City's obligation to waive the PILOT fees for Seller's project, as
provided in this Section 11.1, shall survive termination of this Agreement.
11.2 Seller's Default. In the event Seller fails or refuses to perform any of
Seller's obligations under this Agreement, City may pursue its remedies at law and/or in equity,
including, without limitation, (a) terminating this Agreement; and/or (b) the right to specific
performance.
Section 12. Miscellaneous.
12.1 Liti ation. In the event of any litigation between Seller and City
concerning the terms of this Agreement, the prevailing party will be entitled to reimbursement of
its reasonable costs and expenses, including attorneys' fees, incurred in trial, appellate and post-
judgment proceedings. Each party hereby waives trial by jury in any action, proceeding or
counterclaim brought by either of the parties against the other in connection with any
matter whatsoever arising out of or in any way connected with this Agreement, the
relationship of the parties, or any claim of injury or damage relating to any of the
foregoing, or the enforcement of any remedy under any statute with respect thereto.
12.2 Notices. Notices required or permitted to be given pursuant to the terms
of this Agreement may be given by the parties' attorneys and will be delivered in person or sent
by certified mail, return receipt requested, postage prepaid, by recognized contract carrier (such
as UPS or FedEx) providing signed receipt for delivery, or by facsimile transmission, and will be
deemed delivered on the date of delivery, if in person or facsimile transmission, two (2) days
following the deposit with the Postal Service, if sent by mail, or one (1) day following deposit
with the carrier for next day delivery, if sent by contract carrier. Notices from City may be given
by the City Manager or Assistant City Manager. Notices will be delivered at the following
addresses/facsimile numbers, subject to the right of any party to change the address/facsimile
number at which it is to receive notice by written notice to the other party:
To City:
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
Attention: Jorge M. Gonzalez, City Manager
Telephone: (305) 673-7010
Facsimile: (305) 673-7782
Copy to:
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
Attention: Kevin Crowder
Telephone: (305) 673-7010
Facsimile: (305) 673-7782
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
Attention: Jose Smith; City Attorney
Telephone: (305) 673-7470
Facsimile: (305) 673-7002
To Seller:
Housing Authority of the City of Miami Beach
200 Alton Road
Miami Beach, Florida 33139
Attention: Miguell del Campillo, Executive Director
Telephone: (305) 532-6401
Facsimile: (305) 674-8001
Copy to:
Figueredo &Boutsis, P.A.
18001 Old Cutler Road, Suite 533
Miami, Florida 33157
Attention: Eve A. Boutsis, Esq.
Telephone: (305) 235-9344
Facsimile: (305) 235-9372
12.3 Integration and Severability. This Agreement and the Exhibits and
Schedules hereto (all of which are hereby incorporated herein and made a part hereof by
reference) set forth the entire understanding of City and Seller with the respect to the matters
which are the subject of this Agreement, superseding and/or incorporating all prior or
contemporaneous oral or written agreements, and may be changed, modified, or amended only
by an instrument in writing executed by the party against whom the enforcement of any such
change, modification or amendment is sought. Any provision of this Agreement which is
prohibited or unenforceable will be ineffective to the extent of such prohibition or invalidity
without invalidating the remaining portions hereof.
12.4 Successors and Assi ns. This Agreement will inure to the benefit of and
be binding upon, and is intended solely for the benefit of, the parties hereto, and their respective
heirs, personal representatives, successors, and assigns; and no third party will have any rights,
privileges or other beneficial interests herein or hereunder. Neither party shall have the right to
assign this Agreement without the prior written consent of the other.
12.5 Construction. Headings and similar structural elements set forth in this
Agreement are intended for ease of reference only, and are not intended, and will not be
construed, to reflect the intention of the parties or to affect the substance of this Agreement. This
Agreement has been negotiated at arm's length between Seller and City, each represented by
legal counsel of its choice and having an ample opportunity to negotiate the form and substance
hereof, and therefore in construing the provisions of this Agreement the parties will be deemed to
have had equal roles in drafting. Each entity comprising Seller shall be jointly and severally
liable for all of Seller's obligations and liabilities hereunder.
12.6 Survival. Except as otherwise provided in this Section to the contrary, the
warranties and representations of City and Seller contained herein shall survive the Closing and
the delivery of the deed. If (i) Seller gives City notice prior to Closing of the untruth or
inaccuracy of any representation or warranty contained in this Agreement, or (ii) City otherwise
obtains actual knowledge (which for purposes of this Section 12.6 shall mean only the present
actual knowledge of the City Manager and not any constructive or imputed knowledge) prior to
Closing of the untruth or inaccuracy of any representation or warranty contained in this
Agreement, and City nevertheless elects to close this transaction, such representations and
warranties shall not survive the Closing. Otherwise, the representations and warranties made in
this Agreement shall survive the Closing through but not beyond the Limitation Date after which
such representations and warranties shall be deemed merged into the Closing documents. The
limitation shall not apply to the prosecution of any claim made and action commenced in
accordance with clauses (a) and (b) below on or prior to the Limitation Date. Seller and City
agree that, notwithstanding any provision of this Agreement or any provision of law to the
contrary, any action which may be brought for the untruth or inaccuracy of any representation or
warranty in this. Agreement (a "Misrepresentation Claim") shall be forever barred unless, no later
than 365 days following the Closing Date ("Limitation Date"), the party claiming such
Misrepresentation Claim (a) delivers to the other a notice of the Misrepresentation Claim setting
forth the basis for such Misrepresentation Claim, and (b) files a complaint or petition against the
other party alleging such Misrepresentation Claim in an appropriate Federal district or state court
and serves the same upon the party upon whom the claim is made. The provisions of this
Section 12.6 shall apply only to warranties and representations set forth in this Agreement and
not to covenants or other provisions that by their terms survive closing nor to any warranties
contained in any deeds or other instruments executed or delivered at Closing.
12.7 Governing Law. This Agreement is governed by and will be construed in
accordance with the internal laws of the State of Florida.
12.8 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which will constitute the same
instrument.
12.9 Further Assurances. In addition to the obligations required to be
performed under this Agreement by the parties hereto at the closing, each such party agrees to
perform such other acts, and to execute, acknowledge and deliver subsequent to the Closing such
other instruments, documents and other materials, as the other party may reasonably request in
order to effectuate the consummation of the transactions contemplated herein, and to complete
construction of, and to operate the Project. The provisions of this Section 12.9 shall survive
Closing.
12.10 No Partnership. This Agreement does not and shall not be construed to
create a partnership, joint venture or any other relationship between the parties except the
relationship of seller and purchaser.
[The remainder ofpage intentionally left blank)
[Signatures appear on next pages]
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the
date(s) hereinafter set forth.
SELLER:
HOUSING AUTHORITY OF THE CITY OF MIAMI BEACH
A public housing authority
By:
Miguell del Campillo, Executive Director
CITY:
CITY OF MIAMI BEACH, FLORIDA, a municipal corporation
of the State of Florida
By:
Matti Herrera Bower, Mayor _
ATTEST:
BY~ SEAL]
Robert Parcher, City Clerk
Date:
APPROVED AS TO
FORM & LANGUAGE
& Fr1H EXECUTION
~~ ~6 ~D
ity me ~eT-'
EXHIBIT "A"
DESCRIPTION OF LAND
PARCEL A
Portion of Lot 11, Block 41, plat of BELLEVIEW SUBDIVISION, recorded in Plat Book 6 at
Page 114, Public Records of Miami-Dade County, Florida together with portion of Lot 9, Block
17, plat of SUBDIVISION OF THE WEST HALF OF BLOCKS 17, 40 AND 45, recorded in
Plat Book 6 at Page 165, Public Records of Miami-Dade County, Florida. Said portion of land
being more particularly described as follows:
Begin at the most northerly corner of said Lot I1, Block 4I, Said point being the POINT OF
BEGINNING of the Tract of Land herein described: thence North 5944' 44" East, along the
North line of the above mention Lot 9, Block 17, for a distance of 19.33 feet; thence due South
for a distance of 72.62 feet to a point of tangency; thence along the arc of a curve concave to the
northwest, having a central angle of 52~ 17' 19" and a radius of 25.00 feet for a distance of 22.82
feet; thence North 73~ 05'29" West for a distance of 103.56 feet to the point of intersection with
the northwesterly line of the above mentioned Lot 11. Said point of intersection being 94.00 feet
southwesterly of the most northerly corner of said Lot 11; thence North 59~ 44' 44" East, along
the northwesterly line of said Lot 11, for a distance of 94.00 feet to the POINT OF BEGNNING.
Said lands located in the City of Miami Beach, Florida and containing 4622.15 square feet more
or less or 0.1060 acres more of less.
PARCEL B
Begin at the most northerly corner of Lot 9 Block 17, plat of SUBDIVISION OF THE
WEST HALF OF BLOCKS 17, 40 and 45, recorded in Plat Book 6, at Page 165 Public
Records of Miami-Dade County, Florida. Said point being the POINT OF BEGINNING
of the tract of land herein described; thence North 59~ 44' 44" East, along the North line
of said Block 17 for a distance of 12.24 feet; thence due South for a distance of 117.57
feet to a point of tangency; thence along the arc of a curve concave to the northeast,
having a central angle of 9000' 00" and a radius of 25.00 feet, for a distance of 39.27
feet to a point of tangency with the north right-of--way line 17~' Street, as 17~' Street is
shown in the above mentioned plat of SUBDIVISION OF THE WEST HALF OF
BLOCKS 17, 40 and 45; thence due west, along the north right-of--way line of 17`x' Street,
for a distance of 10.00 radius of 85.00 feet and a central angle of 30~ 20'48" for a
distance of 45.02 feet; thence northwesterly, radial to the last described curve for a
distance of 13.62 feet to a point. Said point described in OFF REC. 16504, at page 3553
Public Records of Miami-Dade County, Florida; thence North 73~ 05'29" West for a
distance of 41.66 feet; thence along the are of a curve whose radius at this point bears
North 52~ 17' 19" West, having a radius of 25.00 feet and a central angle of 52~ 17' 19"
for a distance of 22.82 feet to a point of tangency; thence due north for a distance of
72.62 feet to the point of intersection with the northwesterly line of the above mentioned
Lot 9, Block 17; thence North 59~ 44'44" East, along with northwesterly line of said lot 9 for
a distance of 73.07 feet to the POINT OF BEGINNING. Said lands located in the City of Miami
Beach, Florida and containing 9001.65 square feet more or less or 0.2066 acres more or less.
PARCEL C
Lot 7, Block 17, Plat of SUBDIVISION OF WEST HALF OF BLOCKS 17, 40 AND 45,
recorded in Plat Book 6, at Page 165, Public Records of Miami-Dade County, Florida. Together
with portions of Lots 8 and 9 of said Block 17 being more particularly described as follows:
Begin at the most northerly corner of said Lot 8, Block 17. Said point being to the POINT OF
BEGINNING of the tract of land herein described; thence South 59~ 44' 44" West, along the
northerly line of said Lot 8 for a distance of 67.76 feet; thence due South for a distance of
117.57 feet to point of tangency; thence along the arc of a curve concave to the northeast,
having a central angle of 90~ 00' 00" and a radius of 25.00 feet for a distance of 39.27
feet to a point of tangency. Said-point being in the north right-of--way line of 17~' Street,
as shown in the above mentioned plat of SUBDIVISION OF WEST HALF OF BLOCKS
17, 40 AND 45; thence due East along the north right-of--way line of 17~' Street for a
distance of 65.00 feet to a point. Said point being the southeast corner of the above
mentioned Lot 8, Block 17; thence bearing N 9~ 4' 21" W along the East line of said Lot
8 for a distance of 175.10 feet to the POINT OF BEGINNING. Said lands located in the
City of Miami Beach, Florida and containing 26,953 square feet more of less or 0.6187
acres more or less.
EXHIBIT "B"
PROPERTY EASEMENT
PARCEL A
Portion of Lot 11, Block 41, plat of BELLEVIEW SUBDIVISION, recorded in Plat Book 6 at
Page 114, Public Records of Miami-Dade County, Florida together with portion of Lot 9, Block
17, plat of SUBDIVISION OF THE WEST HALF OF BLOCKS 17, 40 AND 45, recorded in
Plat Book 6 at Page 165, Public Records of Miami-Dade County, Florida. Said portion of land
being more particularly described as follows:
Begin at the most northerly corner of said Lot 11, Block 41, Said point being the POINT OF
BEGINNING of the Tract of Land herein described: thence North 5944' 44" East, along the
North line of the above mention Lot 9, Block 17, for a distance of 19.33 feet; thence due South
for a distance of 72.62 feet to a point of tangency; thence along the arc of a curve concave to the
northwest, having a central angle of 52~ 17' 19" and a radius of 25.00 feet for a distance of 22.82
feet; thence North 73~ 05'29" West for a distance of 103.56 feet to the point of intersection with
the northwesterly line of the above mentioned Lot 11. Said point of intersection being 94.00 feet
southwesterly of the most northerly corner of said Lot 11; thence North 59~ 44' 44" East, along
the northwesterly line of said Lot 11, for a distance of 94.00 feet to the POINT OF BEGNNING.
Said lands located in the City of Miami Beach, Florida and containing 4622.15 square feet more
or less or 0.1060 acres more of less.
PARCEL B
Begin at the most northerly corner of Lot 9 Block 17, plat of SUBDIVISION OF THE
WEST HALF OF BLOCKS 17, 40 and 45, recorded in Plat Book 6, at Page 165 Public
Records of Miami-Dade County, Florida. Said point being the POINT OF BEGINNING
of the tract of land herein described; thence North 59~ 44' 44" East, along the North line
of said Block 17 for a distance of 12.24 feet; thence due South for a distance of 117.57
feet to a point of tangency; thence along the arc of a curve concave to the northeast,
having a central angle of 9000' 00" and a radius of 25.00 feet, for a distance of 39.27
feet to a point of tangency with the north right-of--way line 17~' Street, as 17~' Street is
shown in the above mentioned plat of SUBDIVISION OF THE WEST HALF OF
BLOCKS I7, 40 and 45; thence due west, along the north right-of--way line of 17~' Street,
for a distance of 10.00 radius of 85.00 feet and a central angle of 30~ 20'48" for a
distance of 45.02 feet; thence northwesterly, radial to the last described curve for a
distance of 13.62 feet to a point. Said point described in OFF REC. 16504, at page 3553
Public Records of Miami-Dade County, Florida; thence North 73~ 05'29" West for a
distance of 41.66 feet; thence along the are of a curve whose radius at this point bears
North 52~ 17' 19" West, having a radius of 25.00 feet and a central angle of 52~ 17' 19"
for a distance of 22.82 feet to a point of tangency; thence due north for a distance of
72.62 feet to the point of intersection with the northwesterly line of the above mentioned
Lot 9, Block 17; thence North 59~ 44'44" East, along with northwesterly line of said lot 9 for
a distance of 73.07 feet to the POINT OF BEGINNING. Said lands located in the City of Miami
Beach, Florida and containing 9001.65 square feet more or less or 0.2066 acres more or less.
EXHIBIT "C"
PERMITTED EXCEPTIONS
o
MIAMI BEACH
CITY OF MIAMI BEACH ~ -~
' .NOTICE O'F~A RUBLLCHEARING
~ N
, D
NOTICE IS HEREBY GNEN that a public hearing will be held by the City Commission of the City of Miami 69ach~on Wednesday, Juy 14, 2010 at
10:40 a.m. in the City.Commission Chambers at City Hall, located at 17D0 Convention Center Drive, Miami Beach,.Florida 33139 to consider
' C
_ ~ ,.
APPROVING,.FOLLOWING AFIRST READING AND PUBLIC HEARING, A PROPOSED DEVELOPMENT AGREEMENT (PURSUANT TO THE
"
' r-
.'
FLORIDA
:LOCAL GOVERNMENT DEVELOPEMNT AGREEMENT ACT") BETWEEN SHE CITY-0F-MIAMI BEACH, FLORIDA O:HE °CITY") AND N
O
THE HOUSING AUTHORITY OF THE CITY OF MIAMI BEACH ("HACIVIB~ FOR THE DEVELOPMENT OF THE FOLLOWING PROJECTS ON _
.O
CERTAIN.REAL PROPERTY OWNED BY HACMB, LOCATED AT 1231 -1251 'f 7"' STREET, MIAMI BEACH,'FLORIDA (THE "HACMB PROPERTY':
1.).AN AFFORDABLE ELDERLY HOUSING PROJECT WITH GROUND LEVEL
NEIGHBORHOOD-ORIENTED COMMERCIAL SP
C -
'
,
E, WHICH WILL
A
BE DESIGNED, DEVELOPED, AND CONSTRUCTED BY HACMB (THE °HACMB PROJECT'; AND 2) A PUBLIC RIGHT OF WAY, INCLUDING A
BRIDGE, FOR VEHICULAR AND PEDESTRIAN ACCESS, CONNECTING WESTAVENUEAND DADE BOULEVARD
TO BE DES
G
E Ot
W
,
I
NED, DEVELOP
D,
AND CONSTRUCTED BY TF)E CITY ON AND OVER A PERPETUAL EASEMENT ON'THE HACMB PROPERTY (fHE "CITY EASEMENT'); WHICH
EASEMENT.THE•CITYlNTENDS RO')'URCHASE FROM HACMB PURSUANT TO A SEPARATE PURCHASE AND SALE.AGREEMENT BETWEEN
'THE CITY,AND HACMB (FHE,CITY'3 PROJECT ON THE CITY EASEMENT fS HEREINAFTER REFERRED' TO AS THE'WVEST AVENUE BRIDGE
J
PRO
ECT'.,
Inquiries, including a copy of the proposed Development Agreement, may be directed to th@ Office ofthe City lvlanager`at (305)673-7010
INTERESTED PARTIES are invited to `appear'at this meeting or tie represAnted by an .agent or to express their views in writing addressed to the City
Commission c% the City Clerk, 1700.Convention,Center Drive, 1°' Floor, City HaIf,~Nliami,8each, Florida.33139.,This meeting may be:opened and.
. continued and undersuch circumstances additional legal notice would not be provided.
Robert E. Peroher,`C'dy Clerk ~ ~ ,:
. City of Miami Beach ~~
Pursuant to Section 266.0105,•FL Statutes, the City.hereby.advises the.public~that: if ;a person decides to appeal any decision made by the City
Commission with respect fo ariy matter considered at Rs meeting or its hearing, such person must ensure that a verbatim recdrd of the proceedings.is
made, which record includes the testimony,end evidence upoh whiChxttiQ appeaPisto be based. Thisnotioe does not'constitute corisant by the City for the
introduction or admission of otherwise inadmissible or irrelevant evidence,, nor does K authorize challenges or appeals not otherwise allowed by law.
In accordance wkh the'Americans with Disabilities Act of 1990 persons needing special acgommodation to participate in this proceeding, nr to request
information on access for persons•with disabilRies, or to request this publication in accessible fortnat,'or to requestsign language interpreters, should i
conYacYthe City Clerk's office at (305) 673-7411, no later than four days prior to the proceeding. ' H hearingimpaired, contact the City Clerk's office via
the Florida Relay Service numbers, (800) 955-877.1 (TTY) or (800) 955-8770 (VOICE). ~, ~ ~ ~ 6 ~ ~
A ,_