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Development Agreement with 8701 Collins Development LLC c2o1y- g8S 9 This instrument was prepared by (record and return to): Jeffrey Bercow, Esq Bercow Radell & Fernandez, P.A. 200 S. Biscayne Boulevard, Suite 850 Miami, Florida 33131 (305) 377-6220 (Space reserved for Clerk) DEVELOPMENT AGREEMENT THIS DEVELOPMENT AGREEMENT (the "Agreement") is made and entered into as of the o)7 day of A10ZYYtk>0`- 2014, by and among the CITY OF MIAMI BEACH, a Florida municipal corporation (the "City"), and 8701 COLLINS DEVELOPMENT LLC, a Delaware limited liability company (the "Owner"): Introduction 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 between the parties pursuant to Sections 163.3220-163.3243, Florida Statutes, the "Florida Local Government Development Agreement Act" and Section 118- 4 of the City's Code. B. The Owner owns the property located at 8701 Collins Avenue, Miami Beach, Florida (the "Property") and intends to redevelop the Property with a hotel and/or residential development substantially in accordance with the provisions contained in this Agreement. C. The City is desirous of improving 87th Street which abuts the Property to the south, and 87th Terrace, which abuts the Property to the north, and has agreed to vacate the public right-of-way on 87.th Terrace and enter into a maintenance agreement with Owner for 87th Street in order to enhance access to the beach and improve the aesthetics of the area. 1 285861/9/TAMPA D. The City wishes to obtain from the Owner, and Owner is willing to grant, a permanent pedestrian access easement over 87th Terrace, to provide the public with pedestrian access from Collins Avenue to the beach. E. Pursuant to City Resolution No. 2014-28754 (the "Vacation Resolution"), the City approved the vacation of 87th Terrace, subject to and conditioned upon the terms and conditions contained in such Vacation Resolution, including, without limitation, (1) the grant by the Owner to the City of the 87th Terrace Easement; (2) the Owner and City entering into the maintenance agreement for 87th Street; (3) the Owner's commitment to expend funds and prepare the 87th Street Plans and the 87th Terrace Plans at the Owner's expense; (4) the Owner's commitment to expend funds and construct the 87th Street Improvements and the 87th Terrace Easement Improvements at the Owner's expense; and (5) the Owner's commitment to provide the City with a voluntary monetary contribution of $10,500,000 (the "Voluntary Contribution")to be allocated as described in Section 7 of this Agreement. F. 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 of Ordinances. 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 authority to adopt, implement and enforce (together with any other 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 inhabitants. G. Having fully considered this Agreement at two duly noticed public hearings in compliance with Section 163.3225 of the Act; having determined that the Project and this Agreement are in compliance with the City's Comprehensive Plan and Land Development Regulations as of the Effective Date; and having further determined that it is in the City's best interest to address the issues covered by this Agreement in a comprehensive manner, in compliance with all applicable laws, ordinances, plans, rules and regulations of the City, the City has agreed to enter into this Agreement with the Owner. H. The City has determined that the Project, the 87th Street and 87th Terrace Easement Improvements, and the Voluntary Contribution will benefit the City and the public. The Project and the 87th Street and 87th Terrace Easement Improvements will improve a northern entrance to the City and a significant North Beach location. The Project is compatible with the area and will serve as a catalyst in the City's continuing efforts to revitalize the North Beach area. The 87th Street Improvements and the 87th Terrace Easement Improvements will 2 285861/9/TAMPA renovate and beautify the northern end of North Shore Open Space Park and provide public pedestrian access to the beach. I. All capitalized terms used in this Introduction are defined in Section 3 or elsewhere in 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 (Sections 163.3220 - 163.3243, Florida Statutes (2014)). 3.2 "Closing" shall refer to the formal exchange of documents between the parties, as further described in Section 13 of this Agreement. 3.3 "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. 3.4 "Development Order" means any order granting, denying, or granting with conditions an application for a Development Permit. 3.5 "Development Permit" shall have the meaning set forth in Section 163.3221(5), Florida Statutes (2014). 3.6 "Effective Date" is the date when the City records the executed Agreement in the Public Records of Miami-Dade County, as provided in Section 163.3239, Florida Statutes (2014), and Section 19(a) of this Agreement. 3.7 "Execution Date" is the date the last of the required parties executes this Agreement. 3.8 "Land Development Regulations" shall have the meaning set forth in Section 163.3221(8), Florida Statutes (2014) and shall also include, without limitation, the definition of "land development regulations" in Section 114-1 of the City Code. 3 285861/9/TAMPA I 3.9 "Laws" means all ordinances, resolutions, regulations, the Comprehensive Plan, Land Development Regulations, and rules adopted by a local government having jurisdiction affecting the development of land, specifically including the City's Comprehensive Plan and the City's Land Development Regulations. 3.10 "Project" shall mean the construction and development of the Property (as defined in Section 3.11 below and to include the Owner's right, title and interest to the 87tH Terrace Property after the 87th Terrace Vacation Date) consistent with the RM-2 zoning regulations of the City's Land Development Regulations and the following provisions (with the stricter of the two prevailing): (a) The maximum total floor area permitted upon the Property shall not exceed that provided by the City's Land Development Regulations for the purposes of determining population densities and building intensities as required by the Act. In the event that the existing hotel is retained and the Property is developed as two building sites, the maximum permitted floor area on the Property shall be 260,085 square feet. In the event that the hotel is removed and the Property is reduced to a single building site, the maximum floor area developed on the Property shall be 202,358 square feet. (b) The height of any habitable building on the Property shall not exceed 200 feet to the top of the roof, and architectural projections will comply with the terms of the City's Land Development Regulations. (c) The uses permitted on the Property shall be up to 232 residential units, including single-family detached dwellings; townhomes; condominiums; apartments; apartment-hotels; hotels; condo/hotel units; and appurtenant facilities, including, without limitation, (i) facilities for conventions, banquets and other functions; (ii) spa; (iii) restaurants (subject to compliance with the City's neighborhood impact establishment regulations); (iv) parking facilities; (v) administrative office space; and (vi) any other hotel related uses including accessory uses commonly associated with hotels, as permitted under the City's Land Development Regulations; provided, however that in no event shall more than twenty-five percent (25%) of the accessory use be that which is generally classified as a "place of assembly" or "hall for hire" by the City. (d) The Project shall include on-site parking in accordance with the provisions of the City's Land Development Regulations. (e) The Owner shall cause the completion of the Project and shall obtain a certificate of occupancy or certificate of completion, as applicable, within five (5) years of the Effective Date. 3.11 "Property" shall mean the parcel of real property described in Exhibit A hereto. From and after the 87th Terrace Vacation Date, the Property shall include all of the Owner's right, title and interest in and to the 87th Terrace Property pursuant to the vacation of 4 285861/9/TAMPA 87th Terrace as approved pursuant to, and subject to and conditioned upon, the terms of the Vacation Resolution. 3.12 "Owner" means the person or entity undertaking the development of the Property, as defined in the preamble to this Agreement, or any permitted successors, assigns, or heirs thereof. 3.13 "Vacation Resolution" means the City's Resolution No. 2014-28754, approving, with conditions,the vacation of the 87th Terrace Property. 3.14 "87th Street Maintenance Agreement" shall mean the agreement between the City and Owner relating to the use, improvement, maintenance and operation of the public pedestrian access area located on the 87th Street Property, which agreement shall be in the form attached hereto as Exhibit B. 3.15 "87th Street Property" shall mean the area described in Exhibit "A" to the 87th Street Maintenance Agreement. 3.16 "87th Terrace Easement" shall mean a perpetual easement for public pedestrian traffic on, across and through the 87th Terrace Property for the purpose of allowing pedestrians to continue to use a portion of the 87th Terrace Property for public access to the beach and Atlantic Ocean, which easement shall be in the form attached hereto as Exhibit C. The property subject to the 87th Terrace Easement shall be referred to as the "87th Terrace Easement Property". 3.17 "87th Terrace Property" shall mean the area described in Exhibit "A" to the 87th Terrace Easement. 3.18 "87th Terrace Vacation Date" shall mean the date when the actual vacation of the 87th Terrace Property becomes effective in accordance with the terms of the Vacation Resolution, and as set forth in subsection 6(b)(iii) of this Agreement. 3.19 "87th Street Improvements" shall mean the improvements to be made to the 87th Street Property as depicted in the 87th Street Plans, and as further described in Section 8 of this Agreement. 3.20 "87th Terrace Easement Improvements" shall mean the improvements to be made to the 87th Terrace Property as depicted in the 87th Terrace Plans, and as further described in Section 9 of this Agreement. 3.21 "87th Street Plans" shall mean the plans, designs, and drawings including any revisions and enhancements thereto, depicting the 87th Street Improvements, as further described in Section 8 of this Agreement. 5 285861/9/TAMPA 3.22 "87th Terrace Plans" shall mean the plans, designs, and drawings including any revisions and enhancements thereto, depicting the 87th Terrace Easement Improvements, as further described in Section 9 of this Agreement. 4. 87th Street Maintenance Agreement. Subject to the terms and conditions of this Agreement, at the Closing the Owner and the City shall execute the 87th Street Maintenance Agreement in the form attached hereto as Exhibit B. 5. 87th Terrace Easement. Subject to the terms and conditions of this Agreement and the Vacation Resolution, the 87th Terrace Easement shall be granted by the Owner to the City and recorded in the Public Records of Miami-Dade County, Florida, promptly after the 87th Terrace Vacation Date, and shall be in the form attached hereto as Exhibit C. 6. Vacation of 87th Terrace and Voluntary Contribution. (a) The Owner submitted an application to the City for the vacation of 87th Terrace and, on September 17th, 2014, after second reading public hearing, the City Commission approved the Vacation Resolution. The 87th Terrace Property shall be included within the Property as of the 87th Terrace Vacation Date. At that time, the City shall deliver to Owner all instruments reasonably required to effectuate the vacation of the 87th Terrace Property, includin g, without limitation a certified copy of the executed Vacation Resolution. (b) As a condition to the City's approval of the Vacation Resolution, Owner shall make a Voluntary Contribution to the City, in the amount of$10,500,000. Owner shall pay the $10,500,000 Voluntary Contribution to the City as follows: (i) The Owner shall make the first payment, in the amount of $1,000,000, within ten (10) business days following the City Commission's (A) approval of the Vacation Resolution and (B) final approval of this Agreement at the second public hearing. This payment will be non-refundable. (ii) The Owner shall apply for a full building permit, as such term is defined in the City's Land Development Regulations, for the Project, using commercially reasonable efforts, no later than February 19, 2016. (iii) The Owner shall pay the City $4.5 million on the earlier of (A) within ten (10) business days of the issuance of a full building permit for the Project, or (B) November 19, 2016. Following the City's receipt of said payment and so long as there is no pending or uncured Event of Default (as hereinafter defined) hereunder, and Owner and City have successfully closed in accordance with the requirements of Section 13 hereof, the 87th Terrace Easement shall be released from escrow and the 87th Terrace Vacation Date shall become effective. Additionally, as of such date the 87th Terrace Easement Property shall be free and clear of all liens, encumbrances, rights of occupancy, or other matters except only for any then-existing mortgage encumbering the Property; provided 6 285861/9rrAMPA that the holder of any such mortgage shall execute and deliver an appropriate subordination agreement, in a form which will be reviewed and approved by the City, in its reasonable discretion, subordinating the lien and rights of such mortgage holder to the rights of the City and the public. Notwithstanding the preceding, the occurrence of the 87th Terrace Vacation Date shall not relieve Owner of its obligations to diligently prosecute and complete the 87th Street and 87th Terrace Improvements. (iv) The Owner shall pay the remaining $5 million in four (4) equal payments of $1.25 million every six (6) months starting on the earlier of: (A) six (6) months after the City's issuance of the full building permit for the Project, or (B) May 19, 2017, provided, however, that the fourth and final installment shall be paid no later than ten (10) days prior to the issuance of a temporary certificate of occupancy (the "TCO") or certificate of occupancy (the "CO"), whichever comes first, for the Project. In addition to declaring an Event of Default under this Agreement, the City may condition and withhold the issuance of the TCO and/or CO for the Project pending full and final payment of the remaining balance of the Voluntary Contribution. The $5 million payment shall also be non-refundable, as and when each payment is made. 7. City Allocation of Voluntary Contribution. The Voluntary Contribution will be allocated in accordance with the terms of City Resolution No. 2014-28815. 8 87th Street Improvements. The Owner, at its sole expense, shall design, construct and install the 87th Street Improvements. (a) The Owner shall cause the 87th Street Plans to be prepared by an architect or other design professional selected by the Owner and approved by the City (such approval by the City shall be proprietary in nature, as the owner of such property, and is not to be unreasonably withheld or delayed). The 87th Street Plans shall be submitted to the City, to its City Manager, within ninety (90) days of the Effective Date. The City shall have twenty (20) business days to review the 87th Street Plans and provide its written comments, if any, to Owner. The Owner shall address such comments and respond with revised 87th Street Plans within twenty (20) business days of its receipt of the City comments. This process shall be repeated until the City approves the 87th Street Plans. Owner's failure to obtain the City's approval of the 87th Street Plans by the date which is two hundred seventy (270) days from the Effective Date shall be deemed an Event of Default under this Agreement. (b) Within one hundred eighty (180) days after the City's proprietary approval pursuant to subsection 8(a) above, the Owner apply for and diligently pursue all required permits and final non-appealable approvals including, without limitation, all required Development Orders and Development Permits, for the 87th Street Improvements. 7 l 285861/9/TAMPA (c) The existing geometry of 87th Street shall be substantially followed in the design of the 87th Street Improvements. No change in the location of the sidewalks, curbs and gutters shall be permitted without the prior written consent of the City. (d) The 87th Street Improvements shall include, at a minimum, the following: (i) Lighting; (ii) Resurfacing, drainage, hardscaping, paving; (iii) Landscaping and related irrigation; (iv) Outdoor seating and other outdoor furniture; (v) Sidewalk; (vi) City-approved street signage; including directional signage, beach access signage and similar signs (including private signage); and (vii) Gates and fences (so long as at least a ten (10) foot access to the beach always remains open). (e) The Owner will complete the 87th Street Improvements by the date of the issuance of a temporary or final certificate of occupancy or certificate of completion, as applicable, for the Project. The City may condition and withhold the issuance of the TCO or CO for the Project pending completion of the 87th Street Improvements. (f) Owner hereby covenants and agrees that it shall invest, or cause to be invested, no less than $750,000 in hard construction costs for the 87th Street Improvements. Upon issuance of the TCO or CO for the Project, whichever is first, Owner shall certify to City that it has, in fact, expended the aforestated construction costs (g) Subject to the issuance of any necessary permits and approvals from the Florida Department of Transportation and the City's Public Works Department, the Owner shall design, fund and construct a pedestrian crosswalk across Collins Avenue at either 87th Street or 87th Terrace, along with a traffic signal if permitted. The location and design of the proposed crosswalk shall be at the sole discretion of the City. If the necessary permits are issued by the City and the Florida Department of Transportation, the crosswalk shall be completed and open to pedestrian traffic prior to the issuance of the TCO or CO for the Project. A portion of the $750,000 of construction costs for the 87th Street Improvement, not to exceed $187,500, may be used for such crosswalk and signal. The entire cost of the cross-walk will be borne by the Owner. 8 vl 285861/9/TAMPA 41,6 9 87th Terrace Easement Improvements. The Owner, at its sole expense, shall design, construct and install the 87th Terrace Easement Improvements within the area described in the 87th Terrace Easement. (a) The Owner shall cause the 87th Terrace Plans to be prepared by an architect or other design professional selected by the Owner and approved by the City (such approval by the City shall be proprietary in nature, as the owner of such property, and is not to be unreasonably withheld or delayed). The City shall review the 87th Terrace Plans as part of the development permit package(s) for the Project. The 87th Terrace Plans shall be submitted to the City, to its City Manager within ninety (90) days of the Effective Date. The City shall have twenty (20) business days to review the 87th Terrace Plans and provide its written comments, if any, to Owner. The Owner shall address such comments and respond with revised 87th Terrace Plans within twenty (20) business days of its receipt of the City comments. This process shall be repeated until the City approves the 87th Terrace Plans. Owner's failure to obtain the City's approval of the 87th Terrace Plans by the date which is two hundred seventy (270) days from the Effective Date shall be deemed an Event of Default under this Agreement. (b) The Owner shall direct the construction process and be responsible for entering into all contracts necessary for the construction of the 87th Terrace Easement Improvements and within one hundred eighty (180) after the City's proprietary approval pursuant to subsection 9(a) above, the Owner apply for and diligently pursue all required permits and approvals for the 87th Terrace Easement Improvements with the City's cooperation. (c) The 87th Terrace Easement Improvements shall include, at minimum, the following: (i) Lighting within the Easement area; (ii) Resurfacing, drainage, hardscaping, paving; (iii) Landscaping and related irrigation either within or adjacent to the 87th Terrace Easement area designed in a manner that benefits the 87th Terrace Easement; (iv) Sidewalk within the Easement area; (v) City-approved directional signage, beach access signage and similar signs (excluding private signage) either within the Easement area or immediately adjacent thereto; and (vi) Gates and fences (so long as a ten (10) foot access to the beach always remains open). 9 285861/9/TAMPA (d) The 87th Terrace Easement Improvements must be completed by the earlier of the date of the issuance of a TCO or CO for the Project. The City may condition and withhold the issuance of the TCO or CO for the Project pending completion of the 87th Terrace Easement Improvements. (e) Owner shall be responsible for the maintenance and security relating to the 87th Terrace Easement area. (f) Owner hereby covenants and agrees that it shall invest, or cause to be invested, no less than $ 350,000 in hard costs for the 87th Terrace Easement Improvements. Upon issuance of the TCO or CO for the Project, whichever is first, Owner shall certify to City that it has, in fact, expended the aforestated construction costs. 10. 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 following: (a) The inclusion of approximately 36,400 square feet of floor area development rights in the Property as a result of the City's vacation of the 87th Terrace right-of- way; and (b) The authorization of the 87th Street Improvements. 11. Applications for Development Approvals and Development Permits. Promptly following the effective date of this Agreement, the Owner will initiate and diligently pursue all applications for Development Orders and Development Permits that were not previously initiated. The City shall process all Development Permit and Development Order applications in a timely fashion and join in application(s) as may be necessary. Notwithstanding the foregoing, Owner shall be solely responsible for obtaining all final, non-appealable Development Orders and Development Permits for the Project, the 87th Street Improvements and the 87th Terrace Easement Improvements. No extension of any time period herein shall be deemed to be an extension of any time periods contained within the Development Permits or Development Orders. 12. Laws Governing this Agreement. For the entire term of this Agreement, the City hereby agrees that the City's Land Development Regulations governing the development of the Property as they exist as of the Execution Date of this Agreement shall govern the development of the Property and the Project during the Term. Notwithstanding the foregoing, the City may apply subsequently adopted laws or policies to the Property and the Project (particularly as they may relate to qualify of life issues such as, but not limited to noise, litter, and hours of operation) as permitted or required by the Act, including, without limitation, Section 163.3233(2), Florida Statutes, as same may be amended from time to time; provided, however, 10 285861/9/TAMPA that this provision shall not be deemed to apply to regulations governing height, floor area ratio (FAR), density, parking requirements or permitted uses. 13. Closing. So long as there is no pending or uncured Event of Default, the parties shall exchange (or deposit into escrow) those document as set forth below to effect the Closing hereunder. The Closing will occur within thirty (30) days of the Effective Date. (a) At the Closing, the City shall execute and/or deliver to Owner or into escrow the following items: (i) The 87th Street Maintenance Agreement. (ii) A certified copy of the Vacation Resolution for recording in the Public records of Miami-Dade County, which shall be held in escrow pursuant to the Escrow Agreement, the form of which is attached hereto as Exhibit H (the "Escrow Agreement"). (iii) The Escrow Agreement. (b) At the Closing, the Owner shall execute and/or deliver (as appropriate) to the City or into escrow the following items: (i) The 87th Street Maintenance Agreement. (ii) The 87th Terrace Easement, which shall be held in escrow pursuant to the'Escrow Agreement. (iii) Any subordination agreement that may be required pursuant to Subsection 6(b)(iii)(C) of this Agreement, which shall be held in escrow pursuant to the Escrow Agreement. (iv) The Escrow Agreement. 14. "As Is" Condition. Owner agrees to accept the 87th Terrace Property in "as-is" physical condition without any. representation or warranty by the City regarding physical condition. The City agrees to accept the 87th Terrace Easement with the underlying land and improvements (if any) in "as-is" condition, subject to Owner's subsequent compliance with the terms of Section 9 of this Agreement. 15. Compliance with Local Regulations Regarding Development Permits. This Agreement is not and shall not be construed as a Development Permit, approval or authorization to commence any development, fill, or other land modification. The Owner and the City agree that the failure of this Agreement to address a particular permit, approval, procedure, condition, fee, term or restriction in effect on the Execution Date of this Agreement shall not relieve Owner of the necessity of complying with the regulation governing said 11 285861/9/TA M PA permitting requirements, conditions, fees, terms or restrictions, subject to the terms of Section 12 of this Agreement. 16. Reservation of Rights. This Agreement shall not affect any rights that may have accrued to any party to this Agreement under applicable laws and each party hereto reserves any and all of such rights. 17. Consistency with the City's Comprehensive 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 Property and the Project are consistent with the City's Comprehensive Plan and Land Development Regulations (subject to all applicable requirements, permits and approvals). 18. Concurrency. Owner shall be solely responsible for obtaining all land use permits, including, but not limited to, all permits and approvals required pursuant to Section 163.3180, Florida Statutes (2014), with respect to concurrency requirements for roads, sanitary sewer, solid waste, drainage, potable water, parks and recreation, and schools (the "Concurrency Requirements"). Prior to applying for its building permit for the Project, Owner shall apply to the appropriate Governmental Authorities and obtain letters or other evidence that Owner has obtained all applicable Concurrency Requirements, and shall diligently and in good faith obtain such letters or other evidence that the Project meets all applicable Concurrency Requirements and shall pay such impact fees as may then be due or applicable to meet Concurrency Requirements. 19. Effective Date and Duration (Term). (a) Within fourteen (14) days following approval at two public hearings and execution by all parties, the City shall record the Agreement in the Public Records 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, Florida, and (ii) thirty (30) days have elapsed after the State of Florida land planning agency's receipt of a copy of the recorded Agreement. The 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 as described in this Section. (b) This Agreement shall run for an initial term of six (6) years.from the Effective Date (the "Term"), and may be extended by mutual consent of the City and the Owner subject to a public hearing pursuant to Section 163.3225, Florida Statutes. Consent to any extension of this Agreement is within the sole discretion of each party to this Agreement. No notice of termination shall be required by either party upon the expiration of this Agreement, and thereafter the parties hereto shall have no further obligations under this Agreement except that in no event shall the Owner's obligation to pay the Voluntary Contribution be extinguished by the expiration of the term if it has not otherwise been paid. 12 28586119/TAMPA /" l 20. Presently Permitted Development. The development that is presently permitted on the Property, including population densities, and building intensities and height, which are subject to this Agreement, are more specifically set forth in Exhibit D hereto. 21. Public Facilities to Serve the Property. A description of the public facilities that will service the Project of the properties subject to this Agreement, including who shall provide such facilities; the date any new facilities, if needed, will be constructed; and a schedule to assure public facilities are available concurrent with the impacts of the development is included as Exhibit E hereto. 22. Public Reservations and/or Dedications. A description of the reservations and/or dedications of land for public purposes that are proposed under the terms of this Agreement is included as Exhibit F hereto. 23. Required Development Permits. Attached and made a part hereof as Exhibit G is a listing and description of all local development permits approved or needed to be approved for the development of the Project. 24. Default. Each of the following shall be an "Event of Default" by Owner hereunder: (a) If Owner shall fail to observe or perform any term, covenant or condition of this Agreement on Owner's part to be observed or performed and Owner shall fail to cure or remedy the same within ten (10) days of Owner's receipt of written notice from the City, with respect to monetary defaults, or within thirty (30) days of Owner's receipt of written notice from the City with respect to non-monetary defaults (each, a "Default Notice"). If such non- monetary default is susceptible to cure but cannot reasonably be cured within said thirty (30) day period, then Owner shall have any additional sixty (60) day period to cure such failure and no Event of Default shall be deemed to exist hereunder so long as Owner commences such cure within the initial thirty (30) day period and diligently and in good faith pursues such cure to completion within such resulting ninety (90) day period from the date of the Default Notice. (b) If, after the Effective Date, Owner shall fail to obtain all Development Orders and Development Permits which are necessary for the Project, the 87th Street Improvements and the 87th Terrace Easement Improvements by November 19, 2018. (c) If, after the Effective Date, Owner shall fail to obtain a full building permit for the Project by November 19, 2016. (d) If, during the construction phase of the Project, the 87th Street Improvements and/or the 87th Terrace Easement Improvements, Owner shall stop work on any of the aforestated for a period in excess of ninety (90) days. (e) If, after the Effective Date, Owner has not obtained a final CO for the Project by November 19, 2018. 13 2858611917AMPA (f) If Owner shall make an assignment for the benefit of creditors, or shall admit in writing its inability to pay its debts generally as they become due, or shall consent to the appointment of a receiver or trustee or liquidator of all of its property or the major part thereof or if all or a substantial part of the assets of Owner are attached, seized, subjected to a writ or distress warrant, or are levied upon, or come into the possession of any receiver, trustee, custodian or assignee for the benefit of creditors. (g) If Owner shall commence a voluntary case under the Title 11 of the United States Code (the "Bankruptcy Code") ; or an involuntary proceeding is commenced against Owner under the Bankruptcy Code and relief is ordered against Owner, or the petition is controverted but not dismissed or stayed within one hundred fifty (150) days after the commencement of the case, or a custodian (as defined in the Bankruptcy Code) is appointed for or takes charge of all or substantially all of the property of Owner and is not discharged or dismissed within one hundred fifty (150) days; or Owner commences any other proceedings under any reorganization, arrangement, readjustment of debt, relief of debtors, dissolution, insolvency or liquidation or similar Law of any jurisdiction whether now or hereafter in effect relating to Owner; or there is commenced against Owner any such proceeding which remains undismissed or unstayed for a period of one hundred fifty (150) days; or Owner fails to controvert in a timely manner any such case under the Bankruptcy Code or any such proceeding, or any order of relief or other order approving any such case or proceeding is entered; or Owner consents to or approves of, in any such case or proceeding or the appointment of any custodian or the like of or for it for any substantial part of its property or suffers any such appointment to continue undischarged or unstayed for a period of one hundred fifty (150) days. In the event the City shall claim any Event of Default shall have occurred hereunder, the City's Default Notice shall state with specificity the provisions of this Agreement under which the Default is claimed, the nature and character of such Default, the date by which such Default must be cured pursuant to this Agreement, if applicable, and, if elected by the City, that the failure of Owner to cure such Default by the date set forth in such notice will result in the City having the right to terminate this Agreement. 25. Enforcement of Performance; Damages and Termination. If an Event of Default occurs hereunder, the City may elect any one or more of the following remedies: (a) Enforce strict performance by Owner; (b) Terminate this Agreement; or (c) Pursue any other remedy available to the City at law or in equity. The City's election of a remedy hereunder with respect to any one or more Events of Default shall not limit or otherwise affect the City's right to elect any of the remedies available to it hereunder with respect to any other Event of Default. 14 285861/9/TAMPA I In the event the City elects to terminate this Agreement after an Event of Default and such termination is stayed by order of any court having jurisdiction of any matter relating to this Agreement, or by any federal or state statute, then following the expiration of any such stay, the City shall have the right, at its election, to terminate this Agreement with five (5) days' written notice to Owner, Owner as debtor in possession or if a trustee has been appointed, to such trustee. 26. Strict Performance; Waiver. No failure by the 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 hereunder shall constitute a waiver of any such default, Event of Default or of such other covenant, agreement,term or condition hereunder. 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 With a copy to: City of Miami Beach, City Hall 1700 Convention Center Drive Miami Beach, Florida 33139 Attn: City Attorney With copies to: Squire Patton Boggs (US) LLP One Tampa City Center 201 N. Franklin Street, Suite 2100 Tampa, Florida 33602 Attn: Stacy H. Krumin If to Owner at: 8701 Collins Development, LLC c/o Terra Group 2675 S. Bayshore Drive Miami, FL 33133 Attn: David Martin With a copy to: Jeffrey Bercow, Esq. Bercow Radell & Fernandez, P.A. 200 S. Biscayne Blvd. 15 Jv 285861/9/TAMPA Suite 850- Miami, Florida 33131 Notices personally delivered or sent by overnight courier shall be deemed given on the date of delivery and notices mailed in accordance with the foregoing shall be deemed given three (3) days after deposit in the U.S. mails. The terms of this Section 27 shall survive the termination of this Agreement. 28. Governing Laws, Construction and Litigation. This Agreement shall be governed 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 Owner and the City agree that Miami-Dade County, Florida is the appropriate and exclusive state court venue, and that the U.S. District Court, Southern Division of Florida is the appropriate and exclusive federal court venue, in connection with any litigation between the parties with respect to this Agreement. All of the parties to this Agreement have participated fully in the negotiation and preparation hereof; and accordingly, this Agreement shall not be more strictly construed against any of the parties hereto. In construing this Agreement, captions, and section and paragraph headings shall be disregarded and the use of any gender shall include every other and all genders. All of the exhibits referenced in this Agreement are incorporated in, and made a part of, this Agreement. In the event of any litigation between the parties under this Agreement for a breach thereof, the prevailing party shall be entitled to reasonable attorney's fees and court costs at all trial and appellate levels. BY ENTERING INTO THIS AGREEMENT THE CITY AND OWNER EXPRESSLY WAIVE ANY RIGHTS EITHER MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY CIVIL LITIGATION RELATED TO, OR ARISING OUT OF, THIS AGREEMENT. The terms of this Section 28 shall survive the termination of this Agreement. 29. Severability. In the event any term or provision of this Agreement be determined by appropriate judicial authority to be illegal or otherwise invalid, such provision shall be given its nearest legal meaning or construed as deleted as such authority determines, and the remainder of this Agreement shall be construed to be in full force and effect. 30. Time of Essence. Time shall be of the essence for each and every provision hereof. 31. Entire Agreement. This Agreement, together with the documents referenced herein, constitutes 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. Neither party shall be bound by any agreement, condition, warranty nor representation other than as expressly stated in this Agreement. This Agreement may not be changed, altered or modified except by an instrument in writing signed by both parties hereto, subject to the requirements for the amendment of development agreements in the Act. 16 �l 285861/9/TAMPA 32. Other Agreements. This Agreement has no effect on any other agreement, the City's development orders, or declaration of restrictions otherwise encumbering the Property. Any and all agreements currently in the public records remain valid. The parties incorporate by reference each and every requirement set forth in the Act. 33. Binding Effect. The obligations imposed pursuant to this Agreement upon the Owner and upon the Property shall run with and bind the Property as covenants running with the Property, and this Agreement shall be binding upon and enforceable by and against the parties hereto, their personal representatives, heirs, successors, grantees and assigns. 34. Transfer and Assignment. The Owner shall not be entitled to assign or transfer its rights under this Agreement without the prior written consent of the City, in the City's sole and absolute discretion, except that the City will recognize a lender who has acquired the Property through a foreclosure sale or deed-in-lieu of foreclosure. Any such transferee (including through foreclosure or deed-in-lieu thereof) shall assume all remaining obligations of the Owner under this Agreement including, without limitation: (a) The Owner's obligation to pay the Voluntary Contribution to the City; (b) The Owner's obligation to grant and improve the 87th Terrace Easement area; and (c) The Owner's obligation to improve the 87th Street right-of-way; provided, however, at its sole discretion, the City may elect not to proceed with the Maintenance Agreement for the 87th Street right-of-way if performance under the Maintenance Agreement has not yet commenced; however, if performance 'under the Maintenance Agreement has commenced then the City may only terminate the Maintenance Agreement in accordance with its terms. Notwithstanding the foregoing, the Owner shall be permitted to assign this Agreement without the consent of the City after the earlier to occur of(i) issuance of the final CO for the Project; or (ii) payment of the full $10,500,000 Voluntary Contribution to the City. 35. Force Maieure and Third Party Challenges. Except as to the Owner's obligation to make the Voluntary Contribution payments in accordance with Section 6, above, time periods will be tolled due to force majeure (strikes, lockouts, acts of God, and other causes beyond the control of either party), and delays in obtaining permits from other governmental agencies. Notwithstanding the preceding, in the event that a third party (unrelated or unaffiliated with the City or the Owner) institutes a legal proceeding in a court of competent jurisdiction (the "Law Suit") challenging the validity of the Vacation Resolution or this Agreement then, if the Law Suit remains pending for more than eighteen (18) months after filing, the City may request that the Owner pay the remainder of the Voluntary Contribution then due, with sixty (60) days' notice to Owner. In such event, Owner shall pay the remainder of the Voluntary Contribution, and the actual vacation of the 87th Terrace Property shall 17 285861/9/TAMPA become effective. Additionally, the Owner shall defend, any Law Suit at its sole cost and using legal counsel reasonably acceptable to the City. Owner shall further indemnify and hold the City harmless from and against all claims, injury, damage, loss and liability, cost and expense (including attorneys' fees, costs and expenses) of any and every kind arising out of or relating to any Law Suit. This Section 35 shall survive the termination or expiration of this Agreement. 36. Indemnification of City. In addition to Owner's obligations set forth in Section 35 (including Owner's obligation to indemnify the City pursuant to that Section), Owner shall defend, indemnify and hold harmless the City, its agents, servants and employees, from and against any loss, cost, expense, claim, demand or cause of action of whatever kind or nature arising out of or related to the conduct, act or omission of Owner and/or its officers, directors, officials, employees, contractors and agents, related to (i) this Agreement, and/or (ii) the Project. The Owner shall directly pay all costs and expenses related to any expense or cost charged, or legal defense required by the City, using legal counsel reasonably acceptable to the City, pursuant to the foregoing. The City shall reasonably cooperate and collaborate (but at no expense to the City) with the Owner in connection with any legal proceeding in which the Owner is defending the City. This Section 36 shall survive termination or expiration of this Agreement. 37. Corporate Obligations. It is expressly understood that this Agreement and the 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 Commissioner of the City) or employees, as such of Owner, any 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 of all such rights and claims against, every such incorporator, stockholder, officer, director, elected or appointed official (including, without limitation, the Mayor and City Commissioner of the City) 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 consideration for, the execution of this Agreement. 38. No Conflict of Interest. Owner represents and warrants that no member, official or employee of the City has any direct or indirect financial interest in this Development Agreement nor has participated in any decision relating to this Development Agreement that is prohibited by law. Owner represents and warrants that 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. 39. Police Power. (a) The parties hereto recognize and agree that certain provisions of this Agreement require the City and its boards, departments or agencies, acting in their 18 285861/9/TAMPA 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 municipal ordinances, in the exercise of the City's jurisdiction under the police power. 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 Development Orders, as more fully set forth herein, and to timely process such applications. (b) 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 substantive due process to be accorded the applicant and any member of the public. Nothing in this Agreement shall be construed to prohibit the City from duly acting under its police power to approve, approve with conditions, or reject any public hearing application dealing with the Property. 40. Conflict. In the event of an inconsistency or conflict between the terms of this Agreement and the Vacation Resolution, the terms of this Agreement shall control. 19 285861/9/TAMPA EXECUTED as of the date first above written in several counterparts, each of which shall be deemed an original, but all constituting only one agreement. Signed, sealed and delivered CITY OF MIAMI BEACH, in the presence of: a Florida municipal corporation Print Name: +� S By: Print Name: �� Name: Attest: City Cl & • e t:f •• .`A Vn { V1 ice) �L''�`.�""'-,-�. 1✓� STATE OF FLORIDA ) n C0t ' i`, -� '7 F�� ' )SS �'� i J .A /-i COUNTY OF MIAMI-DADE The foregoing instrument was acknowledged befre ._me_ his 2 day of N®y-e rn be r , 2014, by 111 i I L ' i } �. as Mayor of the City of Miami Beach, a municipal corporation, on behalf of the Corporation. He is personally known to me or has produced as identification and who did (did not) take an oath. t NOT UBLIC tpptY p,, I-AYDA HERNANDEZ ° MY COMMISSION#FF025489 ijtrnande- EXPIRES*JUN 09,2017 Typed r Printed Name of Notary Bonded through 1st State Insurance My Commission expires: Serial No., if any: APPROVED AS TO FORM & LANGUAGE &FOR EXECUTION 20 City At of ey Date 285861/9/TA MPA 8701 COLLINS DEVELOPMENT LLC, a Delaware limited liability company By: Da id Mari Managing Member Pri;it Name: ✓ �1 urn/"s Print Wane: b Rj'4-r_ emu.wi©_S STATE OF FLORIDA ) SS: COUNTY OF MIAMI-DADE ) The foregoing instrument was acknowledged before me this day of ����� �" 2014 by David Martin, as managing member of 8701 Collins Development, LLC, a Delaware limited liability company, on behalf of the company. He is personally known to me or has produced rl Veer r5 1 C 'i-► � as i ntification and who did/did not take an oath. NOTARY PUBLIC Typed or printed Name of Notary My Commission expires: Serial No., if any y pVAy OINORAH ALD1253224 Notary Public-Sta •: :• My Comm.Expires S Commission I F 21 285861/9/TAMPA EXHIBIT A LEGAL DESCRIPTION OF PROPERTY The land referred to herein below is situated in the County of Miami—Dade, State of Florida, and is described as follows: All of Block 1; all of Block 10; and that portion of what was known as Airoso Way lying and including between the West line of said Block 1, and the East line of said Block 10; all of ALTOS DEL MAR NO. 2, according to the Plat thereof, recorded in Plat Book 4, Page 162, of the Public Records of Miami—Dade County, Florida; together with all right, title and interest in that land lying between the Easterly boundary of Black 1, of ALTOS DEL MAR No. 2, according to the Plat thereof, as recorded in Plat Back 4, Page 162, of the Public Records of Miami—Dade County, Florida, and the Erosion Control Line, according to the Plat thereof, recorded in Plat Book 105, Page 62, of the Public Records of Miami—Dade County, Florida. 22 285861/9/TAMPA wta//4 EXHIBIT B [87th STREET MAINTENANCE AGREEMENT] 23 285861/9/TAMPA EXHIBIT C [87th TERRACE EASEMENT] 24 285861/9/TAMPA EXHIBIT D PRESENTLY PERMITTED DEVELOPMENT (a) Permitted Development and Uses. The Property, including 87th Terrace, is designated as RM-2 Residential multifamily, medium intensity according to the City's adopted Comprehensive Plan. The Property, including 87th Terrace, as well as the North '/ of 87th Street, are zoned RM-2 Residential multifamily, medium intensity by the City's Land Development Regulations. The RM-2 zoning district permits single-family detached dwellings; townhomes; apartments; apartment-hotels; and hotels. The Property may be used for the purposes permitted and regulated in these land use designations and zoning districts, as further limited by the by the City's Land Development Regulations and Comprehensive Plan. (b) . Density, Building Heights, Setbacks and Intensities. The maximum density, heights, setbacks and intensities for any development on the Property shall be regulated by the City's Land Development Regulations, Comprehensive Plan and any applicable Federal, State or County laws and regulations. In the RM-2 land use designation, the maximum residential density is 100 dwelling units per acre. The intensity of hotel use is limited by such set back, height, floor area ratio, minimum room size and other provisions of the Land Development Regulations. THIS EXHIBIT DESCRIBES THE PRESENTLY PERMITTED DEVELOPMENT FOR PURPOSES OF THE ACT ONLY.THE PROJECT SHALL CONFORM TO THE DESCRIPTION PROVIDED IN SECTION 3.10 O F THIS AGREEMENT. 25 285861/9/TAMPA EXHIBIT E PUBLIC FACILITIES The proposed development will be serviced by those roadway transportation facilities currently in existence as provided by state, county, and local roadways. The proposed development will also be serviced by public transportation facilities currently in existence, as provided by Miami-Dade County, the City of Miami Beach, and such other governmental entities as may presently operate public transportation services within the City of Miami Beach. Sanitary sewer, solid waste, drainage, and potable water services for the proposed development shall 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 of Miami Beach. The proposed development shall be serviced by those existing educational facilities owned or operated by the Miami-Dade Public Schools District. The proposed development shall be serviced by those existing parks and recreational facilities owned or operated by the United States Government within Miami- Dade County, by the State of Florida, by Miami-Dade County, and by the City of Miami Beach. The proposed development shall be serviced by those existing health systems and facilities operated by the United States Government within Miami-Dade County, by the State of Florida, by Miami-Dade County, and by the City of Miami Beach. The proposed development will also be serviced by any and all public facilities, as such are defined in Section 163.3221(12) of the Act, that are described in the Comprehensive Plan, specifically including but not limited to those facilities described in the Infrastructure Element and the Capital Improvements Element therein, a copy of which is available for public inspection in the offices of the City Clerk of the City of Miami Beach. 26 285861/9/TAMPA EXHIBIT F PUBLIC RESERVATIONS/®E®ICATIONS 1. The vacation of 87th Terrace as described in Section 6 of this Agreement. When the vacation of the 87th Terrace Property becomes effective in accordance with the terms of Resolution No. 2014-28754, and as set forth in subsection 6 (b) (iii) of the Agreement, then the 87th Terrace Property shall be included within the Property, with the area of the Property and the 87th Terrace Property to be measured for purposes of floor area ratio calculations. 2. The 87th Terrace Easement. 27 285861/9(TAMPA 1 ,4A q0 EXHIBIT G REQUIRED DEVELOPMENT PERMITS AND VARIANCES The following constitutes a generalized list of local permits anticipated as necessary to be approved by the terms of this Agreement: 1. Design Review Board, Planning Board, and/or Board of adjustment approvals, pursuant to Chapter 118 of the City of Miami Beach Code. 2. Utility Permits 3. Demolition Permits 4. Building Permits 5. Street vacations and related permits 6. Environmental Permits 7. Variances, pursuant to Chapter 118 of the City of Miami Beach Code 8. Hazardous Materials Removal Permit, if removal of hazardous materials is found necessary. 9. Coastal Construction Control Line Permit 10. Public Works Permit, Paving and Drainage 11. Public Works Permit, Water and Sewer 12. Certificates of Use and/or Occupancy 13. All other local governmental approvals as may be applicable to the subject property from time to time pursuant to the terms of this Development Agreement. 28 285861/9/TAMPA