AMENDED AND RESTATED DEVELOPMENT AGREEMENT BETWEEN CITY OF MIAMI, FLORIDA AND FLAGLER HOLDING GROUP, INC., MONTE CARLO ASSOCIATES (DEL.

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1 AMENDED AND RESTATED DEVELOPMENT AGREEMENT BETWEEN CITY OF MIAMI, FLORIDA AND FLAGLER HOLDING GROUP, INC., MONTE CARLO ASSOCIATES (DEL.) LLC, MOONLIGHT MILE ACQUISITIONS, LLC, MCCRORY DESIGN ASSOCIATES (DEL.) LLC, 39 TH STREET (DEL.) LLC, HALF-CIRCLE PROPERTY (DEL.) LLC, NORWEGIAN WOOD ACQUISITIONS, LLC, CUMBERLAND ACQUISITIONS LLC, OAK PLAZA ASSOCIATES (DEL.) LLC, DACRA DESIGN ASSOCIATES (DEL.) LLC, BEN NEWTOWN, LLC, SWEET VIRGINIA ACQUISITIONS, LLC, LOVELY RITA ACQUISITIONS, LLC, 40 DISTRICT LLC, MOSAIC (DEL.) LLC, DACRA DESIGN MOORE (DEL.) LLC, FCAA, LLC, MID-I LEE, LLC, DACRA DESIGN 4141 LLC, MDDA GARAGE, LLC, ROCKY RACCOON ACQUISITIONS (DEL.) LLC, PENNY LANE ACQUISITIONS, LLC, UPTOWN GIRL DEVELOPMENT LLC, AND TINY DANCER ACQUISITIONS, LLC REGARDING APPROVAL OF THE MIAMI DESIGN DISTRICT RETAIL STREET SPECIAL AREA PLAN AND RELATED DEVELOPMENT. THIS AGREEMENT is entered this day of, 2013, by and between, Flagler Holding Group, Inc., a Florida profit corporation, Monte Carlo Associates (Del.) LLC, Moonlight Mile Acquisitions, LLC (as successor by merger to Electra Design (Del.) LLC, Rothman Design LLC, Dacra Design Miami (Del.) LLC, and Miami Avenue (Del.) LLC, McCrory Design Associates (Del.) LLC, 39 th Street (Del.) LLC, Half-Circle Property (Del.) LLC, Norwegian Wood Acquisitions, LLC (and as successor by merger to Lady Jane Acquisitions, LLC), Cumberland Acquisitions, LLC (and as successor by merger to Hale Daniel Design, LLC), Oak Plaza Associates (Del.) LLC, Dacra Design Associates (Del.) LLC, Ben Newton, LLC, Sweet Virginia Acquisitions, LLC, 40 District, LLC, Mosaic (Del.) LLC (and as successor by merger to Palmer Design (Del.) LLC), Dacra Design Moore (Del.) LLC, FCAA, LLC (and as successor by merger to Scarlet Begonia Holdings, LLC), MID-I Lee, LLC, Dacra Design 4141 LLC, MDDA Garage, LLC, - Rocky Raccoon Acquisitions (Del.) LLC, Penny Lane Acquisitions, LLC, Uptown Girl Development, LLC, and Tiny Dancer Acquisitions, LLC, Delaware limited liability companies (each, individually, "Developer Party," and collectively, the "Developer Parties"), and the CITY OF MIAMI, FLORIDA, a municipal corporation and a political subdivision of the State of Florida ("City") (Developer and the City together referred to as the "Parties"). WITNESSETH: WHEREAS, the Miami Design District (the "District") spans portions of twelve (12) city blocks containing all the properties generally bounded on the east by Biscayne Boulevard; south by NE 36 th Street; west by North Miami Avenue; and north by NE 40 th Street or properties generally located within the area boundaries of the Miami Design District area ("SD-8") as designated under Ordinance 11000; and serviced by three (3) Miami-Dade Transit routes; and { ;2} 1

2 WHEREAS, the District has recently become an internationally recognized center for furniture design and a burgeoning home for the arts, high fashion, restaurants, and a center for creative employment; and WHEREAS, the emerging status of the District is consistent with the City's vision to develop a world class destination for the arts, fashion, and design, and, as such, the City wishes to encourage redevelopment within the District; and WHEREAS, a subset of the Developer Parties wish to redevelop some of the SAP Properties as a mixed-use, pedestrian oriented, urban retail street anchored by high-end fashion brands heretofore unavailable within the City (the "Retail Street Project"); and WHEREAS, the City and Developer Parties wish for development of the SAP Properties to proceed in a manner which is consistent with the Miami Comprehensive Neighborhood Plan ("Comprehensive Plan") and the land development regulations; and WHEREAS, the properties within the SAP Area carry Future Land Use Map designations of Duplex Residential, Medium Density Restricted Commercial, Restricted Commercial, and General Commercial in the Comprehensive Plan; and WHEREAS, the City and Developer Parties wish to amend the Future Land Use Map designations within the Comprehensive Plan for selected properties within the Retail Street Project from Duplex Residential and Medium Density Multifamily Residential to Medium Density Restricted Commercial in order to facilitate redevelopment within the District; and WHEREAS, the City, under a process outlined in the Miami 21 Zoning Code ("Miami 21") which allows parcels of more than nine (9) abutting acres to be master planned to allow greater integration of public improvements and infrastructure, and greater flexibility so as to result in higher or specialized quality building and streetscape design, previously approved the Miami Design District Retail Street Special Area Plan ("SAP") via the adoption of Ordinance and the companion Development Agreement via Ordinance on July 26 th, 2012; and WHEREAS, on February 19, 2013, the Developer Parties recorded a Development Agreement for the SAP (the "Recorded Agreement"); and WHEREAS, the Developer Parties have expanded their real ownership within the District and now hold fee simple title to approximately acres of property within the District; and WHEREAS, the Developer Parties wish to make certain modifications to the previoiusly approved SAP requiring certain companion modifications to the Recorded Agreement; and the lots which comprise the Miami Design District Retail Street Special Area Plan properties are those identified on page A1.4 and A1.5 of the Miami Design District Retail Street Special Area Plan Design Concept Book (hereinafter, the "SAP Property", "SAP Properties", or "SAP Area"), as amended (sketch and legal descriptions of which are attached as Exhibit "A"); and WHEREAS, Sec f. of Miami 21 requires development within an SAP to occur pursuant to a Development Agreement between the property owner(s) and the City; and { ;2} 2

3 WHEREAS, the City and Developer Parties wish to rezone oneof the SAP Propertiesin order to facilitate redevelopment within the SAP Area and complement the Retail Street Project; and WHEREAS, this Development Agreement ("Agreement") satisfies the requirement set forth in Sec. 3.9 of Miami 21 ; andwhereas, the City and Developer Parties wish for development within the District to proceed substantially in accordance with the Miami Design District Retail Street SAP Regulating Plan and Design Concept Book, as modified on, 2013, by the adoption of Ordinance No. XXXXX, attached as Exhibit "B" ("Regulating Plan and Design Concept Book "); and WHEREAS, the lack of certainty in the approval of development can result in a waste of economic and land resources, discourage sound capital improvement planning and financing, escalate the cost of housing and development, and discourage commitment to comprehensive planning; and WHEREAS, assurance to Developer Parties that they may proceed in accordance with existing laws and policies, subject to the conditions of a development agreement, strengthens the public planning process, encourages sound capital improvement planning and financing, assists in assuring there are adequate capital facilities for the development, encourages private participation in comprehensive planning, and reduces the economic costs of development; and WHEREAS, the City Commission pursuant to Ordinance No.XXXXX, adopted, 2013 has authorized the City Manager to execute this Agreement upon the terms and conditions as set forth below, and the Developer Parties have been duly authorized to execute this Agreement upon the terms and conditions set forth below. NOW THEREFORE, in consideration of the mutual covenants and agreements hereinafter contained, the parties mutually agree and bind themselves as set forth herein: Section 1. Consideration. The Parties hereby agree that the consideration and obligations recited and provided for under this Agreement constitute substantial benefits to both parties and thus adequate consideration for this Agreement. Section 2. Rules of Legal Construction. For all purposes of the Agreement, unless otherwise expressly provided: (a) (b) (c) (d) A defined term has the meaning assigned to it; Words in the singular include the plural, and words in plural include the singular; A pronoun in one gender includes and applies to other genders as well; The terms "hereunder", "herein", "hereof', "hereto" and such similar terms shall refer to the instant Agreement in its entirety and not to individual sections or articles; { ;2} 3

4 (e) (f) The Parties hereto agree that this Agreement shall not be more strictly construed against either the City or Developer, as all parties are drafters of this Agreement; and The recitals are true and correct and are incorporated into and made a part of this Agreement. The attached exhibits shall be deemed adopted and incorporated into the Agreement; provided however, that this Agreement shall be deemed to control in the event of a conflict between the attachments and this Agreement. Section 3. Definitions. Capitalized terms which are not specifically defined herein shall have the meaning given in Miami 21. "Agreement" means this Agreement between the City and Developer. "City" means the City of Miami, a municipal corporation and a political subdivision of the State of Florida, and all departments, agencies and instrumentalities subject to the jurisdiction thereof. "Comprehensive Plan" means the comprehensive plan known as the Miami Comprehensive Neighborhood Plan, adopted by the City pursuant to Chapter 163, Florida Statutes (2011), meeting the requirements of Section , Florida Statutes (2011), Section , Florida Statutes (2011) and Section (2), Florida Statutes (2011), which is in effect as of the Effective Date. "County" means Miami-Dade County, a political subdivision of the State of Florida. "Developer Party" means an individual property owner who is a signatory to this Agreement. "Developer Parties" means the property owners who are signatories to this Agreement. "Development" means the carrying out of any building activity, the making of any material change in the use or appearance of any structure or land, or the dividing of land into three or more parcels and such other activities described in Section (4), Florida Statutes (2011). "Effective Date" is the date of recordation of the executed, original version of this Agreement. "Existing Zoning" is (a) Miami 21 Code, April 2012, specifically including the Miami Design District Retail Street SAP Regulating Plan and Design Concept Book, and related modifications to the Transect designations of lots within the SAP Area, and (b) the provisions of the Charter and City of Miami Code of Ordinances ("Code") which regulate development, specifically including Chapters 10, 13, 22, 22.5, 23, 36, 54, 55 and 62 of the Code, as amended, through the { ;2} 4

5 - Effective Date, which together comprise the effective land development regulations governing development of the SAP Area as of the Effective Date. "Land" means the earth, water, and air, above, below, or on the surface and includes any improvements or structures customarily regarded as land. "Laws" means all ordinances, resolutions, regulations, comprehensive plans, land development regulations, and rules adopted by a local government affecting the development of land. "Public Facilities" means major capital improvements, including, but not limited to, transportation, sanitary sewer, solid waste, drainage, potable water, educational, parks and recreational, streets, parking and health systems and facilities. "Retail Developer Party" consists of the parties identified in Exhibit "C", who are signatories to the Agreement and will be undertaking the development of the Retail Street Project. "Retail Street Project" means that proposed development within the Design District SAP slated to occur on properties within the SAP area and denoted as properties 2, 3, 4, 5, 6, 7, 13, 14, 15, 16, 17, 18, 19, 20, 24, 25, 26, 27, 35, 36, 37, 38, 42, 43, 44, and 45 on sheet A1.5 of the Miami Design District Retail Street Special Area Plan Design Concept Book. Section 4. Purpose. The purpose of this Agreement is for the City to authorize Developer Parties to redevelop the SAP Properties pursuant to the Miami Design District Retail Street SAP. This Agreement will establish, as of the Effective Date, the land development regulations which will govern the development of the SAP Properties, thereby providing the Parties with additional certainty during the development process. This Agreement satisfies the requirements of Section f., Miami 21. Section 5. Intent. Developer Parties and the City intend for this Agreement to be construed and implemented so as to effectuate the purpose of the Miami Design District Retail Street SAP, this Development Agreement, the Comprehensive Plan, Existing Zoning, and the Florida Local Government Development Agreement Act, s , Florida Statutes (2011). Section 6. Applicability. This Agreement only applies to the SAP Properties identified in Exhibit "A." Section 7. Term of Agreement, Effective Date and Binding Effect. This Agreement shall have a term of thirty (30) years from the Effective Date and shall be recorded in the public records of Miami-Dade County and filed with the City Clerk. The term of this Agreement may be extended by mutual consent of the Parties subject to a public hearing, pursuant to s , Florida Statutes (2011). This Agreement shall become effective on the Effective Date and shall constitute a covenant running with the land that shall be binding upon, and inure to, the benefit of the parties, their successors, assigns, heirs, legal representatives, and personal representatives. { ;2} 5

6 Section 8. (a) (b) Permitted Development Uses and Building Intensities. Miami Design District Retail Street SAP Designation. The City has designated certain properties as the Miami Design District Retail Street SAP on the official zoning Atlas of the City, pursuant to the applicable procedures in Miami 21. The Regulating Plan and Design Concept Book are attached as Exhibit "B". In approving the Miami Design District Retail Street SAP, the City has determined that the uses, intensities and densities of development permitted thereunder are consistent with the Comprehensive Plan and the Existing Zoning. Density, Intensity, Uses and Building Heights. (1) As of the Effective Date and pursuant to the Miami Design District Retail Street SAP, the density and intensity proposed for the SAP shall be consistent with the densities and intensities permitted by the Existing Zoning. (2) The non-residential development permitted on the SAP Properties includes, but is not limited to, the following uses: office, hotel, retail, entertainment, educational, and any other uses permitted by the Existing Zoning. (3) Nothing herein shall prohibit the Developer Parties from requesting a change of zoning, pursuant to Article 7 of Miami 21, to increase the density or intensity of development permitted by the underlying Transect designation of that certain property forming part of the Miami Design District Retail Street SAP by amending the SAP and this Agreement. (4) In the event the City should amend its Comprehensive Plan to permit the transfer of densities within a specified area so as to permit densities in excess of the density limits set forth in a particular Future Land Use Map category, nothing herein shall prohibit the Developer Parties from requesting such density transfers within the Miami Design District Retail Street SAP. (c) Environmental. The City finds that the proposed development will confer a significant net improvement upon the publicly accessible tree canopy in the area. The City and Developer Parties agree that Developer Parties will comply with the intent and requirements of Chapter 17 of the City Code, subject to the modification set forth herein, by performing tree replacement within the SAP Area where possible. (1) Off-site replacement trees. Notwithstanding the requirements of Sec (e) of the City Code, where replacement within the SAP Area is not possible, Developer Party may enter into an agreement with the City to perform tree replacement on public property in the following order of priority: (i) within the District; (ii) within a one (1) mile radius of the District; or (iii) within any City park. Particular emphasis shall be paid to { ;2} 6

7 replacement along gateway corridors within and surrounding the District, specifically N. Miami Avenue, N.E. 2 nd Avenue, NE 36 th Street, NE 1 st Avenue, and Biscayne Boulevard. The City further agrees to facilitate the permitting and planting of replacement trees on all publicly owned property within the area and within City parks. Each Developer Party undertaking tree replacement off-site for any parcel of land within the SAP Area shall agree to water, trim, root, prune, brace, or undertake any other necessary maintenance as may be required by the Public Works Department for a period of not greater than thirty (30) days after installation. Each Developer Party further agrees to warrant each off-site replacement tree for a period of one (1) year after the date of installation. (2) SAP Area tree installation, maintenance and guarantee. For all trees placed within the SAP Area, each Developer Party shall install any needed irrigation and corresponding water meters to support the growth of trees located within the right-of-way. Each Developer Party undertaking tree replacement for any parcel of land shall agree to water, trim, root, prune, brace, or undertake any other necessary maintenance as may be required for trees located within the SAP Area. Each Developer Party further agrees to warrant each SAP Area tree for a period of one (1) year after installation. (3) Tree replacement chart. The tree replacement chart below shall be used to determine whether a Developer Party has satisfied the tree replacement requirements for any particular parcel of land as set forth in Sec (a) of the City Code. The chart below shall replace and supersede Chart in the City Code. Total diameter of tree(s) to be removed (sum of inches at DBH) Tree Replacement Chart 2"- 3" 2" 4"- 6" 4" 7"- 12" 8" 13"- 18" 12" 19"- 24" 16" 25"- 30" 20" 31"- 36" 24" 37"- 42" 28" 43"- 48" 32" 49"- 60" 40" Total inches of replacement DBH required (12' minimum tree height) To determine whether the replacement requirements have been satisfied, calculate the total sum in inches of the diameter of the trees removed. The { ;2} 7

8 size of the replacement trees diameter at breast height (DBH) must equal the total inches of replacement DBH set forth in the above chart. Diameter measurement shall be rounded up to the nearest inch. If the sum of the diameter of trees to be removed exceeds a total of 60 inches, the additional inches shall be added cumulatively from the top of the chart, down to the bottom of the chart, to calculate the number of DBH for replacement trees. (4) Tree species. The chart set forth below shall replace and supersede Chart in the City Code. All other requirements set forth in Sec (b) of the City Code shall apply within the SAP Area. Required total DBH for replacement trees 22"- 40" 2 41"- 100" 4 101" or greater 6 Required minimum number of species (5) Tree installation. A Developer Party shall install trees opportunistically within the public right-of-way, subject to approval by the Department of Public Works. Section 9. (a) Connectivity and Activity within Public Right-of-Way. Connectivity. A critical element to the success of the Retail Street Project is the below-grade connectivity within the public right-of-way along N.E. 41 st Street. The proposed below-grade connection will facilitate ease of access, minimize pedestrian and vehicular conflicts, and reduce the Retail Street Project's traffic impacts by enhancing internalized traffic circulation and reducing off-site impacts. The Retail Developer Party recognizes that such connectivity and commercial usage may require approval of other governmental agencies such as Miami-Dade County. The City finds and determines that establishing such connectivity below N.E. 41 st Street serves a public purpose, and further agrees to support the Retail Developer Party's efforts to obtain any authorization to establish such proposed below-grade connection. The City further finds that the authorization of such a connection below the public right-of-way shall in no way diminish access for firefighting apparatus or rescue and salvage operations; diminish traffic, transportation and circulation; or adversely impact the advancement of the safety, health, and general welfare within the City. { ;2} 8

9 Given the public benefits conferred upon the City by the below-grade connection beneath N.E. 41 st Street and across the public right-of-way, the provisions of Sec shall not apply to the Miami Design District Retail Street SAP. (b) Construction of encroachments within the Public Right-of-Way. The City finds that the encroachments proposed by the Retail Developer Party do not unduly restrict the use of the public right-of-way and are an essential element in the construction of the vehicular underpass below the same rights-of-way. The adoption of this Agreement shall serve to satisfy the requirements set forth in Sec (b) of the City Code. Notwithstanding the requirements of Sec (c) of the City Code, the City agrees to waive any and all claims to payment of a user fee in connection with the construction of the aforementioned encroachments within the public rights-of-way and the use of the same for both vehicular travel and public parking. Further, this Agreement shall satisfy the requirements of Sec (d) of the City Code. In consideration for authorizing the construction of the aforementioned encroachments, the Retail Developer Party further covenants to: (1) Maintain the below-grade vehicular underpasses in accordance with the Florida Building Code and the City Charter and Code. (2) Provide an insurance policy, in an amount determined by the city's risk manager, naming the City as an additional insured for public liability and property damage. The insurance shall remain in effect for as long as the encroachment(s) exist within the right-of-way. Should the Retail Developer Party fail to continuously provide the insurance coverage, the City shall have the right to secure similar insurance policy in its name and place a special assessment lien against the owner's abutting private property for the total cost of the premium. (3) The Retail Developer Party shall hold harmless and indemnify the City, its officials and employees from any claims for damage or loss to property and injury to persons of any nature whatsoever arising out of the use, construction, maintenance or removal of the vehicular underpass and from and against any claims which may arise out of the granting of permission for the encroachment or any activity performed under the terms of this Agreement. Section 10. Public Facilities. As of the Effective Date, the Developer Parties have conducted an extensive analysis of the Public Facilities available to serve the SAP Area and the Retail Street Project. In the event that the Existing Zoning and/or the Comprehensive Plan require a Developer Party or the Retail Developer Party to provide Public Facilities to address any deficiencies in required levels of service occasioned by future development within the SAP Area or as a result of the development of the Retail Street Project, such Developer Party or the Retail Developer Party, as appropriate, shall provide such Public Facilities consistent with the timing { ;2} 9

10 - requirements of s (2)(a), (b) and (c), Florida Statutes (2011), or as otherwise required by Chapter 13 of the City Code, if applicable. The Developer Parties shall be bound by the City impact fees and assessments in existence as of the Effective Date of this Agreement. Section 11. Project Approval. (a) Future Development Review. Future development within the Miami Design District Retail Street SAP shall proceed pursuant to the processes and in accordance with the design set forth in the Regulating Plan and Design Concept Book, attached as Exhibit "B". The criteria to be used in determining whether future development shall be approved is consistency with the Comprehensive Plan, this Agreement and the Miami Design District Retail Street SAP. (b) Prohibition on Downzoning. (1) The Comprehensive Plan, the Existing Zoning, and this Agreement and shall govern the development of the certain SAP Properties designated part of the SAP and of the Retail Street Project for the duration of the Agreement. The City's laws and policies adopted after the Effective Date may be applied to the SAP only if the determinations required by s (2), Florida Statutes (2011) have been made after 30 days written notice to the Developer and following a public hearing or as otherwise provided herein. (2) Pursuant to s (3), Florida Statutes (2011), this prohibition on downzoning supplements, rather than supplants, any rights that may vest to Developer Parties under Florida or Federal law. As a result, Developer Parties may challenge any subsequently adopted changes to land development regulations based on (a) common law principles including, but not limited to, equitable estoppel and vested rights, or (b) statutory rights which may accrue by virtue of Chapter 70, Florida Statutes (2011). Section 12. Alcoholic Beverage Sales. Upon approval of this Agreement, pursuant to Chapter 4 of the City Code, two (2) Retail Specialty Centers are hereby designated for properties within the SAP Area. The Miami Design District Retail Street SAP Retail Specialty Center North ("Retail Specialty Center North") shall consist of all SAP Properties located north of the mid-line of the right-of-way of NE 40 th Street and the Miami Design District Retail Street SAP Retail Specialty Center South ("Retail Specialty Center South") shall include properties located south of the mid-line of the right-of-way of NE 40 th Street. The maximum number of establishments selling alcoholic beverages permitted within each Retail Specialty Center shall not exceed five (5) establishments, inclusive of any such establishments in existence as of the date of this Agreement, but exclusive of any bona fide, licensed restaurants where the sale of alcoholic beverages is entirely incidental to and in conjunction with the principal use of the sale of food (e.g. bona fide, licensed restaurants, with a 2-COP, 2-COP SRX, 4-COP, 4-COP SRX or an equivalent license). The number of approved establishments may be increased by amendment to this Agreement. { ;2} 10

11 Each establishment selling alcoholic beverages permitted within the Retail Specialty Center North and the Retail Specialty Center South, exclusive of bona fide, licensed restaurants where the sale of alcoholic beverages is incidental to the principal use of the sale of food, shall be permitted pursuant to the requirements of the Miami Design District Street Regulating Plan, attached hereto as part of Exhibit "B", and any applicable provision of Chapter 4 of the City Code not in conflict with the provisions of this Agreement. Each of the alcohol beverage establishments within both the Retail Street SAP Retail Specialty Center North and Retail Specialty Center South permitted pursuant to this Section shall be reserved for the benefit of the Retail Developer Party, unless otherwise modified by a separate written agreement between the Developer Parties. Section 13. Valet Parking. The Developer Parties intend to establish a uniform valet system to service the SAP Properties and the District generally. Notwithstanding the limitations set forth in Sec , a maximum of two (2) valet permits may be issued for the operation of a valet parking ramp on the same side of the block where the permit applicant is the operator of the uniform valet system. Section 14. Temporary/Special Events. To the extent governed by the laws and regulations of the City of Miami, the City Commission hereby finds and agrees that the following special events constitute ancillary uses of the Retail Street Project: event banners, farmers' markets, grand openings, holiday sales, outdoor sales, ground breakings, and neighborhood sales events. For events which the Retail Developer Party anticipates to exceed (75%) seventy five percent of the maximum permitted occupancy, inclusive of Open and Civic Space or (2,100) two thousand one hundred guests, whichever is less, the Retail Developer Party, or its designee, shall submit an application for review to the City Neighborhood Enhancement Team (NET) office servicing the District no less than five (5) working days prior to the date of any such event. The City agrees to complete its review within three (3) working days of the submittal of the required application to ensure coordination of needed City services and avoid possible adverse impacts due to multiple events occurring within the immediate and surrounding area. The City Commission further finds that the above-listed activities, which shall not exceed the maximum permitted occupancy of the Retail Street Project, will not: (i) (ii) (iii) (iv) (v) substantially interrupt the safe and orderly movement of other traffic contiguous to the special event; substantially diminish routine police service levels to the entire community; unduly interfere with the proper fire and police protection or ambulance service to areas contiguous to the special event as a result of the concentration of persons and vehicles; interfere with the movement of firefighting apparatus en route to an emergency call; and present an unreasonable danger to the health and safety of the public. { ;2} 11

12 Notwithstanding the requirements of Secs , and , the above-stated activities shall not require the issuance of a City permit. Section 15. (a) Public Benefits. Job Creation & Employment Opportunities. Generally, the Developer Parties shall consult with local and/or state economic development entities regarding job training and job placement services for area city residents seeking employment opportunities with potential employers which will locate or establish a business within the SAP Area. (1) Construction Employment. The Developer Parties shall use best efforts to work with the City in the following areas: a. Job Sourcing. The Developer Parties shall require their general contractor(s) to use best efforts to work with the City s Miami Works Initiative to source job opportunities for both skilled and unskilled laborers seeking employment opportunities within the construction industry. b. Community Business Enterprise (CBE) Participation. The Developer Parties shall require their general contractor(s) to use best efforts to assign a minimum of twenty percent (20%) of the construction contract value to subcontractors whose firms are certified by Miami-Dade County as CBEs. c. Local Workforce Participation. The Developer Parties shall require their general contractor(s) to use best efforts to employ a minimum of twenty percent (20%) of on-site labor from persons residing within the municipal boundaries of the City of Miami. (2) Restaurant and Retail Employment. The Developer Parties anticipate that a significant number of employment opportunities in the culinary and retail sectors will be generated within the SAP Area. Developer Parties shall use best efforts to work with Miami Dade College, through its culinary and retail institutes, or with similar institutions or organizations, in consultation with the City, to place qualified graduates of such programs in employment opportunities within the SAP Area. (3) Hospitality Employment. The Developer Parties anticipate that a number of job opportunities in the hospitality sector will be generated within he SAP Area. The Developer Parties shall use best efforts to work with { ;2} 12

13 Miami Dade College, through its hospitality institute, or with similar institutions and organizations, in consultation with the City, to place qualified graduates of the hospitality institute in employment opportunities within the SAP Area. In addition, the Developer Parties shall use best efforts to assist the City in identifying employment opportunities within the hospitality sector outside the SAP Area and place qualified graduates of the hospitality institute in positions. (b) Park/Open Space Enhancements. As consideration for certain reductions to standards set forth in the City's land development regulations, the Developer Parties hereby agree to undertake the following improvements: (1) Woodson Mini-Park: The City owns and operates an existing mini-park, located at approximately 699 NE 36 th Street (Folio No ), consisting of a parcel of land approximately 6,811 sq. ft. in size and any improvements thereon. In consultation with City Planning staff and subject to their approval, and that of any other City department, the Developer Parties hereby agree to design and construct the proposed improvements (e.g. enhanced landscaping, lighting, fencing, and similar improvements), etc., to the park at their sole cost and expense within three (3) years of the Effective Date of this Agreement. (2) Park/Open Space Acquisition: The Developer Parties shall use best efforts to acquire a parcel of land of not less than 3,500 sq. ft. in size for park/open space within the SAP Area, the District, or within the immediate vicinity of the District to offset a deficiency of (20,114 sq. ft.) twenty thousand square feet of required Open Space. Said parcel of land shall be dedicated to the City as a public park/open space and improved by the Developer Parties, which improvements shall be consistent with the design treatment approved by the City for Woodson Mini-Park and incorporate similar elements (e.g. enhanced landscaping, lighting, fencing, and similar improvements), etc. The Developer Parties shall complete such acquisition and improvements within three (3) years of the Effective Date of this Agreement. If such acquisition is not timely completed within period set forth above, the Developer Parties shall be required to make a contribution to the City's Public Parks and Open Space Trust Fund in an amount equal to the required cash contribution contemplated under Sec b.3. of Miami 21 for not less than (20,114 sq. ft.) twenty thousand one hundred fourteen square feet of Open Space. The amount of said contribution shall be apportioned between each Developer Party in accordance with method set forth in subparagraph (3) below. (3) Apportionment of the Cost of Enhancement & Acquisition. The improvements and park acquisition referred to in (1) and (2) above are { ;2} 13

14 called the "Park/Enhancement/Acquisition." The cost of the Park Enhancement/Acquisition shall be borne by the Developer Parties. Unless and to the extent that the Developer Parties otherwise agree by instrument signed by the Developer Parties and recorded in the Public Records of Miami-Dade County, Florida: (a) the Park Enhancement/Acquisition shall be initiated by the Retail Developer; (b) each Developer Party shall pay to the Retail Developer its share of such cost of the Park Enhancement/Acquisition as costs are incurred; (c) Retail Developer shall from time to time have the right to issue (and record at Retail Developer's option), certificates indicating the status of any sums due to it for the Park Enhancement/Acquisition. Any such sums not paid to the Retail Developer within ten (10) days after such payment is due shall bear interest at the rate of 18% per annum (but not more than the highest rate permitted by law) and shall constitute a lien on the property within the SAP that is owned by such Developer Party from whom such payment is due. (c) Street Right-of-Way Improvements. In order to foster a uniform aesthetic, the Developer Parties or Retail Developer Party, where appropriate, agree that any right-of-way improvements to the northern half of NE 38 th Street, all of NE 39 th Street, and the southern half of NE 42 nd Street between NE 1 st and 2 nd Avenues, as well as right-of-way improvements to NE 1 st and 2 nd Avenues between NE 38 th and 42 nd Streets, shall include the entire length of the block, even when SAP Properties only make-up a portion of the block. The Retail Developer Party shall, at a minimum, improve the right-of-way immediately fronting SAP Properties along NE 40 th and 41 st Streets. Developer Parties and Retail Developer Party agree to construct and maintain, at their sole cost and expense, any non-standard improvements to the rights-of-way as described above. The Developer Parties further agree to support the City's best efforts to effectuate the construction of improvements within portions of the right-of-way fronting non-sap Properties and which will serve to create a uniform or complementary design aesthetic within the SAP Area, whether through the adoption of design guidelines requiring right-of-way enhancements which complement the nonstandard improvements proposed by the Developer Parties, solicitation of an appropriation from another governmental body to construct such improvements, or other appropriate action. In the event the City's best efforts fail to procure either funding for or construction of the desired right-of-way improvements within three (3) years of the Effective Date of this Agreement, the Retail Developer Party further agrees to design and construct the improvements within the portions of right-of-way fronting on non-sap Properties along NE 40 th and 41 st Streets. (d) NE 42 nd Street Landscaping Enhancements. As evidenced by the letter of support dated November of 2011 from the Buena Vista East Historic Neighborhood Association ("Association"), attached hereto as part of Exhibit "E". the Retail Developer party shall work collaboratively with the Association on the { ;2} 14

15 final design treatment for the north wall of the building slated for development on north block within the SAP Area, the preliminary design treatment for which is illustrated on pages A3.4 and A3.5 of the Design Concept Book, attached hereto as part of Exhibit "B". The Retail Developer Party shall present the final design treatment to the Planning Director for review and approval, following consultation with the Association, which review shall be evaluated for consistency with the standards set forth in Art. 4, Table 12. Section 16. (a) Local Development Permits. The development of the SAP Property in accordance with the Existing Zoning is contemplated by Developer Parties. Redevelopment of the SAP Property may require additional permits or approvals from the City, County, State, or Federal government and any division thereof. Subject to required legal process and approvals, the City shall make a good faith effort to take all reasonable steps to cooperate with and facilitate all such approvals. Such approvals include, without limitation, the following approvals and permits and any successor or analogous approvals and permits: (1) Subdivision plat and/or waiver of plat approvals; (2) Covenant or Unity of Title acceptance or the release of existing unities or covenants; (3) Building permits; (4) Certificates of use and/or occupancy; (5) Stormwater Permits; (6) Development of Regional Impact approval, modification or exemption; and (7) Any other official action of the City, County, or any other government agency having the effect of permitting development of the SAP Property. (b) Section 17. Permits. In the event that the City substantially modifies its land development regulations regarding site plan approval procedures, authority to approve any site plan for a project on the SAP Properties shall be vested solely in the City Manager, with the recommendation of the Planning Director. Any such site plan shall be approved if it meets the requirements and criteria of the Existing Zoning, the Comprehensive Plan and the terms of this Agreement. Necessity of Complying with Local Regulations Relative to Development The Developer Parties and the City agree that the failure of this Agreement to address a particular permit, condition, fee, term, license, or restriction in effect on the Effective Date shall { ;2} 15

16 not relieve the Developer Parties of the necessity of complying with the regulation governing said permitting requirements, conditions, fees, terms, licenses, or restrictions. Section 18. (a) (b) (c) Section 19. (a) (b) (c) Reservation of Development Rights. For the term of this Agreement, the City hereby agrees that it shall permit the development of the SAP Property in accordance with the Existing Zoning, the Comprehensive Plan and the Agreement. Nothing herein shall prohibit an increase in the density or intensity of development permitted in the SAP Area in a manner consistent with (a) the Existing Zoning and/or the Comprehensive Plan, (b) any zoning change subsequently requested or initiated by a Developer Party in accordance with applicable provisions of law or (c) any zoning change subsequently enacted by the City. The expiration or termination of this Agreement shall not be considered a waiver of, or limitation upon, the rights, including, but not limited to, any claims of vested rights or equitable estoppel, obtained or held by Developer Parties or its successors or assigns to continue development of the SAP Property in conformity with Existing Zoning and all active prior and subsequent development permits or development orders granted by the City. Annual Review. The City shall review the development that is subject to this Agreement once every twelve (12) months, commencing twelve (12) months after the Effective Date, through the expiration or termination of this Agreement, or approved development right listed on pg. A1-9 of the Design Concept Book, whichever occurs first. The City shall begin the review process by giving notice to Developer Parties, a minimum of thirty (30) days prior to the anniversary date of the Agreement, of its intention to undertake the annual review of this Agreement. Copies of such annual review shall be provided to the Developer Parties. Any information required of a Developer Party during an annual review shall be limited to that information necessary to determine the extent to which the Developer Party is proceeding in good faith to comply with the terms of this Agreement. If the City finds, on the basis of competent substantial evidence, that a Developer Party has not proceeded in good faith to comply with the terms of the Agreement, the City may take action to terminate or amend this Agreement with respect to said Developer Party. The City shall provide said Developer Party with written notice of its intent to terminate or amend the Agreement. Said notice shall state the reasons for the termination or amendment. Upon receipt of such notice, the Developer Party shall have thirty (30) days to cure the default, or such longer { ;2} 16

17 period of time as may reasonably be required to cure the default if the default by its nature cannot be cured within thirty (30) days; provided, however, that the Developer Party commences certain acts within thirty (30) days and diligently pursues the cure thereafter. Should the Developer Party fail to cure within the aforementioned period, the City may terminate or amend this Agreement as to that Developer Party in accordance with the requirements of Section 36. Section 20. (a) Notices. All notices, demands and requests which may or are required to be given hereunder shall, except as otherwise expressly provided, be in writing and delivered by personal service or sent by United States Registered or Certified Mail, return receipt requested, postage prepaid, or by overnight express delivery, such as Federal Express, to the parties at the addresses listed below. Any notice given pursuant to this Agreement shall be deemed given when received. Any actions required to be taken hereunder which fall on Saturday, Sunday, or United States legal holidays shall be deemed to be performed timely when taken on the succeeding day thereafter which shall not be a Saturday, Sunday or legal holiday. To the City: With a copy to: City Manager City of Miami 3500 Pan American Drive Miami, FL City Attorney City of Miami Miami Riverside Center 444 S.W. 2nd Ave., 9th Floor Miami, FL Planning & Zoning Director City of Miami Miami Riverside Center 444 S.W. 2 nd Avenue, 3 rd Floor Miami, FL To Developer Parties: 39 th St. (Del.) LLC 40 District LLC Ben Newton LLC Cumberland Acquisitions, LLC Dacra Design 4141 LLC Dacra Design Associates (Del.) LLC Dacra Design Moore (Del.) LLC FCAA, LLC { ;2} 17

18 Half Circle Property (Del.) LLC Lovely Rita Acquisitions, LLC McCrory Design Associates (Del.) LLC McCrory Design Buick (Del.) LLC MID-I Lee, LLC Moonlight Mile Acquisitions, LLC Monte Carlo Associates (Del.) LLC Mosaic (Del.) LLC Norwegian Wood Acquisitions, LLC Oak Plaza Associates (Del.) LLC Sweet Virginia Acquisitions LLC Penny Lane Acquistions, LLC Uptown Girl Development LLC Tiny Dancer Acquisitions LLC Attn:: Craig Robins 3841 NE 2 nd Avenue, Ste. 400 Miami, FL Flagler Holding Group, Inc. Attn: John Petersen 4218 NE 2 nd Avenue, 2 nd Floor Miami, FL With copies to: Akerman Senterfitt Attn: Neisen O. Kasdin, Esq. 1 SE 3 rd Avenue, 25 th Floor Miami, FL (b) (c) Any Party to this Agreement may change its notification address(es) by providing written notification to the remaining parties pursuant to the terms and conditions of this section. Upon the occurrence of any event of default by any Developer Party, as described in Section 28, or a determination by the City that a Developer Party has not proceeded in good faith to comply with the terms of this Agreement, as described in Section 19, the City shall provide written, courtesy notice of said default to each non-defaulting Developer Party. Said notice shall identify the name of the defaulting party, the address of the subject property(ies), and specify the default. Section 21. Exclusive Venue, Choice of Law, Specific Performance. It is mutually understood and agreed by the parties hereto, that this Agreement shall be governed by the laws of the State of Florida, and any applicable federal law, both as to interpretation and performance, and that any action at law, suit in equity or judicial proceedings for the enforcement of this Agreement or any provision hereof shall be instituted only in the courts of the State of Florida or federal courts and venue for any such actions shall lie exclusively in a court of competent { ;2} 18

19 jurisdiction in the County. In addition to any other legal rights, the City and Developer Parties shall each have the right to specific performance of this Agreement in court. Each party shall bear its own attorney's fees. Each party waives any defense, whether asserted by motion or pleading, that the aforementioned courts are an improper or inconvenient venue. Moreover, the parties consent to the personal jurisdiction of the aforementioned courts and irrevocably waive any objections to said jurisdiction. The parties irrevocably waive any rights to a jury trial. Section 22. Voluntary Compliance. Developer Parties and the City agree that in the event all or any part of this Agreement is struck down by judicial proceeding or preempted by legislative action, Developer Parties and the City shall continue to honor the terms and conditions of this Agreement to the extent allowed by law. Section 23. No Oral Change or Termination. This Agreement and the exhibits and appendices appended hereto and incorporated herein by reference, if any, constitute the entire Agreement between the parties with respect to the subject matter hereof. This Agreement supersedes any prior agreements or understandings between the parties with respect to the subject matter hereof, and no change, modification or discharge hereof in whole or in part shall be effective unless such change, modification or discharge is in writing and signed by the party against whom enforcement of the change, modification or discharge is sought. This Agreement cannot be changed or terminated orally. Section 24. Compliance with Applicable Law. Subject to the terms and conditions of this Agreement, throughout the Term of this Agreement, Developer Parties and City shall comply with all applicable federal, state or local laws, rules, regulations, codes, ordinances, resolutions, administrative orders, permits, policies and procedures and orders that govern or relate to the respective Parties' obligations and performance under this Agreement, all as they may be amended from time to time. Section 25. Representations; Representatives. Each party represents to the others that this Agreement has been duly authorized, delivered and executed by such party and constitutes the legal, valid and binding obligation of such party, enforceable in accordance with its terms. Section 26. No Exclusive Remedies. No remedy or election given by any provision in this Agreement shall be deemed exclusive unless expressly so indicated. Wherever possible, the remedies granted hereunder upon a default of the other party shall be cumulative and in addition to all other remedies at law or equity arising from such event of default, except where otherwise expressly provided. Section 27. Failure to Exercise Rights not a Waiver: Waiver Provisions. The failure by any party to promptly exercise any right arising hereunder shall not constitute a waiver of such right unless otherwise expressly provided herein. No waiver or breach of any provision of this Agreement shall constitute a waiver of any subsequent breach of the same or any other provision hereof, and no waiver shall be effective unless made in writing. Section 28. Events of Default. { ;2} 19