This instrument Prepared by and

after Recording Return To:

Daniel M. Mackler, Esq.

Gunster, Yoakley & Stewart, PA
600 Brickell Avenue
Brickell World Plaza, Suite 3500
Miami, Florida 33131

DEVELOPMENT AGREEMENT
REGARDING CONSTRUCTION OF THE NEW FIRE STATfON NO.4

THIS DEVELOPMENT AGREEMENT is entered this _ _ dayof ,2017,

and effective as of the _ day of ,20 17, by and between SOUTHSIDE PLACE,
LLC, a Florida limited liability company (" Developer"), and the CITY OF MIAMI , FLORIDA, a
municipal corporation and a political subdivis ion of the State of Florida ("City") (Developer and
the City together referred to as the "Parties").

R E C IT A L S:

WHEREAS, the City owns the City Property, which is currently valued at approximately
$ 13 ,382,500.00 (based on an average of two appraisa ls), and currently contains an operating fIre
station; and

WHEREAS, the Developer owns the abutting Developer Property, which is currently
va lued at approximately $4,477,500.00 (based on an average of two appraisa ls) and current ly
contains a multi-family apartment building; and

WHEREAS , the Developer has offered to consolidate the Developer Property with the
City Property, for no compensation, in order to create two (2) separate parcels - one of which
would be an air rights parcel owned by Developer, and the other which would be a fee parcel
owned by the City; and

WHEREAS, the Developer has offered to construct a new, state of the art, larger and
modern Fire Station for the City on the Developer Prope11y and part of the City Prope11y at a cost
0[$8,000,000 at Developer's expense; and

WHEREAS , the Developer has offered to contribute Five Hundred Thousand Dollars
($500,000.00) as an addition Public BenefIts Contribution; and

WHEREAS, the Developer has offered to convey the Public Parking Spaces (as defIned
below, i.e. , all the parking spaces on the fIrst parking level of the Parking Garage consisting of
approximately fIfty (50) parking spaces va lued at $1,500,000) to the City's Department of Off-
Street Parking.
 WHEREAS, in addition to the new Fire Station, Developer also intends to develop a
mixed-use tower with first (1 ") floor retail and a parking garage; and

WHEREAS, the Developer Property is currently zoned Urban Core Transect (T6-24A-O)
and is designated Restricted Conunercial, in the Miami Comprehensive Neighborhood Plan;

WHEREAS, the City Property is zoned Civic Institution and is designated Major
Institutional, Public Facilities, TranspOltation and Utilities in the Comprehensive Plan; and

WHEREAS, in furtherance of Developer's construction of the Project, Developer, at its

sole cost and expense, has agreed to provide certain Public Benefits, including: (1) the construction
of the Fire Station on behalf and for the benefit of the City; (2) the conveyance of the Developer
Property to the City; (3) cash contribution to the City of Five Hundred Thousand Dollars
($500,000.00) to be payable upon issuance ofa fmal Certificate of Occupancy for the Fire Station;
(4) the conveyance of the Public Parking Spaces to the City'S Department of Off-Street Parking;
(5) the Profit Participation Payment payable pursuant to Section 38 below and Exhibit H, and (6)
other Public Benefits; and

WHEREAS, in furtherance of the Developer's conveyance of the Developer Property to

the City, construction of the new Fire Station and a public/private Parking Garage, in addition to
the other Public Benefits, the City has agreed to the creation of the Fee Parcel and the Air Rights
Parcel, as defined in Section 3 below; 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 platming and financing,
escalate the cost of housing and development, and discourage commitment to comprehensive
planning; and

WHEREAS, assurance to a developer that it may proceed in accordance with existing laws
and policies, subject to the conditions ofa development agreement, strengthens the public planning
process, encourages sound capital improvement planning and fmancing, assists in assuring there
are adequate capital facilities for the Project, encourages private participation in comprehensive
planning, and reduces the economic costs of development; and

WHEREAS, the City Commission, pursuant to Resolution No. adopted

on , ~~, has authorized the City Manager to execute this Agreement
upon the terms and conditions as set forth below and to further take all actions required to
effectuate the intent of this Agreement; and

WHEREAS, the Developer is authorized to execute this Agreement upon the terms and
conditions set forth below; and

WHEREAS, the Developer has agreed to provide the Public Benefits within the Project
and the City has agreed to the creation of the Parcels, subject to the terms and conditions set forth
in this Agreement;

NOW THEREFORE, in consideration of the mutual covenants and agreements

hereinafter contained, the Patties mutually agree and bind themselves as set forth herein:

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 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 this Agreement, unless otherwise expressly provided:

(a) A defined term has the meaning assigned to it;

(b) Words in the singular include the plural, and words in the plural include
the singular;

(c) A pronoun in one gender includes and applies to other genders as well;

(d) The terms "hereunder", "herein", "hereof', "hereto", and such similar
terms shall refer to the instant Agreement in its entirety and not to
individual sections or articles;

(e) The Parties hereto agree that this Agreement shall not be more strictly
construed against either the City or Developer, as all Parties are drafters
of this Agreement; and

(f) 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 this Agreement. This Agreement and the attached
exhibits shall be interpreted to avoid conflicts; provided, however, that
this Agreement shall be deemed to control in the event of an express
conflict between the exhibits 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 Development Agreement between the City and

Developer regarding construction of the Project.

"Air Rights Parcel" means the parcel created by the City and owned by the
Developer, consisting of the Ground Floor Retail, Parking Garage and
Mixed-Use Tower, as further identified in Exhibit B.

"Approvals" means the final development approvals and building permits

required for the construction of the Project. The Approvals shall include,
without limitation: (i) a change of Future Land Use Map and Zoning Map
designation for the City Property from "Major Public Facility" and "cr" to
"Restricted Commercial" and "T6-24A-O"; (ii) approval of any documents
required for the specific purpose of creating the Parcels; (iii) approval of a
site plan for the Project, including the approval of any Waivers which may

3
be required and (iv) approval of any other docwnents or resolutions that
may be required for the construction of the Project.

"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

"City Property" means the parcel of property, conslstmg of folios #

0141380510420, 0141380510390, 0141380510410, and 0141380510400
described on Exhibit C attached hereto, as to which the City has obtained
the following appraisals: (a) Appraisal dated April 20, 2017, from Joseph 1.
Blake & Associates, Inc. , containing a valuation of $14,800,000, which is
attached as Exhibit D and (b) Appraisal dated April 29, 2017, l1-OIn Armada
Appraisal & Consulting Company containing a valuation of $11 ,965 ,000,
which is attached as Exhibit E.

"Closing" means the simultaneous occurrence of the following: (a) the

Developer's conveyance of the Developer Property to the City; (b) the
consummation by the Parties of the creation of the Parcels; and (c) the
Parties shall execute and deliver all of the Closing Documents.

"Collective Ownersbip Structure" means the Developer' s right to convert

and submit the overall Project or portions thereof, including the Fire Station,
to a condominium form of ownership or another collective ownership
structure.

"Comprehensive Plan" means the comprehensive plan known as the

Miami Comprehensive Neighborhood Plan, adopted by the City pursuant to
Chapter 163, Florida Statutes (2016), meeting the requirements of Section
163.3177, Florida Statutes (2016), Section 163.3178, Florida Statutes
(2016) , and Section 163.3221 (2), Florida Statutes (2016), which is in effect
as of the Effective Date.

"Construction" means the building of the various components of the

Project, and shall include any clearing or other similar site preparation work
on the Parcels.

"County" means Miami-Dade County, a political subdivision of the State

of Florida.

"Developer" means the person or entities undertaking the development of

the Project, defined in the preamble to this Agreement as SOUTHSIDE
PLACE, LLC, a Florida limited liability company, its successors and
assigns.

"Developer Conveyance" means the Developer' s conveyance of the

Developer Property to the City.

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"Developer Property" means the parcel of propeliy, folio #
0141380510430, described on Exhibit F attached.

"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 and/or air rights into two (2) or more parcels and such
other activities described in Section 163.3221 (4), Florida Statutes (2016).

"Effective Date" means , the date the City

Manager executed this Agreement with approval fi'om the City
Commission.

"Fee Parcel" means the parcel created and owned by the City, consisting
of the new Fire Station, as further identified in Exhibit B.

"Fire Department" means the City of Miami Fire Department.

"Fire Station" means a turn-key, approximately 31 ,078 square foot, state

of the ali fire station, with an additional $100,000 allowance for furniture,
fixtures and equipment (e.g. , kitchen equipment, but will exclude fire-
fighting equipment) within the Project, for the exclusive use of the Fire
Department that will be constructed on the Fee Parcel.

" Fire Station Improvements" means the construction of the new Fire
Station No. 4 consisting of approximately 31,078 square feet of gross
building area for a Fire-Rescue facility as part of the Project to be developed
for the exclusive use and ownership of the City of Miami Fire Department.

"Impact Fees" means a fee imposed by any local government or agency

based upon the new development 's proportionate share of the average cost
of new development including impact fees imposed by Miami-Dade
County, the City of Miami, and the Miami-Dade County Public Schools
System.

"Impact Fee Credit" shall mean the credit applied by the City to satisfY
any and all: (I) Fire Rescue Impact Fees for the Project, as set forth in
Section 13-10 of the City Code of Ordinances; and (2) Impact fees
generated by the development of the Fire Station Improvements on the Fee
Parcel, as set forth in Sections 13-9 through 13-12 of the City Code of
Ordinances.

"Land" means the earth, water, and air above, below, or on the surface and
includes any improvements or structures customarily regarded as land.

"Laws" mean all applicable ordinances, resolutions, regulations,

comprehensive plans, land development regulations, and rules adopted by a
local, state, or federal government affecting the development of the Project.

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 "Parcels" mean both the Air Rights Parcel and Fee Parcel, as further
identified in Exhibit B,

"Parking Garage" means the new parking garage, contammg

approximately 255 parking spaces, to be constructed by the Developer as
part of the Project.

"Profit Participation Payments" is defmed in Exhibit H.

"Project" means the proposed mixed-use development conslstll1g of

approximately 21 stories and up to 196 residential units containing the
Parking Garage, approximately 5,346 square feet of retail use on the first
(1 s~ floor located on the Air Rights Parcel, and the Fire Station, that
Developer contemplates to construct upon the Fee Parcel.

"Public Benefits" shall be those described in Exhibit A.

"Public Facilities" means major capital Improvements to the benefit of the

public, including, but not limited to, transportation, sanitary sewer, solid
waste, drainage, potable water, educational, parks and recreational, streets,
parking, and health systems and facilities.

"Public Parking Spaces" means all the parking spaces on the first parking
level of the Parking Garage consisting of approximately fifty (50) parking
spaces to be conveyed to the City's Department of Off-Street Parking.

Section 4. Purpose. The purpose of this Agreement is for the City to authorize
Developer to develop the Project pursuant to the site plan dated --=____ and prepared by
Revuelta Architecture International and attached hereto as Exhibit G.

Section 5. Intent. Developer and the City intend for this Agreement to be construed
and implemented so as to effectuate the Development of the Parcels pursuant to the site plan, this
Agreement, the Comprehensive Plan and the Florida Local Government Development Agreement
Act, Section 163.3220 - 163.3243, Florida Statutes (20\6). Specifically, the Parties, based on
substantial benefits to each, intend for the City to gain ownership of the Developer Propel1y,
receive a new state-of-the-art Fire Station and receive other Public Benefits as further described
herein. In exchange, the City will assist in effectuating the Approvals as defined herein, allowing
the Developer to construct the Project.

Section 6. Applicability. This Agreement and any rights and obligations contained
herein applies only to the Project.

Section 7. Term of Agreement, Effective Date, and Binding Effect. This

Agreement shall have a term of five (5) years with the right of Developer to request an extension
of the term for an additional five (5) years by providing written notice to the City Manager prior
to the expiration of the initial term, which shall be granted in the City Manager's reasonable
discretion. Thereafter, the City Manager may extend the term at the City Manager's sole discretion,

6
but in no event shall such extension exceed thirty (30) years from the Effective Date, unless such
extension has been approved subject to a public hearing, pursuant to Section 163.3225 , Florida
Statutes (2010). 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. Additionally,
this Agreement shall be recorded in the public records of Miami-Dade County and filed with the
City Clerk. If Developer has not commenced construction during the initial term of this
Agreement, as may be extended hereunder, the City may seek alternative development plans for
the City Property, which do not include Developer or the Project.

Section 8. Filing of Applications for Approvals. The Developer hereby agrees to file
the necessary applications for the Approvals, and the City will assist with such Approvals where
possible and, as applicable, execute or otherwise join into such applications, within thirty (30) days
of the execution of this Agreement. The Parties agree that any modifications required to the Project
and/or the Approvals required in order to permit the development of the Project will be reviewed
pursuant to the land development regulations in effect at that time.

Section 9. Fire Station Construction. The City and Developer agree that the
Developer will construct the Fire Station as part of the Project and deliver said Fire Station to the
City upon the issuance ofa final Certificate of Occupancy. The City shall retain ownership of the
Fire Station at all times. Subject to the foregoing , the Parties agree that the Fire Station will be
completed in substantial compliance with all of the following:

(a) Fire Station Development Plan. The Fire Station shall be constructed in
substantial conformance with the conceptual development plans attached
as Exhibit G, or as otherwise mutually agreed to by the Parties. The final
development plans for the Fire Station shall be subject to the City 's prior
review and approval.

(b) Proposed Plan Changes to the Fire Station Development Plan. Any
material changes, modifications, amendments or substitutions to: (a)
increase the gross floor area of the Fire Station beyond 31 ,078 sq. ft.; or
, or (b) which substantially modify the development plans for the Fire
Station, provided in Exhibit G , shall be accomplished via a change order
approved in writing by the City Manager and the Developer (collectively,
the "Proposed Plan Change"). Design changes required for compliance
with the Approvals and Florida Building Code standards shall not
constitute Proposed Plan Changes. The Parties shall review and approve
any and all Proposed Plan Change(s) to determine the effect of the
Proposed Plan Change upon the Fire Station, including the construction
budget and construction schedule. The City shall be solely responsible
for payment to the Developer of any increases to the costs of construction
for the Fire Station that result fi'om any Proposed Plan Changes expressly
requested by the City after the design development plans have been
reviewed and approved by the Parties. The amount due by the City in
connection with any Proposed Plan Changes shall not exceed the total
actual costs charged to the Developer by the general contractor;

7
 notwithstanding the above, the general contractor shall not be permitted
to charge greater than market value for such Proposed Plan Changes.

(c) Commencement of Construction. Upon: (a) the issuance of the

Approvals, to the extent deemed reasonably necessary by the Developer;
(b) the Developer's reasonable satisfaction that the condition of the Cit y
Property and title thereto are sufficient for the development of the
Project; and (c) the Parties' agreement to the form and substance of the
Closing Documents, the Developer shall promptly proceed with the
construction of the Fire Station and shall use its reasonable efforts to
complete construction of the Fire Station within thirty-six (36) months,
as more particularly defined in Section 16. A Temporary Certificate of
Occupancy ('TCO") for the mixed-use tower and Parking Garage shall
not be issued prior to (I) the issuance of the TCO for the Fire Station and,
(2) the completion and transfer by the Developer, as applicable, of the
other Public Benefits. Construction shall comply with all applicable
Building, Zoning, City and Cowlty codes, and other applicable laws,
rules and regulations required to be complied with as part of the process
of building permit issuance. Upon commencement of construction of the
Fire Station, the City shall no longer have access to the current parking
area for the existing fire station.

(d) Alternate Parking. During construction, the Developer shall provide

alternate parking spaces for Fire Department employees of the existing
fire station within 1,000 feet of the Parcels. The Developer shall have
the right to terminate this alternate parking area once both the TCO for
the Fire Station is issued and the Fire Station Parking is available.

(e) Costs. The Developer shall construct the Fire Station at its sole cost and
expense, up to and not to exceed $8,000,000, subject to Section 9(b)
above. Notwithstanding any language in this Agreement to the contrary,
any costs or expenses incurred to construct the Fire Station, which are
not a result of the City's request, delay, or Proposed Plan Changes, shall
be paid for by the Developer.

(1) Floor Area Limitation. The Fire Station's building Floor Area shall not
exceed 31,078 gross square feet, inclusive of mechanical and common
areas.

(g) Design and Review Process. All plans and applications related to the Fire
Station are subject to review and approval by the City for compliance
with this Agreement and all other applicable laws, regulations and
ordinances.

(h) Fire Station Permitting Fees. The City shall be solely responsible for
payment of any and all municipal or governmental fees fiom any
jurisdiction having authority, including but not limited to City, County,

8
 State and Federal related to any permits, certifications, development
orders, inspections and approvals required for the development of the
Fire Station, including but not limited to fees for building permits, public
works approvals, zoning approvals, Certificate of Use, Certificates of
Occupancy, Department of Enviromnental Resource Management
approvals and Miami-Dade County Water and Sewer Department
approvals and agreements to provide water and sewer service. The City
shall also be responsible for all other permitting, municipal or
governmental fees related to construction of the interior finishes and
interior build-out, and occupancy of the Fire Station.

(i) Water and Sewer Connection Charges and Utilities. The Developer at its
sole cost and expense shall (a) pay all water and sewer cormection
charges and (b) provide and construct all water and sewer infrastructure
required to support the Project and the Fire Station.

(j) Cooperation; Expedited Permitting; and Time is of the Essence.

(i) The Parties agree to cooperate with each other to the hrll extent
practicable pursuant to the terms and conditions of this Agreement.
The Parties agree that time is of the essence in all aspects of their
respective and mutual responsibilities pursuant to this Agreement.
The City shall use its best efforts to expedite the permitting and
approval process for the Project in an effort to assist the Developer
in obtaining the Approvals and achieving its development and
construction milestones, including, without limitation, substantial
completion of the Fire Station.

(ii) Notwithstanding the foregoing , the City shall not be obligated to

issue any permit to the extent the Developer does not comply with
the applicable requirements of the Approvals, the Comprehensive
Plan, this Agreement, applicable building codes, and any other
statute, ordinance, rule, or regulation.

(iii) The Developer shall have the right to enter upon and inspect the City
Property and otherwise conduct such tests and investigations as the
Developer deems necessary in connection with the development of
the City Property. The foregoing shall include, without limitation,
water and soil sampling and other environmental inspections,
obtaining surveys and geotechnical testing.

(iv) The City shall grant to the Developer a general access easement to
enter upon the City Property in order to construct the Fire Station.

(v) The Developer shall have the right to review and inspect title to the
City Property in order to determine its status.

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 (k) Indemnity; Insurance. The Developer sha ll, at its own cost and expense,
indemnify, hold harmless, and defend the City, its officials and
employees from all actions, claims, losses, liabilities, suits, costs,
damages or fees arising out of its construction of the Fire Station
including without limitation personal injury, property lo ss or damage,
contract, construction, actions for design defects, labor, materials,
supplies, and/or statutory act ions through administrative, trial and
appellate stages. The Developer shall maintain adequate coverage in
terms of general liability and excess umbrella, affording coverage on a
primary and non-contributory basis, insuring against all applicable
exposures arising out of a bodily injury, death, or property damage
claims resulting from, or in cOlmection with this agreement. Such
policies shall be endorsed to list the City as an additional insured. The
Developer shall further require any and all contractors to maintain
adequate coverage during the construction phase of the Project.

Section 10. Fire Station Operation. The Parties hereby agree upon the following with
respect to the operation of the Fire Station:

(a) Environmental Remediation and Indemnification. The City agrees to

indemnify and hold harmless the Developer from and against any and all
loss, cost, expense or other liability incurred by the Developer (including,
without limitation, all reasonable attorneys ' and paralegals' fees incurred
thereby, whether or not litigation is commenced and, if commenced,
through all appellate proceedings) as a result of the presence of any
hazardous materials or waste (all as defined under applicable local, state
or federal laws, rules and regulations) on the City Property. Specifically,
City, not Developer, shall be responsible for any damages, expenses,
costs, etc. associated with the fuel tanks currently on City Property or
any remediation required by damage or release of hazardous materials
therefi'om the fuel tanks may have caused.

(b) Occupancy. Upon receipt of TCO for the Fire Station, the Fire
Depmiment will be permitted to take possession of the Fire Station.

(c) Nuisance. As detailed in Section 316.271 , Florida Statutes, Fire

Department service vehicles' sirens, whistles or bells "shall not be used
except when the vehicle is operated in response to an emergency call, in
which event the driver of the vehicle shall sound the siren, whistle, or
bell when reasonably necessary to warn pedestrians and other drivers of
the approach thereof" If the Fire Department service vehicles are not
responding to an emergency call or warning pedestrians or other drivers,
then the use of sirens will be prohibited in order to avoid any disturbance
and nuisance to residents and neighbors. The Fire Department shall adopt
and enforce policies that minimize the noise caused by, or at the Fire
Station.

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 (d) Utilities and Operating Expenses. The City shall be responsible for
payment of expenses directly serving and solely attributable to the Fire
Station including but not limited to utility expenses such as electricity,
cable, water and sewer service, and operational expenses including but
not limited to maintenance costs. The Developer shall be responsible for
installation of separate meters and/or connections for electrical, cable,
water and sewer utilities to service the Fire Station. The cost of other
services such as solid waste removal and any costs of shared facilities
within the Project allocable to the Fire Station will be paid by the City.

(e) Taxes. The Fire Department' s use and ownership of the Fire Station is
solely for the specific, exclusive municipal public purpose and essential
public service of providing a Fire-Rescue Station and is not subject to ad
valorem taxation. In the event the County Property Appraiser assesses
ad-valorem taxes against the Fire Station or the remaining fee interest
owned by the City after the Closing, the Developer will cooperate with
the City ' s efforts to ensure that no taxes are assessed against the Fire
Station, at no expense to Developer. Notwithstanding anything provided
in this Agreement, in no event shall the Developer and its ' successors,
transferees and/or assigns be responsible for payment of any taxes
assessed for the Fire Station or the remaining fee interest owned by the
City after the Closing, it being agreed that the City shall be solely
responsible for same.

Section 11. Closing

(a) Closing. The Closing shall occur no later than one hundred and eighty
days (180) days from the Effective Date.

(b) Closing Documents. Upon the Closing, the Parties shall simultaneously
enter into the following documents, in addition to any other documents
necessary to effectuate the Closing, all of which shall be in form and
substance reasonably acceptable to the Parties (collectively, the
"Closing Documents"):

(i) In order to consummate the Developer Conveyance, the Developer

shall execute a deed to the City for the Developer Property (the
"Developer Deed").

(ii) In order to consummate the creation of the Air Rights Parcel, the
Parties shall execute (a) any documents, deeds, etc. establishing the
Air Rights Parcel and the Developer' s ownership thereof, and (b) all
other documents reasonably required in order to maximize
development rights to the Project.

(iii) The Parties shall execute a Declaration of Restrictive Covenants

providing for (a) various easements of support, access and utilities,

11
 (b) prohibited uses on the retail space, (c) the terms for the
public/private use of the Parking Garage and the Fire Station
Parking, (d) the provisions of clause (iv) below, and (e) such other
matters regarding the interrelationship between the Fire Station and
the rest of the Project.

(iv) The Parties shall execute such title affidavits and other documents
reasonably and customarily required by each Party's applicable title
company in order to insure title thereto.

(v) The Parties shall execute such other documents as are reasonably
required to effectuate the transactions contemplated by this
Agreement.

Section 12. Permitted Development, Uses and Building Intensities.

(a) The density proposed for the Project shall not exceed that which IS
permitted by the Approvals.

(b) The uses permitted on the Parcels include, but are not limited to, the
following uses: office, hotel, retail, entertainment, and any other uses
permitted by the Approvals.

(c) Nothing herein shall prohibit Developer from requesting an increase in

the density or intensity or modification of any other zoning regulation of
the Project permitted on the Property, as long as such increase in density
or intensity or modification of any other zoning regulation is consistent
with the Comprehensive P lan, the Approvals and this Agreement as it
exists on the Effective Date, and said increase does not negatively affect
the Fire Station's provision of service.

(d) The Project is eligible for the bonus height and Floor Lot Ratio benefits
due to the Public Benefits that the Project encompasses.

(e) Public Benefits resulting in additional benefits are those delineated in

Exhibit A. The total costs of the public benefits for the Project are above
and beyond the monetary payment which would be required under the
Public Benefits Trust Fund regulations of Miami 21 and Chapter 62 of
the City Code.

Section 13. Approvals.

(a) Once the Approvals are granted, the Approvals shall govern development
of the Parcels for the duration of this Agreement. The City'S laws and
policies adopted after the Effective Date of the Approvals may be applied
to the Parcels only if the determinations required by Section 163.3233(2),
Florida Statutes (2016) have been made after thirty (30) days written
notice to Developer and after a public hearing.

12
 (b) Pursuant to Section 163.3233(3), Florida Statutes (2016), this prohibition
on downzoning supp lements, rather than supplants, any rights that may
vest to Developer under Florida or Federal law. As a result, Developer
may challenge any subsequent ly 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 (2016).

Section 14. Local Development Permits.

(a) The development of the Project in accordance with the Approvals is

contemplated by Developer. The Project may require additional permits
or approvals from the City, County, State, or Federal government and
any divisions 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, including acting as an
applicant or co-applicant when applicable. Such approvals include,
without limitation, the following approvals and permits and any
successor or analogous approvals and permits:

(i) Subdivision plat or waiver of plat approvals;

(ii) Covenant in Lieu of Unity of Title, Unity of Title, or Restrictive

Covenant acceptance or the release of existing unities or covenants;

(iii) Building permits;

(iv) Certificates of use;

(v) Certificates of occupancy;

(vi) Stormwater Permits;

(vii) Any other official action of the City, County, or any other
government agency having the effect of permitting Development of
the Project.

(b) 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 Parcels shall be vested solely in the City
Manager's designee(s) , with the recommendation of the Planning
Director and other departments, as applicable. Any such site plan shall
be approved if it meets the requirements and criteria of the Approvals,
the Comprehensive Plan, and the terms of this Agreement.

Section 15. No Contract Zoning/Express Reservation of Police Powers. The City

cannot, and hereby specifically does not, waive or relinquish any of its regulatory approval or
enforcement rights and obligations as it may relate to regulations of general applicability which

13
may govern any of the propelties referenced in this Agreement. Nothing in this Agreement shall
be deemed to create an affirmative duty of City to abrogate its sovereign right to exercise its police
powers by approving or disapproving or taking any other action in accordance with its zoning and
land use codes, administrative codes, ordinances, rules and regulations, federal laws and
regulations, state laws and regulations, and grant agreements. In additional, nothing herein shall
be considered zoning by contract.

Section 16. Construction Timeframe. Construction of the Project shall commence

within thirty-six (36) months of the Effective Date, unless otherwise extended as provided in
Section 7 above, and six (6) months from the date of the issuance of the building permit for the
Project. Construction shall be as defined in Section 3 above. Construction of the Fire Station must
be completed within thirty-six (36) months from the issuance of the building permit for the Fire
Station. In the event the Developer is delayed as a direct result of litigation against or involving
(but in no event initiated by) Developer, the deadlines specified in this Section 16 shall be extended
by the length of such delay.

Section 17. Consistency with Comprehensive Plan. The City finds that Development
ofthe Parcels in conformity with the Approvals is consistent with the Comprehensive Plan. As of
the Effective Date, Developer is conducting an extensive analysis of the Public Facilities available
to serve the Project. In the event that the Developer is required to provide additional Public
Facilities to accommodate the Project, Developer will provide such Public Facilities consistent
with the timing requirements of Section 163.3180, Florida Statutes (2016). Developer shall be
bound by City impact fees and assessments in existence as of the Effective Date of this Agreement.

Section 18. Consistency with Federal, State, Miami-Dade County and City of
Miami Laws and Regulations. The City has undertaken review of this Agreement for compliance
with the laws, ordinances, regulations and policies of the City of Miami, and has determined that
construction of the Project will be consistent with the State Constitution and Statutes, the Florida
Building Code, and the American with Disabilities Act ("ADA").

Section 19. Necessitv of Comolvin!! with Local Regulations Relative to

Development Permits. Developer 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
not relieve Developer of the necessity to comply with the regulation governing said permitting
requirements, conditions, fees, terms, licenses, or restrictions as long as compliance with said
regulation and requirements do not require the Developer to develop the Parcels in a manner
inconsistent with the design and purpose of the Project and the laws of the City of Miami in
existence as of the Effective Date.

Section 20. Reservation of Development Rights.

(a) For the term of this Agreement, the City hereby agrees that it shall permit
the development of the Project in accordance with the Approvals and this
Agreement.

(b) The expiration or termination of this Agreement shall not be considered

a waiver of, or limitation upon, the rights, including, but not limited to,

14
 any claims of vested rights or equitable estoppel, obtained or held by
Developer or its successors or assigns to continue development of the
Project in conformity with the Approvals and all prior and subsequent
development permits or development orders granted by the City
concerning this Project. Notwithstanding the aforementioned, if
Developer has not commenced construction during tllis initial term or an
extended term, as provided in Section 7 and Section 16, the City may
seek alternative development plans, for the City Property, which do not
include Developer or the Project, whereupon the portion of the
Developer Property that is owned by the City will be reconveyed by the
City to the Developer and the portion of the City Property that is owned
by the Developer shall be reconveyed by the Developer to the City.
Furthermore, Developer or its successors or assigns shall have no
development rights, including, but not limited to, any claims of vested
rights or equitable estoppel, to continue development of the Project
whatsoever if this Agreement is terminated pursuant to Section 21 ,
below. In the event the City terminates this Agreement pursuant to
Section 21 below and construction of the Project has not yet commenced
under Section 16 above, the portion of the Developer Property that is
owned by the City will be reconveyed by the City to the Developer and
the portion of the City Property that is owned by the Developer shall be
reconveyed by the Developer to the City.

Section 21. Bi-Annual Review.

(a) Developer shall provide the City on a bi-annual basis a status of the
Project in order for the City to conduct an annual review of the
Development. Bi-annual, as the term is used herein, shall refer to twice
in a single year. This requirement shall commence three (3) months after
the Effective Date.

(b) During its review, the City may ask for additional information not
provided by Developer. Any additional information required of
Developer during a review shall be limited to that which is reasonably
necessary to determine the extent to which Developer is proceeding in
good faith to comply with the terms of this Agreement. Notwithstanding
any language in this Agreement to the contrary, the City shall also be
entitled to review at any time, within ten (10) days' written notice, and
at the Developer's main accounting office or other mutually acceptable
location, any and all financial information which is reasonably necessary
to confirm information or resolve issues that may subject to Audit,
including but not limited to, profit and loss statements, construction
updates, balance sheets, check registers, and other financial information.

(c) If the City finds on the basis of competent substantial evidence that
Developer has not proceeded in good faith to comply with the terms of
this Agreement, the City may terminate or amend this Agreement after

15
 providing thirty (30) days written notice to Developer and after a public
hearing before the City Commission.

Section 22. Collective Ownership Structure. The Developer's right to convert and
submit the overall Project or portions thereof, including the Fire Station, to a condominium form
of ownership or another collective ownership structure (a "Collective Ownership Structure") at
any time is expressly reserved under this Agreement. The City hereby expressly agrees and grants
its ' prospective consent to permit the conversion and submission of the Project or pOilions thereof,
including the Fire Station, to a Collective Ownership Structure, whether before or after the Closing.
The declaration and/or instruments governing any Collective Ownership Structure that includes
the Fire Station shall contain appropriate disclosures regarding the location of the Fire Station in
the Project and intended operations therefrom consistent with this Agreement. The Fire Station
shall not be subject to any assessments by the condominium assoc iation.

Section 23. Notices.

(a) All notices, demands, and requests which mayor are required to be given
hereunder shall, except as otherwise expressly provided, be in writing
and delivered by personal service or sent by United States Registered or
Certified Mail, return receipt requested, postage prepaid, or by overnight
express delivery, such as Federal Express, to the Parties at the addresses
listed below, Any notice given pursuant to this Agreement shall be
deemed given when received, Any actions required to be taken hereunder
which fall on Saturday, Sunday, or United States legal holidays shall be
deemed to be performed timely when taken on the succeeding day
thereafter which shall not be a Saturday, Sunday, or legal holiday.

To the City:

City Manager
City of Miami
3500 Pan American Drive
Miami, FL 33133

With copies to:

City Attorney
Miami Riverside Center
444 S.W. 2nd Avenue
9th Floor
Miami, FL 33130

Director - Department of Real Estate and Asset Management

Miami Riverside Center
444 S.W. 2nd Avenue
3rd Floor
Miami, FL 33130

16
 To Developer:

Southside Place, LLC

With a copy to:

Gunster, Yoakley & Stewart, PA

600 Brickell Avenue
Brickell World Plaza, Suite 3500
Miami, Florida 33131
ATT: Mario Garcia-Serra, Esq.

Any party to this Agreement may change its notification addressees) by providing
written notification to the remaining Parties pursuant to the terms and conditions of
this section.

Section 24. Good Faith; Further Assurances. The Parties to this Agreement have
negotiated in good faith. It is the intent and agreement of the Parties that they shall cooperate with
each other in good faith to effectuate the purposes and intent of and to satisfy their obligations
under this Agreement in order to secure to themselves the mutual benefits created under this
Agreement. The Patties shall execute such further documents as may be reasonably necessary to
effectuate the provisions of this Agreement provided that the foregoing shall in no way be deemed
to inhibit, restrict, or require the exercise of the City'S police power or actions of the City when
acting in a quasi-judicial capacity.

Section 25. 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 jurisdiction in Miami-
Dade County. In addition to any other legal rights, the City and Developer 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.
Each party shall bear its own attorneys' fees in civil actions between them arising out of this
Agreement. The Parties irrevocably waive any rights to a jury trial.

Section 26. Voluntary Compliance. Developer 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

17
action, Developer and the City shall continue to honor the terms and conditions of this Agreement
to the extent allowed by law.

Section 27. 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 and the same is
recorded in the Public Records of Miami-Dade County, Florida. This Agreement cannot be
changed or terminated orally.

Section 28. Compliance with Annlicable Law. Subject to the terms and conditions of
this Agreement, throughout the Term ofthis Agreement, Developer and the City shall comply with
all applicable federal, state, and 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 29. Representations; Representatives. Each patty represents to the other 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 30. 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 31. Failure to Exercise Rights not a Waiver; Waiver Provisions. The failure
by either party to promptly exercise any right arising hereunder shall not constitute a waiver of
such right unless otherwise expressly provided herein. No waiver or breach of any provision of
this Agreement shall constitute a waiver of any subsequent breach of the same or any other
provision hereof, and no waiver shall be effective unless made in writing.

Section 32. Force Majeure. If any Party to this Agreement shall be delayed in the
performance of any obligation herein as a result ofa Force Majeure, then the performance of such
obligation shall be extended by the length of such delay. A "Force Majeure" shall mean an event
beyond the reasonable control of either the City or Developer, which prevents either the City or
Developer from complying with any of its obligations under this Agreement, including but not
limited to: act of God (such as, but not limited to, fires, explosions, earthquakes, and hurricanes);
war, hostilities, acts of threat or terrorism (whether war be declared or not); riots, strikes, lock outs
or disorder. The Party prevented from carrying out its obligations hereunder (the "Affected
Party") shall give notice to the other Party of an Event of Force Majeure upon it being foreseen
by, or becoming known to , the Affected Party. In response to and during any delay caused by a
Force Majeure, the Parties shall at all times act diligently and in good faith to bring about the

18
termination or removal of the Force Majeure as promptly as reasonably possible and any Party
seeking an excuse of performance due to such Force Majeure shall work diligently and in good
faith to reduce or eliminate any damage, cost or delay caused by such Force Majeure. Neither the
City nor the Developer shall be considered in breach of this Agreement to the extent that
performance of their respective obligations is prevented by an Event of Force Majeure that arises
after the Effectiv~ Date of this Agreement.

Section 33. Events of Default.

(a) Developer shall be in default under this Agreement if Developer fails to

perform or breaches any term, covenant, or condition of this Agreement
and such failure is not cured within thirty (30) days after receipt of
written notice from the City specifying the nature of such breach;
provided, however, that if such breach catmot reasonably be cured within
thirty (30) days, then Developer shall not be in default if it commences
to cure such breach within said thirty (30) day period and diligently
prosecutes such cure to completion.

(b) The City shall be in default under this Agreement if the City fails to
perform or breaches any term, covenant, or condition of this Agreement
and such failure is not cured within thirty (30) days after receipt of
written notice from the Developer specifying the nature of such breach;
provided, however, that if such breach catmot reasonably be cured within
thirty (30) days, the City shall not be in default if it commences to cure
such breach within said thirty (30) day period and diligently prosecutes
such cure to completion.

(c) It shall not be a default under this Agreement if either paJ1y is declared
bankrupt by a court of competent jurisdiction. All rights and obligations
in this Agreement shall survive such bankruptcy of either party. The
Parties hereby' forfeit any right to terminate this Agreement upon the
bankruptcy of the other party. This section does not absolve Developer
of any of its obligations pursuant to the City Code should it declare
bankruptcy, including but not limited to ensuring that all construction
sites, buildings, structures, and excavation sites are safe.

(d) The default of a successor or assignee of any portion of Developer's

rights and obligations hereunder shall not be deemed a breach by the
Developer that has assigned such rights and obligations.

Section 34. Remedies Upon Default.

(a) Neither party may terminate this Agreement upon the default of the other
Party, but shall have all of the remedies enumerated herein.

(b) Upon the occurrence of a default by a Party to tllis Agreement not cured
within the applicable grace period, Developer and the City agree that any
Party may seek specific performance of this Agreement, and that seeking

19
 specific performance shall not waive any right of such Party to also seek
monetary damages, injunctive relief, or any other relief other than
termination of this Agreement. Each Patty shall bear its own attorney's
fees in any such action.

Section 35. Partial Invalidity or Unenforceability. If any term or provision of this

Agreement or the application thereof to any person or circumstance shall, to any extent, hereafter
be determined to be invalid or unenforceable, the remainder of this Agreement or the application
of such term or provision to persons or circumstances other than those as to which it is held invalid
or unenforceable shall not be affected thereby and shall continue in full force and effect.

Section 36. Severability. In the event that any provision of this Agreement, or the
application thereof, becomes or is declared by a court of competent jurisdiction to be illegal, void,
invalid or unenforceable, the remainder of this Agreement will continue in full force and effect
and the application of such provisions to other persons or circumstances will be interpreted so as
reasonably to effect the intent of the Parties. The Parties further agree to replace such illegal, void,
invalid or unenforceable provision of this Agreement with a legal, valid and enforceable provision
that will achieve, to the extent possible, the economic, business and other purposes of such illegal,
void, invalid or unenforceable provision.

Section 37. Assignment and Transfer. This Agreement shall be binding on Developer
and its heirs, successors, and assigns, including the successor to or assignee of Developer' s interest
in the Air Rights Parcel. Developer, at its sole discretion, may assign, in whole or in part, this
Agreement or any of its rights and obligations hereunder, or may extend the benefits of this
Agreement, to any subsequent owner of the Air Rights Parcel only after obtaining the City'S prior
written consent and approval, which shall not be unreasonably withheld; provided, however that
such consent and approval of the City shall not be so required in the event that certificates of
occupancy have been issued for the mixed use tower, Parking Garage, and Fire Station comprising
the Project; however, in such an event, the Palticipation Payment specified in Section 38 below
shall continue to be required prior to the first assignment, transfer, or conveyance to a third party.
Any such assignee shall assume all applicable rights and obligations under this Agreement. Any
reference to Developer in this Agreement also applies to any heir, successor, or assignee of
Developer.

Section 38. Profit Participation Payments. Developer shall provide additional Public
Benefits by making the Profit Participation Payments which shall be payable pursuant to Exhibit
H.

Section 39. Obligations Surviving. Notwithstanding any language in this Agreement

to the contrary, in the event of any lawful termination of this Agreement, the following obligations
shall survive such termination and continue in full force and effect until the expiration of one (I)
year term following the earlier of the effective date of such termination or the expiration of the
Term: (i) the exclusive venue and choice oflaw provisions contained herein; (ii) rights of any party
arising during or attributable to the period prior to expiration or earlier termination of this
Agreement; and (iii) any other term or provision herein which expressly indicates either that it
survives the termination or expiration hereof or is or may be applicable or effective beyond the
expiration or permitted early termination hereof

20
 Section 40. Lack of Agency Relationship. Nothing contained herein shall be construed
as establishing an agency relationship between the City and Developer and neither Developer nor
Its emp lo yees, agents, contractors, subsidiaries, divisions, affiliates, or guests shall be deemed
agents, instrumentalities, employees, or contractors of the City for any purpose hereunder, and the
City, its contractors, agents, and employees shall not be deemed contractors, agents, or employees
of Developer or its subsidiaries, divisions, or affiliates.

Section 41. Cooperation; Expedited Permitting; and Time is of the Essence.

(a) The Parties agree to cooperate with each other to the full extent
practicable pursuant to the terms and conditions of this Agreement. The
Parties agree that time is of the essence in all aspects of their respective
and mutual responsibilities pursuant to this Agreement. The City shall
use its best efforts to expedite the permitting and approval process in an
effort to assist Developer in achieving its Development and construction
milestones. The City will accommodate requests fi'om Developer's
general contractor and subcontractors for review of phased or multiple
permitting packages, such as those for excavation, site work and
foundations, building shell, core, and interiors, In addition, the City
Manager will designate an individual who will have a primary (though
not exclus ive) duty to serve as the City 'S point of contact and liaison with
Developer in order to facilitate expediting the processing and issuance of
all permit and license applications and approvals across all of the various
departments and offices of the City which have the authority or right to
review and approve all applications for such permits and licenses.

(b) Notwithstanding the foregoing, the City shall not be obligated to issue
any permit to the extent Developer does not comp ly with the applicable
requirements of the Approvals, the Comprehensive Plan, this Agreement,
applicable building codes, and any other statute, ordinance, rule, or
regulation.

Section 42. Enforcement.

(a) In the event that Developer, its successors, or assigns fails to act in
accordance with the terms of the Approvals or this Agreement, the City
shall have the right to enforce the provisions of this Agreement. In the
event that the City, its successors, or assigns fails to act in accordance
with the terms of Approvals or this Agreement, the Developer shall have
the right to enforce the provisions of this Agreement.

(b) Enforcement of this Agreement by any Party shall be by action against

any Parties or person violating, or attempting to violate, any covenants
set forth in this Agreement. In the event of a suit for the enforcement of
this Agreement, each Patty shall be responsible for their own attorney 's
fees.

21
 Section 43. Amendment or Termination by Mutual Consent. This Agreement may
not be amended or terminated during its term except by mutual written agreement of Developer
and the City. Prior to any amendment or termination of this Agreement during its term, the City
shall hold two (2) public hearings before the City Commission to consider and deliberate such
amendment or termination. Any amendment or termination shall be recorded in the public records
of the County at Developer's sole cost.

Section 44. Third Party Defense. The City and Developer shall each, at their own cost
and expense, vigorously defend any claims, suits, or demands brought against them by third Parties
challenging this Agreement or the Project, or objecting to any aspect thereof, including, without
limitation, (i) a consistency challenge pursuant to Section 163.3215, Florida Statutes (2010), (ii) a
petition for writ of certiorari, (iii) an action for declaratory judgment, or (iv) any claims for loss,
damage, liability, or expense (including reasonable attorneys ' fees). The City and Developer shall
promptly give the other written notice of any such action, including those that are pending or
threatened, and all responses, filings , and pleadings with respect thereto.

Section 45. No Conflict ofInterest. Developer agrees to comply with Section 2-612 of
the City Code as of the Effective Date, with respect to conflicts of interest.

Section 46. No Third-Party Beneficiary. No persons or entities other than Developer

and the City, their heirs, permitted successors, and assigns, shall have any rights whatsoever under
this Agreement.

Section 47. Counterparts. This Agreement may be executed in two (2) or more
counterparts, each of which shall constitute an original but all of which, when taken together, shall
constitute one and the same agreement. In additiort, any counterpart signature page may be
executed by any Party whosesoever such Party is located, and may be delivered by electronic
transmission of PDF, and any such electronically transmitted signature pages sent by PDF may be
attached to one or more counterparts of this agreement, and such signature(s) sent by PDF shall
have the same force and effect, and be as binding as if original signatures had been executed and
delivered in person.

Section 48. Public Records. The Parties shall comply with the Florida Public Records
Act, Chapter 119, Florida Statutes, as amended , as further provided in Exhibit H. The Developer
shall seek the City' s input and obtain the City' S prior written approval of any statements made to
the public or press or any press releases regarding the Project.

Section 49. Abutting Property Owners. The City and Developer have a mutual
interest in ensuring that construction of the Project proceeds in a marmer which is respectfill of
and sensitive to owners of property abutting the Project ("Abutting Owners"). In recognition of
this concern, during construction of the Project, Developer agrees to ensure that Abutting Owners
are compensated for any actual damages which directly result fi'om accidental loss of utility service
caused by Developer, its contractors, or subcontractors at Developer' s sole cost and expense.

Section 50. Status. Upon request from time to time by Developer, or its successor,
assigns, or any mortgagee of Developer, its successor, or assign, the City shall deliver to such
requesting party a letter (in recordable form, if requested) stating whether the obligations of

22
Developer or its successor or assign under this Agreement are current and in good stand ing or have
been satisfied. In the event Developer or its successor or assign is not current in its obligations or
such obligations are not satisfied, said letter shall state the particular manner in which such
person's obligations under this Agreement are not current and in good standing or have not yet
been satisfied.

Section 51. Estoppel. Within ninety (90) days of receipt of written request from a
Developer party, but in no event more often than three (3) times per year, the City Manager or his
designee, shall execute an estoppel certificate or similar document on behalf of the City, in form
and substance reasonably acceptable to the City Attorney, affirming Developer's compliance with
the conditions set forth in this Agreement.

Section 52. Accord and Satisfaction. No payment by the Developer or receipt by the
City of a lesser amount than a Profit Participation Payment or other amount due as specified herein
shall be deemed in satisfaction of any such amounts owed; nor sha ll any endorsement or statement
on any check remitting partial payment or any letter accompanying any partial payment be deemed
an accord and satisfaction of the Developer's obligations. The City shall accept such check or
payment without prejudice to the City' s right to recover the balance of any Profit Participation
Payment or pursue any other remedy provided herein or by law.

Section 53. Entire Agreement. This Agreement and the exhibits attached hereto and
forming a part thereof as if fully set forth herein constitute all of the covenants, promises,
agreements, conditions and understandings between the City and the Developer concerning the
Developer Property and there are no covenants, promises, conditions or understandings, either oral
or written, between them other than those set forth herein. All representations, either oral or
written, made between the Parties shall be deemed to be merged into this Agreement. No course
of prior dealings between the Parties or their officers, employees, agents or affiliates shall be
relevant or admissible to supplement, explain or vary any of the terms of this Agreement.
Acceptance of, or acquiescence in, a course of performance rendered under this Agreement or any
prior agreement between the Parties or their affiliates shall not be relevant or admissible to
determine the meaning of any of the terms ofthis Agreement. Except as herein otherwise provided,
no subsequent alteration, change or addition to this Agreement shall be binding upon the City or
the Developer unless reduced to writing and signed by the Parties. Any amendments to this
Agreement must be approved with the same formalities as were used in its execution; providing,
however, that the City Manager may administratively execute non-material (i.e. non-substantial)
amendments of this Agreement in the exercise of his professional discretion. This Agreement has
been negotiated "at arm's length" by and between the City and the Developer, each having the
opportunity to be represented by legal counsel of its choice and to negotiate the form and substance
of this Agreement, and therefore, in construing the provisions of this Agreement neither party will
be deemed disproportionately responsible for draftsmanship.

Section 54. Independent Parties. It is understood and agreed by the Parties hereto that
this Agreement does not create a fiduciary or other relationship between the Parties. The City and
the Developer are and shall be independent contracting parties and nothing in this Agreement is
intended to make either Party a general or special agent, joint venture, partner or employee of the
other for any purpose.

23
 Section 55. Captions and Section Numbers. The captions, section numbers, and
article numbers in this Agreement are inserted only for convenience and in no way defines, limit,
construe or describe the scope or intent of such sections or articles of this Agreement no in any
way affect this Agreement.

Section 56. Consents. Wherever in this Agreement, the consent of one party is required
for an act of the other party, unless otherwise specified, such consent shall not be unreasonably
withheld, delayed or conditioned.

Section 57. Construction of the Agreement. The parties agree that they have been
represented by counsel during, and each has been active in, the negotiation, preparation and
execution of this Agreement, and therefore, waive the application of any law or rule of construction
providing that ambiguities in an agreement or other document will be construed against the party
drafting such agreement or document.

Section 58. City Approvals. To the extent allowed by the City Charter and the City
Code, approvals required by this Agreement may be made administratively by the City Manager
or if authorized by a delegation from the Manager, the Director of the City of Miami Department
of Real Estate Asset Management as his authorized delegate. This Agreement requires the approval
of the City Commission for it to be legally effective and binding. The failure of such approval shall
render this Agreement null and void without further action of the Parties.

NOW WHEREOF, the City and Developer have caused this Agreement to be duly
executed.

IN WITNESS WHEREOF, the Parties have executed this Agreement.

ATTEST: CITY OF MIAMI, a Florida municipal

(SEAL: Todd Hannon, City Clerk) corporation

By: ___________________________
Daniel J. Alfonso
City Manager

Dated: __________________________

STATE OF FLORIDA )
)
COUNTY OF MIAMI-DADE )

The foregoing instrument was acknowledged before me this day of , 20

by Daniel J. Alfonso, as the CITY OF MIAMI, a Florida municipal corporation who appeared
before me and is personally known to me, or has produced as
identification, and did take an oath.

My Commission Expires: NOTARY:

24
 Print Name: _ _ __ _ _ _ _ _ _ __

Notary Public, State of Florida at Large

(Notary Seal)

APPROVED AS TO LEGAL FORM APPROVED AS TO INSURANCE

AND CORRECTNESS: REQUIREMENT

Victoria Mendez Anne Marie Sharpe

City Attorney Risk Management

25
 SOUTHSIDE PLACE, LLC,
a Florida limited liability company,
WITNESSES:

By: __________________________~
Print Name: _ _ _ _ _ _ _ _ _ __

Name: _ _ _ _ _ _ _ _ _ _ _ _ __
Title: _ __ _ _ _ _ _ _ _ _ _ __
Print Name: Dated: _ _ _ _ _ _ _ _ _ _ _ __ _

STATE OF FLORIDA )
)
COUNTY OF MIAMI-DADE )

The foregoing instrument was acknowledged before me this _~ day of _ ________

20_ by and , as the and
_ _ _ _---,-_ _ _ respectively, of SOUTHSIDE PLACE, LLC , a Florida limited liability
company, who appeared before me and is personally known to me, or has produced as
identification, and did take an oath.

My Commission Expires: NOTARY:

Print Name: _ _ _ _ _ _ _ _ _ __ _

Notary Public, State of Florida at Large

(Notary Seal)

26
 EXHIBIT A

Public Benefits

C ity Property: Conveyance of Developer Parce l to City $4,477,500

New Fire Station: Construction of new Fire Station (" Fire Station Improvements") $8,000,000
Public Benefits Cash Contribution $500,000
Fire Station Fixtures: FF&E allowance for Fire Station Fixtures $100,000
Public Parking: Conveyance of approx imately fifty (50) parking spaces to City's $1 ,500,000
DOSP
Public Streetscape: construction of unified streetscape, landscaping, etc. a long SW $ 1,000,000
2'" Ave and portions ofSW 12 Street
Participation Payment paid annually 5% of Available
Cash

TOTAL PUBLIC BENEFITS $\5,577,500 PLUS

27
 EXHIBIT B

Air Rights Parcels .

[to be inserted prior to execution}

28
EXHIBITC

City Property

29
 EXHIBIT D

Appraisal by Joseph J. Blake & Associates, Inc.

[to be inserted prior to execution}

30
 EXHIBIT E

Appraisal by Armada Appraisal & Consulting Company

[10 be inserted prior to execution}

31
 EXHIBITF

Developer Property

32
 EXHIBITG

Site Plan/Conceptual Development Plans

[to be inserted prior to execution]

33
 EXHIBIT H

Profit Participation Payments

1. Definitions. The initially capitalized terms used in this Exhibit H that are not otherwise
defined shall have the following meanings:

a. "Available Cash" means, for the applicable or pertinent period, cash receipts
derived by the Developer from Gross Revenues (without deduction for depreciation
or for other noncash expenses or items), after deduction for (a) amounts used or
necessary to pay Operating Expenses, (b) Reserves, (c) repayment in full of interest
and principal on the senior/primary secured loan made to the Developer (excluding
any and all lower priority or secondary loans such as unsecured, subordinated, or
mezzanine loans), and (d) the Developer Fees.

b. "Capital Contributions" means all contributions (excluding land) to the capital of

the Developer made by the members, partners or shareholders thereof For the
avoidance of doubt, no Capital Contribution credit shall be received in connection
with the City's conveyance to the Developer of the air rights necessary to create the
Air Rights Parcel, or the Developer's conveyance of the Developer Land to the
City.

c. "Developer Fees" means the fees that the Developer shall be permitted to pay to
any parties, including, without limitation, the members, partners or shareholders of
the Developer (or affiliates thereot) or designees. The Developer Fees shall be
excluded fi'om Gross Revenues for purposes of the Profit Participation Payments.
The fees set forth on Schedule A attached hereto shall be deemed to be approved
by the City as Developer Fees.

d. "Distributions" means all cash distributions made by the Developer to the

members, partners or shareholders thereof pursuant to Paragraph 2 below.

e. "Final Asset Disposition Event" means the date the Developer has (as determined
in its sole discretion) disposed of all remaining non-cash assets, or all membership
interests, of the Developer and has made Profit Participation Payments and
distributions of all or substantially all remaining Available Cash allocable to the
Developer and the City, other than the Reserves, and any other amounts required
for liability reserves in connection with the Developer's dissolution, if any, to the
extent they exceed the Reserves.

f. "GAAP" means generally accepted accounting principles, consistently applied, as

recognized by the accounting industry and standards within the United States.

g. "Gross Revenues" means, for the applicable period, all cash and the fair market
value of any property received from all sources (including cash on hand at the
beginning of such period to the extent not held in Reserves, proceeds fi'om a sale

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 of assets and any fund s released during such period from Reserves previously
established) by the Developer from the Project during such period.

h. "Operating Expenses" means for the applicable or pertinent period, all cash
expenditures or payments to make cash expenditures or payments made by the
Developer (or any other Deve loper's companies) in connection with the Project
during such period directly or indirectly in connection with the Developer's
business or operations (or such other Developer's companies business or
operations) in connection with the Project, including expenditures incurred for
insurance, taxes, and other expenditures paid through a third-party management
company for the operation of the Project, including accounting or bookkeeping,
printing, travel, telephone, and postage. For the avoidance of doubt, Operating
Expenses do not include capital expenditures.

I. "Profit Participation Payments" shall mean the payments made to the City under
Paragraph 2 below.

J. "Profit Participation Statement" means the written notice to be delivered by the

Developer to the City following the payment of a Profit Participatio n Payment and
following the occurrence of the Final Asset Dispositio n Event pursuant to
Paragraph 3 below.

k. "Reserves" means funds set aside or amounts allocated during such period to
reserves which shall be maintained for working capital and to pay taxes, insurance,
debt service, liabilities or other costs or expenses incident to the Deve loper's
operations and business (or such other Developer' s companies business or
operations) in connection with the Project, including its disso lution and winding
up, as determined by the Deve loper in its so le discretion from time to time. For the
avoidance of any doubt, the Deve loper may continue to maintain Reserves
following the Final Asset Dispos ition Date, subject to Paragraph 3 (c) below.

2. Profit Participation Payments. During the period that the Profit Participation Payments
are payable under this Agreement, the Developer shall payout Available Cash as Profit
Participation Payments and Distributions in accordance with this Agreement, whenever
practicable, but no less fiequently than armually, subject to the Developer having Available
Cash. Notwithstanding the Developer's discretion regarding when to make Available Cash
payments and/or distributions, Available Cas h when paid and/or distributed, must be done
so as follows: (i) to the City as Profit Participation Payments and (ii) to the Developer as
Distributions, in the following amounts and order:

a. First, 100% to the Developer until such time as the balance of the Developer's
unreturned Capital Co ntributions is reduced to zero;

b. Thereafter, (i) ninety five percent (95%) to the Developer and (ii) five percent
(5%) to the City.

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 Though the Developer retains sole discretion on the selection of a development program
for the Project, at all times the Developer will use best efforts to realize the greatest possible
profitability for the Project.

3. Profit Participation upon Final Asset Disposition Event.

a. Following the payment of a Profit Participation Payment and following the

occurrence of the Final Asset Disposition Event, the Developer shall deliver to the
City the Profit Patticipation Statement (a) setting fOlth the calculation of the
payments made to the City under Paragraph 2 and/or the final payments due under
Paragraph 2 as of the date of the Final Asset Disposition Event, as applicable. All
calculations for purposes of determining whether any final Profit Participation
Payments or Distributions shall be due hereunder shall be determined in accordance
with the tenets of good faith in the Developer's reasonable discretion, subject to
subsection (b) below and GAAP. All Profit Participation Payments made to the
City under this Agreement shall be paid to the City at the address specified herein
for notice to the City.

b. The City shall have thirty (30) days after receipt to review the Profit Participation
Statement and the Developer shall provide the City with access to the Developer' s
books and records and accounting personnel at the principal office of the Developer
located at , as reasonably required to review such
computation. In the event that the City does not agree with the determination of
the amount of unpaid or overpaid (as the case may be) Profit Participation Payments
as set forth in the Profit Participation Statement, it shall advise the Developer in
writing within a sixty (60) day period inclusive of the preceding thirty (30) day
period. Such notice shall state that it disputes the determination of the unpaid Profit
Participation Payments and detail the particular items in the Profit Participation
Statement with which it disagrees. In such event, the Parties shall agree to engage
a national certified public accounting firm acceptable to both Parties (the "CPA"),
to review and confirm the determination of the aggregate amount of Profit
Participation Payments due hereunder compared with the amount and confirm the
determination of Profit Participation Payments that have been paid to the City to
determine the aggregate amount of unpaid or overpaid Profit Patticipation
Payments. The decision of the CPA shall be binding upon the Parties (unless fraud
or a material misrepresentation is shown in a civil action in which case it shall not
be binding). The determination of the aggregate amounts of unpaid Profit
Participation Payments due and payable to the City, or any overpayment of any
Profit Participation Payments, as determined by the Developer and as detailed in
the Profit Participation Statement shall be conclusive and binding on the Patties ;
except that if the City gives timely written notice of any disputes, the aggregate
amount of Profit Participation Payments due and payable to the City, or any
overpayment of such amounts, as agreed upon in writing by Parties or pursuant to
the decision rendered by the CPA (as the case may be) shall be conclusively
determinative for all such purposes. Within thirty (30) Days following such final
determination, either (I) the Developer shall cause the Developer to pay to the City

36
 its remaining Profit Participation Payments, if any, as determined in accordance
with this Section or (II) the City shall return to the Developer any overpayment of
Profit Participation Payments it has received in accordance with this Paragraph 3.
Any payment owed to the Developer by the City or by the City to the Developer
pursuant to this Paragraph 3 (b) that is not paid within such thirty (30) day period
will accrue interest at a rate of 8% per alll1um or, if lower, the highest rate permitted
by applicable law. If the Parties engage the CPA and the aggregate amount of
unpaid Profit Participation Payments payable to the City, as determined by the
CPA, was understated, or the aggregate amount of any overpayment of Profit
Participation Payments was overstated, in the Profit Participation Statement by
more than ten percent (10%), the cost of the CPA shall be borne solely by the
Developer. Otherwise, the cost of the CPA shall be borne solely by the City.

c. In the event that after the Final Asset Disposition Event, the Developer has
Available Cash from any amounts previously held in Reserves, such Available
Cash shall be paid in accordance with Paragraph 2.

4. No Participation in Management. Notwithstanding anything in this Exhibit H to the

contrary, in no event shall the City have the right to approve any aspect of the Developer's
operations or management whatsoever, including any sale of all or any portion of the Air
Rights Parcel or other non-cash assets of the Developer, the determination of Reserves or
Available Cash or the amount of or date upon which Profit Participation Payments and
Distributions shall be made, all of which shall be in the Developer's sole discretion.
Accordingly, the City shall in no event have any liability, responsibility, culpability, or
duty relative to any management decision or any management omission or action.

5. No Assignment; Taxes. The City shall not, directly or indirectly, by operation of law or
otherwise, transfer, assign, delegate, pledge or encumber in any malll1er whatsoever, in
whole or in part, the right to receive the Profit Participation Payment under this Agreement,
which right shall be personal to the City under this Agreement, except that the City may
choose to assign its right to receive the Profit Participation Payments to an agency or
instrumentality of the City if it so wishes at the City's sole option by providing written
notice of such assignment to the Developer. For the avoidance of doubt, the City shall not
have the right to assign any rights under this Agreement other than the right to receive
Profit Participation Payments without the prior written consent of the Developer.

6. Subordination of Participation Payments to Loan Documents; Covenant Not

Running with the Land. It is expressly acknowledged and agreed that the City's right to
receive the Profit Participation Payments in accordance with this Agreement is and shall
be deemed to be automatically subordinate to any senior secured loan now or hereafter
encumbering the Air Rights Parcel or made to the Developer in cOlll1ection with the Project
and the underlying loan documents evidencing and securing any such loan, including,
without limitation, the mortgage loan. This subordination shall expressly be limited to only
the first debt, which shall mean the senior/primary secured loan, and shall not include any
lower priority or secondary loans such as unsecured, subordinated, or mezzanine loans. By
. execution of this Agreement, the City agrees to execute any and all written

37
 acknowledgements of such subordination in favor of any lender providing any such
senior/primary secured loan to the Developer in cOlmection with the Project. It is further
expressly acknowledged and agreed that the City's right to receive the Profit Participation
Payments and the Developer' s obligation hereunder to pay the same (a) shall be the
personal obligation of Southside Place, LLC under this Agreement, (b) shall in no event
run or pass with the Air Rights Parcel, and (c) shall in any event expire upon the payment
of the Profit Participation Payment due to the City, if any, following the Final Asset
Disposition Event. Without limiting generality of the foregoing , and for the avo idance of
doubt, the obligations of Southside Place, LLC under this Agreement to pay the Profit
Participation Payment shall not be binding upon or effective against any successor owner
of the Air Rights Parcel, or any portion thereof (other than Southside Place, LLC), whether
title is acquired by deed or other instrument, foreclosure, deed-in-lieu of foreclosure ,
trustee sale or otherwise, including any mortgagee or other person or entity who is the
Developer at foreclosure or who acquires title by deed in lieu of foreclosure (it being
understood and agreed, in furtherance of the foregoing , that no m0!1gagee or other person
or entity who acquires title to the Air Rights Parcel, or any portion thereof, by foreclosure
or deed in lieu of foreclosure or otherwise shall be bound to pay the Profit Participation
Payments).

7. Public Records. To the extent expressly allowed by the Florida Public Records Act,
Chapter 119, Florida Statutes, as amended, neither the Developer nor any exempt,
proprietary or confidential information provided by the Developer for the City' s review
pursuant to this Exhibit H, shall be subject to Section 119.0701, Florida Statutes. Further,
to the extent Profit Participation Statements in the City's possession are requested from the
City by Chapter 119, Florida Statutes, or as otherwise provided by law, the City must give
immediate notice to the Developer and opportunity for the Developer to redact the Profit
Participation Statements to ensure that public records that are exempt or confidential and
exempt from disclosure are not disclosed except as authorized by law.

8. GAAP. Accounting terms used but not otherwise defmed in this Agreement shall have the
meaning given them by GAAP.

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 Schedule A

List of Approved and Excluded Fees

Development Fees 4.0% of Total Project Cost (Hard and Soft Costs,
excluding Land Costs).

Construction Management Fees 2.0% of Total Project Hard Costs (which shall be
limited to actual costs and expenses directly
associated with construction management and
supervision of the Project).

Asset Management Fees 2.0% of Agreed Upon Project Value.

Property Management Fees 3.0% of Effective Gross Income for residential use;
5.0% of Effective Gross Income for office or retail
use.

Market Brokerage Fees Customary market fees; limited to brokerage fees for
leasing and sale; must be paid to a third party
Brokerage Company unrelated to Developer.

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