DEVELOPMENT AGREEMENT BETWEEN CITY OF MIAMI, FLORIDA AND MIAMI WORLDCENTER GROUP, LLC REGARDING DEVELOPMENT OF THE MIAMI WORLD CENTER PROJECT THIS AGREEMENT is entered this day of September, 2008, by and between MIAMI WORLDCENTER GROUP, LLC., a Florida limited liability company ("MWC') and its undersigned affiliates (collectively the "Developer Parties"), and the CITY OF MIAMI, FLORIDA, a municipal corporation and a political subdivision of the State of Florida ("City"). WITNESSETH: WHEREAS, on September, 2008 the City Commission approved the rezoning from SD-16.1 to SD-16.3 of property located in the Park West area of the City bordered on the north by 11th Street on the south by 6th Street, on the east by N.E. 2nd Avenue and on the west by Miami Avenue ("Park West District"); WHEREAS, Developer Parties hold the fee simple title or other Property Interests in certain real property situated in the Park West District, and may acquire additional property in the Park West District or on City blocks immediately adjacent to the Park West District (all such owned or after acquired property within or immediately adjacent to the Park West District being referred to herein a "Property" and collectively, as the "Properties"); WHEREAS, the Developer Parties contemplate constructing on the Properties a large, high-density, mixed-use development consisting of multiple buildings constructed over a period of time of up to twenty (20) years ("Project"), commonly referred to at the Miami World Center; 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; WHEREAS, assurance to a developer that it 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; WHEREAS, the Properties in the Park West District are designated Restricted Commercial in the City's Future Land Use Map and zoned as SD-16.3 in the City's Official Zoning Atlas, and other Properties outside the Park West District are zoned various other designations according to the Existing Zoning, and the Developer Parties and the City mutually desire that the Properties be developed as permitted in the City's comprehensive plan and Existing Zoning; WHEREAS, the City Commission pursuant to Resolution No., adopted September, 2008 has authorized the City Manager to execute this Agreement upon the {M2715824;2 9/16/08} 1
terms and conditions as set forth below, and the Boards of Directors of the Developer Parties or their parent or controlling entities have authorized the Developer Parties to execute this Agreement upon the terms and conditions set forth below; and WHEREAS, the Project is located in the Southeast Overtown Park West Development of Regional Impact ("SEOPW DRI") and Community Redevelopment Area ("CRA"). The SEOPW DRI presently has insufficient development capacity to accommodate the full Project buildout; and WHEREAS, to facilitate the Project the CRA plan and SEOPW DRI may need to be amended, subject to any required legal procedures and approvals. NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter contained, the parties hereto do and hereby mutually agree and bind themselves as set forth herein: Section 1. 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. This covenant shall be binding upon, and inure to, the benefit of the parties, their successors, assigns, heirs, legal representatives, and personal representatives. Section 2. Rules of Legal Construction. For all purposes of the Agreement, unless otherwise expressly provided: (a) (b) (c) 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; and (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 any Developer Party as all parties are drafters of this Agreement. (f) The recitals are true and correct and are hereby incorporated into and made a part of this Agreement. All attachments, exhibits and appendices attached hereto shall be deemed hereby adopted and incorporated herein, provided, any conflict between the attachments and this Agreement, this Agreement shall be deemed to control. Section 3. Definitions as used herein. "Agreement" means this Agreement between the City and Developer Parties. {M2715824;2 9/16/08} 2
"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 plan adopted by the City pursuant to Chapter 163, Florida Statutes ("F.S."), meeting the requirements of Section 163.3177, F.S., Section 163.3178, and Section 163.3221(a), F.S., which is in effect as of the Effective Date. "County" means Miami-Dade County, a political subdivision of the State of Florida. "Development" means the carrying out of any building activity, the making of any material change in the use or appearance of any structure or land, or the dividing of land into three or more parcels and such other activities described in Section 163.3221(4), Florida Statutes (2004). "Effective Date" is the latter of the dates of recordation of this instrument or thirty days after this instrument has been received by the state land planning agency pursuant to Section 163.3239, Fla. Stat. "Existing Zoning" is comprised of City of Miami Ordinance No 11000, adopted March 8, 1990, and amended through the date hereof, which adopts the effective land development regulations governing development of the Property. "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. "Property Interest" means any interest or rights in real property or appurtenances of the Properties, including but not limited to, fee simple, leasehold, condominium, transferable development right or air rights, and licenses, however acquired, including any interests or rights in real property acquired through foreclosure, deed in lieu of foreclosure or any other realization of a security interest in real property. Without limiting the foregoing, a Community Development District and/or a master property owners' association with appropriate authority relating to one or more of the Properties shall be deemed to hold a Property Interest. "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. Section 4. Intent. It is the intent of the Developer Parties and the City that this Agreement should be construed and implemented so as to effectuate the purposes and intent of the parties and the purpose and intent of the Florida Local Government Development Agreement Act, Section 163.3220, F.S., et. al. {M2715824;2 9/16/08} 3
Section 5. Term and Effective Date. This Agreement shall become effective on the Effective Date. The Agreement shall be recorded in the public records of Miami-Dade County and with the City Clerk and shall have a term of twenty (20) years from the Effective Date and shall constitute a covenant running with the land. The term of this Agreement may be extended, and this Agreement may be modified, upon execution of a written instrument approved by the Developer Parties and the City Commission or any other legally required authority. The City may apply subsequently adopted laws and policies to the Properties pursuant to the procedures of Section 163.3233(2), Florida Statutes. This Agreement may not be terminated during its term except by mutual agreement of the Developer Parties and the City. Section 6. Permitted Development Uses and Building Intensities. (a) Permitted Development Uses. The City has designated the Properties in the Park West District as a Special District SD-16.3 on the official zoning Atlas of the City, pursuant to the applicable procedures in the Existing Zoning. In approving such Special District, the City has determined that development and uses thereunder are consistent with the City's Comprehensive Plan and in accordance with the City's Existing Zoning in effect as of the Effective Date. Upon execution of this Agreement and for the duration thereof, the City confirms and agrees that the Properties may be developed and used for the purposes established in the City's Comprehensive Plan and Existing Zoning in effect as of the Effective Date of this Agreement, or such laws and policies subsequently adopted and applied to the Properties solely pursuant to the procedures of Section 163.3233(2), Florida Statutes. (b) Density, Building Heights, Setbacks Uses and Intensities. Except as otherwise provided herein, the maximum height, setbacks, uses and intensities for any development on the Properties within SD-16.3 shall be regulated by the Existing Zoning in effect as of the Effective Date and the applicable designations in the City's Comprehensive Plan. Section 7. Project Approval. (a) Further Development Review. The Comprehensive Plan, Existing Zoning, and this Agreement establish the criteria upon which the Properties shall be developed during the term of this Agreement. (b) Prohibition on Downzoning. For the duration of this Agreement, the City may adopt new or change land development regulations that purport to apply to the Properties; however, no such new regulations shall be enforceable against the Properties if a Developer Party determines in its sole discretion that the new regulation limits or restricts development as compared to the Existing Regulations. In such case, instead of the new regulation, Existing Zoning shall apply. However, the City may apply subsequently adopted laws and policies affecting the Park West District generally, solely to the extent authorized by, and pursuant to the procedures of, Section 163.3233(2), Florida Statutes. (c) Development of Regional Impact. Subject to required legal processes and approvals, the City shall cooperate with the Developer Parties and expeditiously facilitate the amending of the SEOPW DRI, reserving and allocating sufficient development credits from the SEOPW DRI for the Project, the approval of a new Development of Regional Impact for the {M2715824;2 9/16/08} 4
Project, or other approvals or legislation that either increases the allowable thresholds for development sufficient to accommodate the full Project buildout without further DRI review for the Project, or eliminates entirely the need for the project to be reviewed under the Development of Regional Impact process. Section 8. Public Services and Facilities; Concurrence. For the purposes of concurrency review, it is hereby found that, throughout the duration of this Agreement, the City shall reserve sufficient infrastructure capacities and shall cause them to remain available to serve this Project. All subsequent development orders or permits sought to be issued which are in conformity with Existing Zoning and this Agreement are hereby found to meet concurrency standards set forth in the Comprehensive Plan as such standards may be amended from time to time (concurrency regulations) and to be consistent with Existing Zoning, so long as the Developer Parties develop the Properties substantially in compliance with the terms and conditions contained within this Agreement. Notwithstanding the foregoing, the Developer Parties acknowledge that the City is not responsible (i) for water and sewer service and those other services provided by the County and (ii) for any commercial solid waste removal and/or recycling contract that any Developer Party may have from time to time with a private hauler (collectively, the "Non-City Services"), and as such, the City can not guarantee adequate capacity with respect to Non-City Services. Section 9. Reservation or Dedication of Land. Except as otherwise provided below and pursuant to applicable subdivision regulations, any Developer Party shall not be required to dedicate or reserve any land within the Properties for municipal purposes. However, the Developer Parties shall cause to be created within the Project at least one public open space of at least twenty thousand square feet (20,000 sq ft) ("Open Space"). Such obligation shall be fulfilled by the dedication of an amount of open space prior to obtaining a building permit for a structure that requires use of the bonus contained in City Code Section 16.3.17.2.1.3(a) (proposed) relating to the aggregation of open space. The location and dimensions of such Open Space shall be substantially in accordance with the Regulating Plan attached hereto as Exhibit " " and as legally described in Exhibit " " attached hereto, or as otherwise mutually agreed by the Developer Parties and the City. At the time of execution of this Agreement, the Developer Parties contemplate that such Open Space will have one side on North East First Street and will be located on a block between North East Seventh Street and North East Tenth Street. However, such location is contingent on the Developer Parties acquiring control of all the land required for such location, as well as urban design factors relating to the Developer Parties' acquisition of additional land surrounding the Project. Therefore, by mutual agreement, the Developer Parties and the City may change the location of such Open Space. Section 10. Local Development Permits. The development of the Properties in accordance with the Existing Zoning is contemplated by the Development Parties. The Project 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: {M2715824;2 9/16/08} 5
(a) (b) (c) covenants; (d) (e) (f) Class II Special Permit and other site plan approvals; Subdivision plat and or waiver of plat approvals; Covenant or Unity of Title acceptance or the release of existing unities or Building permits; Certificates of use and/or occupancy; Development of Regional Impact approval or modification; and (g) Any other official action or the City on other government agency having the effect of permitting the development of land. In the event that the City substantially modifies its land development regulations regarding site plan approval procedures, for example the procedure for a Class II Special Permit, which as of the date of this Agreement may include non-binding comments from the City's Urban Development Review Board, authority to approve any site plan for a project on one of the Properties shall be vested solely in the City's Planning Director, and such approval shall be given subject only to the requirements and criteria of Existing Zoning and the terms of this Agreement. Section 11. Consistency with Comprehensive Plan. The City hereby finds that the development of the Properties in conformity with the Existing Zoning is consistent with the City's Comprehensive Plan designation as of the Effective Date and shall not be subject to any future changes to the City's Land Development Regulations and Comprehensive Plan designation after the Effective Date; provided, however, the City may apply subsequently adopted laws and policies affecting the Park West District generally to the extent authorized by, and solely pursuant to the procedures of, Section 163.3233(2), Florida Statutes.: Section 12. Necessity of Complying with Local Regulations Relative to Development Permits. The Development 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 of this Agreement shall not relieve MWC of the necessity of complying 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 any Developer Party to develop a Property in a manner that is inconsistent with Existing Zoning. Section 13. Reservation of Development Rights. For the term of this Agreement, the City hereby agrees that it shall permit the development of the Properties in accordance with the City's Comprehensive Plan at the time of the Effective Date and the Existing Zoning, subject to the conditions of this Agreement. However, nothing herein shall prohibit an increase in developmental density or intensity permitted on the Properties in a manner consistent with the City's Comprehensive Plan and Existing Zoning, or any change requested or initiated by any Developer Party in accordance with applicable provisions of law. Moreover, the City may apply subsequently adopted laws and {M2715824;2 9/16/08} 6
policies to the Properties generally to the extent authorized by, and solely pursuant to the procedures of, Section 163.3233(2), Florida Statutes. The expiration or termination of this Agreement, for whatever reason, 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 any Developer Party or its successors or assigns to continue development of the Property in conformity with Existing Zoning and all prior and subsequent development permits or development orders granted by the City, including, but not limited to, those rights granted under the City's Comprehensive Plan and Existing Zoning. Section 14. Community Development District. In the event that the City and County establish a Community Development District ("CDD") for the Project, the CDD may assume any responsibility of any Developer Party under this agreement. Section 15. 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 telex, telecopy, telegram, 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 and telecopy numbers listed below. Any notice given pursuant to this Agreement shall be deemed given when received. Any actions required to be taken hereunder which fall on Saturday, Sunday, or United States legal holidays shall be deemed to be performed timely when taken on the succeeding day thereafter which shall not be a Saturday, Sunday or legal holiday. To the City: City Manager City of Miami 3500 Pan American Drive Miami, FL 33133 With a copy to: City Attorney Miami Riverside Center 444 S.W. 2nd Ave., 9th Floor Miami, FL 33130 To the Developer Parties: Managing Member Miami WorldCenter LLC.. Miami, FL 331 With copies to: Berger Singerman Attn: Sam Poole 200 S Biscayne Blvd, Ste. 1000 Miami, FL 33131 {M2715824;2 9/16/08} 7
Any Party to this Agreement may change its notification address(es) by providing written notification to the remaining parties pursuant to the terms and conditions of this section. Section 16. 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 the County. In addition to any other legal rights, the City and the 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 17. Voluntary Compliance. The 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, the Developer Parties and the City shall continue to honor the terms and conditions of this Agreement to the extent allowed by law. Section 18. 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 19. Compliance with Applicable Laws. Subject to the terms and conditions of this Agreement, throughout the Term of this Agreement, the 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 20. 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 21. 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. {M2715824;2 9/16/08} 8
Section 22. 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 23. Events of Default. (a) A Developer Party shall be in default under this Agreement if any of the following events occur and continue beyond the applicable grace period: a Developer Party fails to perform or breaches any term, covenant, or condition of this Agreement which is not cured within thirty (30) days after receipt of written notice from the City specifying the nature of such breach; provided, however, that if such breach cannot reasonably be cured within thirty (30) days, then a Developer Party 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 a Developer Party specifying the nature of such breach; provided, however, that if such breach cannot reasonably be cured within thirty (30) days, the City shall not be in default if it commences to cure such breach within said thirty (30) day period and diligently prosecutes such cure to completion. It shall not be a default under this Agreement if either party 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. The default of any Developer Party or successor or assignee of any portion of a Developer Party's rights hereunder shall not be deemed a breach by any other Developer Party or any other successor or assignee of any portion of the rights of a Developer Party hereunder or any other successor or assignee. Section 24. Remedies Upon Default. Neither party may terminate this Agreement upon the default of the other party, but shall have all of the remedies enumerated herein. Upon the occurrence of a default by a party to this Agreement not cured within the applicable grace period, the Developer Parties and the City agree that any party may seek specific performance of this Agreement, and that seeking specific performance shall not waive any right of such party to also seek monetary damages or any other relief other than termination of this Agreement. The City hereby acknowledges that any claim for damages under this Agreement is not limited by sovereign immunity or similar limitation of liability. In addition to any other remedies available to the City hereunder, in the event of default by any Developer Party or any successor or assignee, the City may withhold any permit or other approval, but only for the party in breach. Section 25. Severability. 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 {M2715824;2 9/16/08} 9
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 26. Assignment and Transfer. This Agreement shall be binding on the Developer Parties and their heirs, successors and assigns, including the successor to or assignee of any Property Interest. A Developer Party, 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 holder of a Property Interest without the prior written consent or any other approval of the City. In addition, additional parties that are affiliates or assignees of the Developer Parties may be added to this Agreement if the party added holds a Property Interest in or adjacent to the Park West District and executes a joinder form in the form attached as Exhibit " ", and records such joinder form in the public records of Miami-Dade County. Such party shall be a Developer Party, and such joinder form shall be acknowledged by the City Manager or his or her designee. Any such assignee or additional party shall assume all applicable rights and obligations under this Agreement. Section 27. Obligations Surviving Termination Hereof. Notwithstanding and prevailing over any contrary term or provision contained herein, in the event of any lawful termination of this Agreement, the following obligations shall survive such termination and continue in full force and effect until the expiration of a one year term following the earlier of the effective date of such termination or the expiration of the Term: (i) the exclusive venue and choice of law provisions contained herein; (ii) rights of any party arising during or attributable to the period prior to expiration or earlier termination of this Agreement, and (iii) any other term or provision herein which expressly indicates either that it survives the termination or expiration hereof or is or may be applicable or effective beyond the expiration or permitted early termination hereof. Section 28. Lack of Agency Relationship. Nothing contained herein shall be construed as establishing an agency relationship between the City and any Developer Party and neither any Developer Party nor its employees, agents, contractors, subsidiaries, divisions, affiliates or guests shall be deemed agents, instrumentalities, employees, or contractors of the City for any purpose hereunder, and the City, its contractors, agents, and employees shall not be deemed contractors, agents, or employees of any Developer Party or its subsidiaries, divisions or affiliates. Section 29. Cooperation; Expedited Permitting and Time is of the Essence. 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 to the extent reasonably practical the permitting and approval process in an effort to assist any Developer Party in achieving its demolition, development and construction milestones. The City will accommodate requests from a Developer Party's general contractor and subcontractors for review of multiple permitting packages, such as those for site work and foundations, and building shell, core and interiors. In addition, the City will designate an individual within the City Manager's office who will have a primary (though not exclusive) duty to serve as the City's point of contact and liaison with the Developer Parties in order to facilitate expediting the processing and issuance of all permit and license applications and approvals across all of the {M2715824;2 9/16/08} 10
various departments and offices of the City which have the authority or right to review and approve all applications for permits and licenses. Notwithstanding the foregoing, the City shall not be obligated to issue development permits to the extent a Developer Party does not comply with the applicable requirements of the City's Existing Zoning and applicable building codes. Section 30. Cancellation and Enforcement. In the event that a Developer Party, its successors and/or assigns fails to act in accordance with the terms of the Existing Zoning, the City shall seek enforcement of said violation upon the subject Property. Enforcement of this Agreement shall be by action against any parties or person violating, or attempting to violate, any covenants set forth in this Agreement. The prevailing party in any action or suit pertaining to or arising out of this Agreement shall be entitled to recover, in addition to costs and disbursements allowed by law, such sum as the Court may adjudge to be reasonable for the services of this/her/its attorney. This enforcement provision shall be in addition to any other remedies available at law, in equity or both. Section 31. Third Party Defense. City and Developer Parties shall, at their own cost and expense, vigorously defend any claims, suits or demands brought against it by third parties threatening the Agreement, challenging its enforceability, or objecting to any aspect thereof, including, without limitation, any claims for loss, damage, liability, or expense (including reasonable attorneys' fees). City and Developer Parties 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. Notwithstanding the foregoing, in the event that Developer Parties are not reasonably satisfied with the City's defense, Developer Parties shall have the right to assume the defense of any such claim or action on behalf of the City by counsel selected by Developer Parties and reasonably acceptable to the City and, in the event of such assumption of defense obligation by Developer Parties, City shall reimburse Developer Parties from time to time, within thirty (30) days following Developer Parties' or its counsel's tender of a detailed invoice setting forth attorneys' fees and costs for the defense of the City. Section 32. No Conflict of Interest. Pursuant to City of Miami Code Section 2-612 as of the Effective Date, regarding conflicts of interest, the Developer Parties hereby certify to City that none of the officers or owners of any Developer Party nor any immediate family member of any of the same is also a member of any board, commission, or agency of the City. Section 33. No Third-Party Beneficiary. No persons or entities other than the Developer Parties and the City, their heirs, permitted successors and assigns, and any party that has executed a copy of the attached Joinder Form, shall have any rights whatsoever under this Agreement. Section 34. Counterparts. This Agreement may be executed in three or more counterparts, each of which shall constitute an original but all of which, when taken together, shall constitute one and the same agreement. {M2715824;2 9/16/08} 11
NOW, WHEREOF, the City and the Developer Parties have caused this Agreement to be duly executed. [Signature blocks for City and all Developer Parties] {M2715824;2 9/16/08} 12
Exhibit " " ASSIGNEE OR ADDITIONAL PARTY TO DEVELOPMENT AGREEMENT JOINDER FORM AND ACKNOWLEDGEMENT OF JOINDER This ASSIGNEE OR ADDITIONAL PARTY TO DEVELOPMENT AGREEMENT JOINDER FORM ("Joinder Form") is executed of this day of, 20 by the undersigned entity. RECITALS Whereas the City has entered into a Development Agreement dated, 20 and recorded in the public records of Miami-Dade County, Book, Page ("Development Agreement") with certain Developer Parties as defined therein. Whereas the Development Agreement secures certain benefits and obligations for the mutual benefit of the City and the Developer Parties, as set forth in the Development Agreement. Whereas the Development Agreement allows joinder of additional parties, when such additional party owns any Property Interest in any part of the Properties as those terms are defined in the Development Agreement. Whereas the Development Agreement requires that such additional party execute this joinder form in order to become a party to the Development Agreement. Whereas the undersigned desires to enjoy the benefits conferred upon the Developer Parties under the Development Agreement, and in consideration for such benefits agrees to be bound by the obligations imposed therein upon the Developer Parties. Whereas the undersigned owns a Property Interest in a part of the Properties, more particularly described in Exhibit " " attached hereto. Now therefore, in consideration of the benefits conferred upon any Developer Party by the aforementioned Development Agreement, and certifying that the above recitals are true and correct, and incorporating such recitals herein, the undersigned does hereby execute this Joinder Form and become a Developer Party to the Development Agreement. The undersigned shall assume all of the benefits, and be bound, comply with, and perform all of the obligations, as set forth in the Development Agreement and as applicable to the Property Interest which the undersigned owns. The undersigned shall be obligated to the City for the benefit of the City, and the City shall have all rights and remedies set forth in the Development Agreement to enforce the terms of the Development Agreement against the undersigned, to the extent applicable to the Property Interest owned by the undersigned. The undersigned also hereby represents that it has full power and authority to execute this Joinder Form, and certifies to City that none of its owners or officers, nor any immediate family {M2715824;2 9/16/08} 13
member of any of such owners or officers, is also a member of any board, commission, or agency of the City. [Signature block] The City hereby acknowledges and consents to the joinder of the above signatory as a Developer Party to the Development Agreement. [Signature of City Manager] {M2715824;2 9/16/08} 14