ATTACHMENT A

Draft

Contract No. RFP0000008

Development of Property at the SW 296th Street TransitWay Station

Development Agreement

SCHEDULES

Schedule 1.1 Development Site Schedule 1.4A Development Plan Schedule 1.4B Project Schedule Schedule 1.7 Rental Regulatory Agreement Schedule 1.7A Ground Lease Schedule 1.7B Rental Regulatory Agreement Schedule 3 Security Deposit, Development Fee, and Rent Schedule Schedule 4.16 Building Construction Responsible Wages and Benefits Requirements Schedule 19.15 Sustainable Buildings Program Requirements Schedule 21.2 County’s Estoppel Certificate Schedule 20.17A Request for Proposals (RFP) No. RFP0000008 Schedule 20.17B Developers Response to Request for Proposals (RFP) No. RFP0000008

Miami-Dade County, Florida Contract No. RFP0000008

Sample Development Agreement for Joint Development of Property at the SW 296th Street TransitWay Station

THIS DEVELOPMENT AGREEMENT (this “Agreement”), dated as of the ___ day of ________, 20____, made by and between MIAMI-DADE COUNTY, a political subdivision of the State of

Florida, through the Miami-Dade Department of Transportation and Public Works, having its principal office and place of business at 701 N.W. 1st Court, Miami, Florida 33136 (hereinafter called "County" or "DTPW"), and _________________________________, having an office and place of business at _______________________________( "Developer") (each a Party, and, together with “County” or “DTPW”, collectively referred to as the “Parties”).

W I T N E S S E T H:

A. County owns certain real property located in Miami-Dade County, Florida, as more particularly described on Schedule 1.1, attached hereto and made a part hereof (the

"Development Site" or the “Site”).

B. _____________________ submitted to County its response to a Request for Proposals

Number __________ for the Land (the “Proposal”).

C. Developer submitted the Proposal to County in response to RFP No. _____ for construction of a mixed-use development on the Demised Premises, comprising of Low-

Income, Workforce, and market rate residential housing and incidental retail.

D. On __________ __, 202_, the Miami-Dade County Board of County Commissioners (Board) adopted Resolution No. _______, authorizing County to enter into this Development

Agreement by and between Miami-Dade County and ___________.

E. County has a material interest in developing the Site to the highest and best transit related use which incorporates Transit Oriented Development concepts, includes affordable housing, and focuses density around the SW 296th Street TransitWay Station.

F. County recognizes the potential for public and private benefit through a joint use development of the Site, in order to promote usage of the Miami-Dade transit system and further economic development in Miami-Dade County.

G. To facilitate the development of the Site, County issued a Request for Proposal dated ______, 20__ (the “RFP”) with respect to the Development Site, as set forth in Schedule 20.17A and made a part hereof.

H. Based on the Developer’s response to the RFP and resulting negotiations in connection therewith, as set forth in Schedule 20.17B and a made a part hereof, County desires to award

Developer this Agreement which sets forth the right and obligation to undertake the development of the Site in accordance with the Developer’s Development Plan, which sets forth the Developer’s concept for the entire Development Site, as described in Schedule

1.4A, and the Developer’s Project Schedule, as set forth in Schedule 1.4B.

I. The intent of County in awarding this Agreement is for the Developer to timely complete the

Project upon the Development Site and not for speculation in landholding.

J. In furtherance of this goal, the Parties agree that Developer, upon timely completion of the

Closing Conditions as contained herein, will enter a long-term ground lease with the County for the Development Site, or if Phased Development is contemplated, ground lease for each

Phase of the Development on a Phase-by-Phase basis, in substantially the form attached hereto as Schedule 1.7A (the “Lease”).

K. The Lease(s), subject to the conditions set forth in this Agreement, will be executed and delivered at Closing on the Scheduled Closing Date(s).

L. Any Rental Regulatory Agreement between the Developer and Public Housing and

Community Development (PHCD) shall also be executed and delivered at Closing in substantially the form attached hereto as Schedule 1.7B.

M. Each of the Parties desire to enter into this Agreement for the timely development of the

Project upon the Development Site in accordance with the Development Plan.

N. Capitalized terms used herein shall have the definitions set forth in Article 2 hereof and/or as elsewhere defined herein, including the foregoing recitals.

NOW, THEREFORE, in consideration of the foregoing and the covenants of the Parties set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:

ARTICLE 1

General Terms of Development Agreement

Section 1.1 Development Agreement to Enter Lease of Land and Air Rights

In accordance with (a) Chapter 125, Florida Statutes; (b) the powers granted to the County pursuant to authority properly delegated by the Florida legislature; and (c) the authority to lease real property and air rights over real property belonging to Miami-Dade County; and, for and in consideration of the fees, covenants, and agreements specified herein, the County agrees, pursuant to the terms of this Agreement, and does hereby grant unto the Developer, its successors and assigns, and the Developer does hereby take and hire, upon and subject to the conditions and limitations herein expressed, the right and obligation to develop the Development Site as more particularly described in Schedule 1.1 in accordance with the Development Plan, and upon satisfaction of the Closing Conditions enter into the Lease(s) with the County for the Development

Site for such purposes, reserving to the County the rights described herein, to have and to hold the same unto the Developer, its successors and assigns for the Term.

Section 1.2 Conditions Precedent to Effectiveness of Development Agreement

This Agreement shall not become effective unless and until the Federal Transit Administration

(FTA), the Florida Department of Transportation (FDOT), and the Board of Miami-Dade County

Commissioners (the “Board”) shall have approved the execution of this Agreement.

Section 1.3 Term of Development Agreement

This Agreement shall be for a Term commencing on the Commencement Date and expiring on the

Closing Date of the Project in its entirety (if Phased Development is not contemplated) or for the

Closing Date of the Final Phase of the Project to be developed under this Agreement (if a Phased

Development is contemplated) as provided herein (the “Term”). The obligation to pay

Development Fee(s) shall begin on the Commencement Date. If the Project is developed in Phases, any Lease(s) which becomes effective pursuant to this Agreement shall be subject to the terms and conditions of this Agreement until a Lease for the Final Phase of the Project becomes effective, at which time the Term of this Agreement shall expire. For the avoidance of doubt, and notwithstanding any provision of this Agreement to the contrary, upon the Effective Date of the

Lease, all obligations in this Agreement related to the Development Site shall be incorporated into the Lease, and any default under this Agreement shall not be a default under the Lease.

Notwithstanding the foregoing, Developer and its affiliates, or respective successors, acknowledge that any default under the Lease may become a default under this Agreement pursuant to Section

17.3 of this Agreement.

Section 1.4 Development of Project Under Development Plan

The Developer’s Development Plan which describes the Developer’s concept for the entire

Development Site is attached hereto as Schedule 1.4A. The Developer’s Project Schedule, as approved by DTPW, is attached hereto as Schedule 1.4B. The Developer shall develop and construct the Development Site in substantial conformity with the Development Plan and the

Project Schedule. The Project Schedule sets forth the following deadlines for the development of the Project, or each Phase of the Project (“Milestones”):

A. Design completion;

B. The Scheduled Closing Date;

C. Construction Commencement; and

D. Construction Completion.

Section 1.5 Changes and Alterations to the Development Plan

The Developer shall have the right to propose changes to the Development Plan to the County, which the County may approve in its sole and absolute discretion, and which approval must be in writing. Such proposed changes may include, but not be limited to, the right to propose a change to a phased development. However, County shall not approve such changes unless the following conditions are satisfied:

A. The method, Project Schedule, and plans and specifications for the proposed revised

Development Plan, in substantially final form, are submitted to the County at least one hundred eighty (180) days prior to the date that the Closing Conditions are required to be satisfied for the Project or Phase of the Project as applicable;

B. The proposed revised Development Plan does not violate any other provisions of this

Agreement;

C. The proposed revised Development Plan shall not at any time change or adversely affect

County facilities or utilities serving County-owned facilities, or any access thereto except as may be required by Laws and Ordinances and agreed to by County in writing;

D. The proposed revised Development Plan will produce, based on reasonable projections, an amount of Fees and Rent to County over the Term of the Agreement and Lease(s) entered into pursuant to this Agreement, an amount in Fees and Rent that is not less than that which would have been paid to the County, over the same period of time, prior to such revision;

E. The proposed revised Development Plan does not reduce the value of the improvements and/or services which Developer has proposed to contribute to County facilities in response to Request for Proposals No. ____, and

F. Developer obtains all approvals, Permits, and authorizations required under then applicable

Laws and Ordinances prior to Closing on any Lease(s).

G. Notwithstanding the above, if due to site conditions which could not have been reasonably foreseen, the Development Plan must be revised, the Development Plan and Project Schedule shall be adjusted only to the extent that such revision is required as a direct result of such site conditions.

Section 1.6 Phased Development Contemplated (if applicable)

The Developer has submitted a Development Plan, or the Parties have agreed to a Development

Plan after Commencement of this Agreement, and the County has approved such plan in writing.

The approved Development Plan calls for a phased development approach (“Phased

Development”) which shall mean the division of the Project into separate and distinct portions or

Phases, under separate Leases for the purposes of development, construction, financing, ownership, operation, and management of Improvements. The term is not meant to require development of the Phases in any particular sequence and Phases may be developed in any sequence or concurrently. Each Phase must be completed in conformity with the Development

Plan and the Project Schedule contained in Schedule 1.4, as may be amended in accordance with

Section 1.5 above and must, on a stand-alone basis, comply with all applicable Laws and

Ordinances, including but not limited to, be in compliance with building and zoning codes, be commercially and economically viable, be capable of operating independently from all other

Phases, and allow for free and open access to and between all Phases and all SW 296th Street

TransitWay Station facilities.

Each Phase may be developed and constructed through an assignment of a Phase as provided by

Article 14; however, all obligations and Milestones under this Agreement will apply to each Phase.

All rights on, over, under, through, to, from, and between each Phase of the Project necessary for the continued construction, maintenance, operation, management, and usage of each and every

Phase must be obtained and platted/recorded in advance of Closing on any Project Phase at

Developer’s sole cost and expense. Shared easements may be platted/recorded within the

Development Site but shall be contained within a Phase.

The proposed Project may not be cross-collateralized or cross-defaulted with any other property, project, or other assets. Further, if a Phased development or similar type of development with separate components is proposed, each Phase or component of the Project must be independently financed, and no Phase(s) or component(s) may be cross-collateralized or cross-defaulted with any other Phase(s) or component(s).

Section 1.7 Lease(s) Delivered at Closing

A. The Development Site being offered to the Developer is solely for the development of the

Project and not for speculation in landholding. Prior to Closing (at which time a Lease shall be executed by the Parties, and a Rental Regulatory Agreement shall be executed by

Developer and PHCD), only this Agreement shall be in effect and there shall be no lease encumbering the Development Site.

B. Upon satisfaction of the Closing Conditions, the Parties will execute and deliver, or have executed and delivered, the Lease for the Development Site, or if Phased Development is contemplated, a Lease for the portion of the Development Site included within the Phase of the Project in which construction will be commencing, on a Phase-by-Phase basis. If Phased

Development is contemplated, separate Leases will be executed on separate Closing Dates for each Phase of the Project subject to the terms and conditions hereof.

C. At Closing, any pre-paid Development Fee covering a period of time after which Closing has occurred shall be credited to the amount of the Initial Rent due under the Lease. Additionally, any remaining Initial Rent and any other amount due to County shall be deducted from the

Security Deposit, or if applicable, the portion allocated to this Phase, as payment of Initial

Rent and any other amounts due to County. If, at Closing, there are any amounts due to

County which exceed the amount of any pre-paid Development Fee and applicable portion of the Security Deposit, Developer shall deliver to County a certified check or equivalent, at

County’s discretion, for any such amounts as a condition of Closing.

D. The Parties acknowledge and agree that, as of the Commencement Date of this Agreement, the Lease(s) have been fully negotiated and in final form (in all material respects) as set forth in Schedule 1.7A and shall not be modified in any material respect, except as the Parties may mutually agree in their respective sole discretion (it being understood that the Parties will act in good faith and fair dealing).

E. A Rental Regulatory Agreement (Schedule 1.7B) between the Developer and PHCD shall also be executed and delivered at Closing.

F. The execution and delivery of the Lease(s) and the execution of any such other instruments as may be necessary in connection therewith and/or otherwise in connection with the Project shall be held. on the Scheduled Closing Date(s), or such earlier date as the Parties may mutually agree or such later date for Closing, as the same maybe extended pursuant to

Section 3.3 of this Agreement.

The execution and delivery of a Lease for the Development Site or any Phase of the Project and the execution and delivery of a Rental Regulatory Agreement, as provided for by this Agreement, shall not require further resolution or action by the Board. Notwithstanding the foregoing, any material changes or amendments to any Lease which are not provided for by this Agreement will require the approval of the FTA, the FDOT and the Board, unless the resolution approving this

Agreement specifically delegates to the County Mayor or County Mayor’s designee the authority to negotiate and execute such material amendment (notwithstanding the foregoing, FTA and

FDOT approval may also be required).

Section 1.8 Convertible Property and Leased Property

A. If Phased Development is not called for, until Closing, the County shall remain in possession and control of the entire Development Site, hereinafter referred to as “Convertible Property”, as defined.

B. If a Phased Development of the Development Site is called for, until the Closing of a Phase or portion of the Project, County shall remain in possession and control of all portions of the

Development Site not encumbered by a Lease, which portions of the Development Site are hereinafter also referred to as “Convertible Property”, as defined.

C. As to Convertible Property, the County shall remain in possession and control of all

Convertible Property and retain all rights flowing therefrom as fee simple owner not otherwise encumbered by the Lease.

D. Upon the Closing of any Convertible Property and execution of a Lease upon the

Development Site or portion thereof, such property shall thereafter be referred to as “Leased

Property”, as defined herein.

Section 1.9 Developer’s Pre-Closing Responsibilities

Prior to Closing, the Developer at its sole cost and expense shall have full responsibility for the following (collectively, “Developer’s Pre-Closing Responsibilities”):

A. The performance of studies, inspections, tests, evaluations, remediation, and similar type of work necessary to develop the Project in coordination with DTPW;

B. Obtaining required insurance as set forth in Article 7;

C. Timely satisfying the Closing Conditions as set forth in Section 1.12; and

D. Timely payment of all the Development Fees, Delayed Closing Fees, if applicable, and any and all other amounts due to County.

Section 1.10 Right of Entry

A. Prior to Closing, County hereby grants to Developer, including its officers, employees, contractors, subcontractors, agents, and assigns (collectively, “Developer”) a non-exclusive license for the Term of this Agreement for the right of entry upon Convertible Property for the purposes and uses as set forth herein. No other uses are permitted, no excavations shall be performed, and no Improvements shall be installed or constructed upon Convertible

Property without the County’s express written consent.

B. There shall be no staging, storage, or overnight parking upon Convertible Property, except as expressly approved by the County in writing. Parking shall be allowed only as necessary for the uses set forth herein.

C. Prior to Closing, necessary invasive testing such as core drilling, soil sampling, and subsurface remediation is permitted only upon County’s express written consent, at the

Developer’s sole cost and expense, and under sound and prudent engineering practices.

D The Developer shall provide the County with copies of all work plans, sampling and analytical protocols, laboratory analysis results, reports, test borings, subsurface engineering, surveys, and other available studies obtained in connection with this Development

Agreement and shall correlate the results and its observations with the requirements of the construction and development of the Project Improvements in coordination with DTPW.

E. The Developer shall provide County with reasonable advance notice and shall coordinate with the County for entry on Convertible Property for the performance of any remediation, physical tests, investigations, analysis, and/or studies on Convertible Property.

F. At the County’s election, the County may designate a representative to accompany

Developer while on Convertible Property, in which event the Developer shall not enter on

Convertible Property unless so accompanied. Should such County escort or representative be necessary or appropriate, as determined by the County in its sole and absolute discretion, the Developer shall be solely responsible for paying the charges therefore, upon demand.

G. Pursuant to the terms of this Agreement, Developer may only use Convertible Property in such manner as herein described and shall not interfere with the use or operations of County.

H. Developer shall not permit any mechanics lien or any other lien to be filed upon the

Convertible Property. This requirement shall survive the expiration or early termination of this Agreement.

I. In executing and accepting this Agreement and license, Developer expressly acknowledges and agrees that County has not made and is not making, and Developer is not relying upon any warranties, representations, promises, or statements, except to the extent that the same are expressly set forth in this Agreement.

J. County shall have no liability for any actions, non-actions, or negligence of Developer.

Neither the grant of this license, nor any provision thereof, shall impose upon County any new or additional duty or liability or enlarge any existing duty or liability of County. Nothing in this license shall be deemed to waive County’s immunity as a sovereign entity.

K. Prior to Closing, no modification of the Convertible Property shall be made, including but not limited to, excavation of any of the land, removal of soil or earth from the Development

Site, or drilling or constructing of any well, except as may be required for environmental monitoring and testing purposes and only with the prior written consent of the County.

L. Upon Developer’s completion of any remediation, physical tests, investigations, analyses and/or studies, or any other work Developer shall restore Convertible Property to substantially the same condition as the Convertible Property existed immediately prior to the

Commencement Date of this Agreement unless otherwise expressly approved by the County in writing.

M. In the event this Agreement is terminated and no Lease upon the Convertible Property or portion thereof is executed, Developer shall restore such Convertible Property to substantially the same condition as the Convertible Property existed immediately prior to the

Commencement Date of this Agreement.

N. In any event, if Developer fails to restore the Convertible Property to substantially the same condition as existed immediately prior to the Commencement Date of this Agreement, the

County may, at its option after thirty (30) days written notice to Developer, make or cause to be made, such restoration, whereupon Developer shall promptly pay the County all actual costs and expenses incurred thereof within thirty (30) days notification by County.

Section 1.11 Due Diligence Period

The Developer shall be solely responsible for preparing the Site for development in compliance with all applicable Laws and Ordinances at its sole cost, including but not limited to, any required environmental testing and remediation, locating all utilities existing within the Land, and any environmental closure required by DERM. Developer acknowledges that, based upon the information available prior to award of this Development Agreement, it submitted a proposal to develop the Project in substantially the form described in Schedule 1.4A (the Development Plan) and Schedule 1.4B (the Developer’s Project Schedule). County and Developer acknowledge that the Development Fee and Delayed Closing Fee established in this Agreement are based on the understanding that the Developer shall be able to develop the Project substantially as proposed.

Upon Commencement of this Agreement, the Developer shall, at its sole cost and expense, promptly proceed to conduct studies, testing, and evaluations of the Site. Such studies shall include, but not be limited to, assessments and evaluations of soil and subsurface conditions, utility services, environmental assessments and audits, title review, reports and commitments and surveys of the Development Site. Developer shall be allowed a period of one hundred and eighty (180) days to complete such studies, subject to Unavoidable Delays and extensions of time approved by the County in writing (“Due Diligence Period”). If during that period of time, conditions which could not have been reasonably foreseen, are found to exist which would prevent development of the Project as proposed, or which would add significantly to the cost of the Project, then in addition to any other rights Developer has hereunder, Developer shall have the following rights:

A. The right to terminate this Agreement by giving written notice to the County within one hundred and eighty (180) days of the Commencement of this Agreement. In such event the

Agreement shall terminate fifteen (15) business days following County’s receipt of notice of termination;

B. The right to propose an agreement with the County which provides for remediating the unforeseen conditions such that the Project may be developed substantially as proposed by the

Developer. Such proposal must be submitted to the County in writing within sixty (60) days after discovery and notification by the Developer to the County of the unforeseen conditions, subject to extensions of time approved by the County in writing. The County shall have the right, in its sole discretion, to determine the final form of any such agreement, which shall be in writing, or to reject any such proposal. Failure of the Parties to agree to such agreement within sixty (60) days of the County’s receipt of Developer’s proposal, subject to extensions of time approved by the County in writing, shall result in the termination of this Agreement;

or

C. The right to redesign the Project as may be reasonably required as a result of the unforeseen conditions found and an equitable adjustment in the Development Fee and Delayed Closing

Fee based upon the reduction in the amount and character of the space described in Schedule

1.4A which will be denied to the Developer as a result of the unforeseen conditions. Such an adjustment must be agreed to by the Parties in writing within sixty (60) days after discovery and notification by the Developer to the County of the unforeseen conditions, subject to extensions of time approved by the County in writing. Failure of the Parties to agree to such adjustment within such period of time shall result in the termination of this Agreement.

In the event, that the Agreement is terminated as provided above, the Development Fee shall be abated upon termination of the Agreement and upon written determination by the County that the

Site has been returned to the same condition as existed prior to the Commencement of this

Agreement or a condition acceptable to the County, the entire Security Deposit shall be promptly refunded to the Developer.

In the event that the Agreement is not terminated, Developer shall promptly make the design revisions to the Project necessitated by the unforeseen conditions and submit the revisions to the

County for its approval. Such revisions and adjustments shall not delay the Commencement of

Construction or Completion of Construction for a period longer than one hundred and twenty (120) calendar days, subject to extensions of such period of time granted by the County in writing.

The rights provided by this Section shall not apply to any conditions which are discovered after the Due Diligence Period.

Section 1.12 Conditions Precedent to Lease Commencement and Closing

A. Notwithstanding anything to the contrary in this Development Agreement, the County shall not be obligated to Close and deliver possession of the Development Site, or a portion thereof, until each of the events described in this Section 1.12 shall have timely occurred, subject to the terms and conditions of this Development Agreement, at which time the

County shall deliver at Closing the Lease and possession of the Development Site, or a portion thereof, to the Developer, Developer shall accept and execute the Lease and take possession of the Development Site, or a portion thereof, and Developer’s rights as

Developer under any ground lease shall become effective in conjunction with this

Agreement. Until such time, County shall remain in possession and control of the

Convertible Property, as defined herein, and retain all rights flowing therefrom as fee simple owner of the Convertible Property. A minimum of ten (10) days prior to Closing the following conditions precedent to such Closing and transfer of rights (collectively, “Closing

Conditions”) must be met:

1) Developer shall have completed the DTPW submittal and review process by submitting the Preliminary Plans of the Project or Phase, as applicable, at the appropriate stage of the Project pursuant to Section 4.6 and shall have received DTPW’s written approval of such plans;

2) Developer shall submit to County a copy of the financing commitment that Developer has received from a recognized lending institution, such as a bank, savings bank, savings and loan, pension fund, insurance company, real estate investment trust or other real estate investment entity, (provided such financing commitment is in full force and effect, and Developer has complied with all material terms and conditions thereof) to finance the cost of the construction of the Project or each Phase of the Project, as applicable;

3) Developer shall have contacted all appropriate utilities and verified the location, depth, and nature of all utilities affecting the Development Site or Project Phase and any borders thereupon, and shall have submitted to County plans depicting the same in relation to the proposed improvements for DTPW’s review and written approval;

4) Developer shall have delivered to County a fully executed and delivered copy of the construction contract, together with each of the major contractors, and/or a construction management contract together with the architect and engineers engaged to design the

Project or Project Phase and the Project site plan;

5) Developer shall have obtained, and caused its general contractors, construction managers, architects, and subcontractors to obtain, insurance as required under Article

7 and shall have delivered to County certificates evidencing such insurance naming

County as an additional insured and loss payee;

6) Developer shall have obtained all government approvals;

7) In coordination with DTPW, Developer shall have platted the Development Site, as necessary;

8) Developer shall have applied for and obtained all permits, licenses, easements, property rights and approvals necessary for construction of the Project;

9) Developer shall have obtained any zoning changes or any other land use planning changes necessary to develop the Project;

10) Developer shall have paid all development fees imposed by the County, or any other agency of appropriate jurisdiction, in connection with the development; and

11) Developer shall have completed good faith negotiations with County to finalize the

Lease to be executed at Closing in substantially the form attached hereto as Schedule

1.7A

12) The Developer shall be required to enter into a Rental Regulatory Agreement with

PHCD as shown in Schedule 1.7B.

B. Developer and County agree that all construction and development plans within the

Development Site or such plans for development that may impact any TransitWay or any

County facilities and/or operations (including, but not limited to, plans depicting the existing and intended locations of all utilities and duct banks that connect to, or that otherwise may impact the TransitWay System or any other facilities) shall be subject to the review and approval of DTPW to assure the public safety and the integrity and operation of the

TransitWay System. Precedent to any proposed testing, restoration, staging, excavation, or construction, Developer shall submit to the DTPW Right-of-Way, Utilities and Joint

Development Division through the DTPW Director, or his or her designee, three (3) copies of the final design plans, drawings, and calculations showing the relationship between the proposed activities and the TransitWay System or any County facilities. The drawings and calculations shall have sufficient detail to allow DTPW to determine if such activities are likely to impact the TransitWay System or any County facilities and/or operations and the extent of that impact, if any. The drawings and calculations shall include, if applicable, but not be limited to, the following:

1) Site plan;

2) Site preparation plan;

3) Drainage area maps and calculations;

4) Sheeting and shoring drawings and calculations;

5) Architectural drawings for all underground levels through the top floor;

6) Sections showing foundations in relation to County structures;

7) Structural drawings;

8) Pertinent drawings detailing possible impacts to County facilities (including but not limited to any utilities that may impact County facilities);

9) Geotechnical reports;

10) Settlement monitoring, mitigation and remediation plan, if applicable; and

11) Proposed sequence of activities.

C. Any such proposed testing, restoration, staging, excavation, or construction or any other work may commence only after DTPW has completed its review and the DTPW Director or designee has issued written approval of the plans, drawings, and calculations.

Notwithstanding anything herein, all proposed construction shall be in compliance with the latest edition of the Miami-Dade Transit Construction Safety Manual or its replacement, as applicable.

D. County shall review plans, drawings, and calculations within a reasonable period of time;

however, such review periods may depend upon the volume, complexity, and potential impact on the TransitWay System and operations or any County facilities and operations.

County reserves the right at all times to disapprove of plans, drawings, and calculations in whole or in part if County, in its sole discretion, determines that any County operations or facilities and/or other public or private facilities or operations may be unacceptably impacted and/or to request additional information. If the County, in its sole discretion, determines that activities undertaken or authorized by the Developer or planned to be undertaken or authorized by the Developer, may impact the TransitWay System, any County facilities or operations, or other public or private facilities or operations, the County may require the

Developer to submit a plan to monitor, mitigate, and remediate any such impacts. The plan may call for the alteration, relocation, or replacement of County and/or private facilities, either temporary or permanent, and with measures required to maintain County and/or private operations including the presence of County employees or representatives to monitor and coordinate such activities, if required. The plan must be approved by the County in writing prior to the commencement of any such activities and Developer shall reimburse

County for all such actual costs incurred by County upon demand, including but not limited to for relocation, alteration, repairs, and the use of County employees and/or representatives required to monitor and coordinate such activities. If directed by the County, the Developer must immediately mitigate all such impacts as specified by the County and Developer shall immediately remediate all damage or impacts caused by activities performed or authorized by the Developer to the satisfaction of the County, at Developer’s sole cost and expense.

E. If such activities cause disruption or interruption to normal County operations, the Developer shall pay all costs incurred by the County in providing replacement and/or alternative services (irrespective of whether such costs accrue from the County or from a third party).

Additionally, the County shall have the right to slow or stop any activities that the County, in its sole discretion, determines to be potentially hazardous to the TransitWay System or

County facilities, utilities, or operations, or to Miami-Dade County employees, patrons, or the public and to require the Developer to implement appropriate safety measures as deemed necessary by the County at the sole cost of the Developer. County shall not incur any expense as a result of such actions.

Section 1.13 Performance and Payment Bonds

A minimum of ten (10) days before Developer commences any testing or construction work related to any portion of the Project or before any materials are purchased from a supplier, Developer shall execute and deliver to County and record in the public records of the County, a payment and performance bond equal to the total cost of the work or items purchased in compliance with applicable laws including the terms of Section 255.05 of the Florida Statutes, including but not limited to, the requirements of Sections 255.05(1) (a) and (c), Section 255.05(3) and Section

255.05(6), and shall name the County and Developer beneficiaries thereof as joint obligees.

As an alternative to the above-described payment and performance bond, the Developer may provide security to the County (Alternate Security) in the following manner:

A. Provide the County with a certified check that County may deposit into a County-controlled bank account (escrow account) or an irrevocable letter of credit in a form and in an amount that is acceptable to the County to remain in place until evidence reasonably satisfactory to the County is submitted to demonstrate that all contractors and material suppliers performing any work on and/or supplying any materials for the Project/Phase have been paid in full and a Certificate of Occupancy has been issued for the Project/Phase; and

B. Require that each prime contractor hired by Developer to perform work and/or make improvements on the Project/Phase to provide a performance bond with a surety insurer authorized to do business in the State of Florida as a surety in an amount not less than one hundred percent (100%) of its respective contract in a form acceptable to the County to insure that its construction work shall be completed by the contractor or, on its default, its surety shall name the County as an additional obligee and shall meet the specifications set forth below; and

C. Require each prime contractor hired by Developer to perform work and/or make improvements on the Project/Phase to provide a payment bond with a surety insurer authorized to do business in the State of Florida as a surety in an amount not less than one hundred percent

(100%) of its respective contract in a form acceptable to the County to secure the completion of the Project/Phase free from all liens and claims of sub-contractors, mechanics, laborers, and materialmen and shall name the County as an additional obligee and payee and shall meet the specifications set forth below; and

D. The Alternative Security and bonds required above shall comply with the requirements of

Section 255.05 of the Florida Statutes.

If the Developer provides the Alternative Security, Developer shall also comply with the following obligations:

1. Obtain a conditional release of lien from each of its prime contractor(s) at the time each progress payment is made;

2. Obtain an unconditional release of lien form each of its prime contractor(s) within five (5) business days after payment is made; and in the event of Developer’s contractor(s) claim non-payment(s) and/or fail to timely provide unconditional releases of lien within the timeframe stipulated, County reserves the right but not the obligation to:

a. Reduce the amount(s) in question from the cash deposit(s) or security posted until the claim(s) is/are liquidated; or

b. Appropriate funds for such payment(s) from any cash deposit(s) of security posted and make payment(s) directly to claimant(s).

In either case, the Developer shall, within ten (10) business days of notification by County, deposit an amount equal to the reduced/disbursed amount in the County’s escrow account or increase the irrevocable letter of credit so as to replenish the original amount of the cash deposit(s) or security posted.

The Developer shall not allow any mechanics liens or materialman’s liens, or liens, judgements, or encumbrances of any kind to remain on or to cloud the title of County’s fee simple interest in the Land and shall indemnify the County for any costs, expenses, or damages County incurs by reason thereof, in the event that any such encumbrance is not removed as a lien on County’s fee simple interest in the Land within thirty (30) days after Developer receives written notice from

County demanding removal of such encumbrance, in which case such encumbrance shall be deemed an Event of Default hereunder. Developer shall promptly take all steps required to promptly remove and otherwise resolve all such encumbrances of which Developer has been given actual notice.

ARTICLE 2

Definition of Certain Terms

The terms set forth below, when used in this Agreement, shall be defined as follows:

A. ADA shall mean the Americans with Disabilities Act, as amended from time to time.

B. Additional Fees shall have the meaning ascribed to such term in Section 3.9.

C. Additional Rent shall mean all costs and expenses owed by Developer to County under a

Lease other than Initial Rent, Annual Rent, and Delayed Completion Rent. Developer shall pay to County Additional Rent, as applicable, in accordance with the terms of the Lease(s) resulting from this Agreement attached hereto as Schedule 1.7A.

D. Affiliate shall mean any entity that directly or indirectly owns and controls, is owned and controlled by, or is under common ownership and control with the designated entity, whether such control is through contract, equity interest, management authority or otherwise. For the avoidance of doubt, the transfer of ownership from Developer to an

Affiliate shall not be used as a mechanism to avoid the payment of the Transfer Fee to the

County under Section 3.8 herein.

E.

F. Intentionally omitted.

G. Annual Rent shall mean the rent due under the Lease for the Project/Phase upon

Construction Completion or upon the date set forth in the Project Schedule. Developer shall pay to County Annual Rent, as applicable, in accordance with the terms of the Lease(s) resulting from this Agreement attached hereto as Schedule 1.7A in all material respects.

H. Board shall mean the Board of County Commissioners of Miami-Dade County, Florida.

I. BOMA Standard shall mean the Standard Method of Floor Measurement for Office

Buildings, as most recently published by the Building Owners and Managers Association

International (BOMA), which shall be used to compute square footage of all office and retail space.

J. Certificate of Occupancy shall mean the certificate issued by the person or agency authorized to issue a certificate of occupancy or certificate of completion, as applicable, evidencing that the applicable Improvement(s) is (are) ready for occupancy or use in accordance with applicable Law or Ordinance.

K. Closing shall mean the execution and delivery of the Lease(s) for the Project or Project

Phase, payment of applicable portion of Initial Rent, and the performance of such other obligations as may be necessary in connection therewith and/or otherwise in connection with the Project at which time the County shall have delivered the Lease to Developer and

Developer shall have taken possession of the Leased Property and the Lease provisions shall become effective in accordance with this Development Agreement.

L. Closing Date shall mean the actual date Closing occurred for the overall Project or for each

Phase of the Project, on a Phase-by-Phase basis, upon satisfaction of the Closing

Conditions.

M. Code shall mean the Code of Ordinances of Miami-Dade County, as amended from time to time.

N. Commencement Date shall mean the first day of the month following execution of the

Development Agreement by both the County and Developer and deposit of the Security

Deposit.

O. Commencement of Construction, Construction Commencement and "commenced" when used in connection with construction of a Phase or the Project, as the case may be, shall mean the earlier of the filing of the notice of commencement under Florida Statutes Section

713.13 or the visible start of work on the site of a Phase or the Project. In order to meet the definition of "Commencement of Construction" or commenced herein, such filing of notice or visible start of work must occur after Developer has received building permit(s) necessary to begin construction for the Project or particular Phase of the Project on which construction is proposed to commence.

P. Completion of Construction or Construction Completion shall mean, for the Project or any

Phase, the date that a Certificate of Occupancy is issued for that Phase or Project.

Q. Construction Plans shall consist of final design plans for particular improvements of the

Project or a Phase as approved by Miami-Dade County, the drawings and specifications for which are in the format with sufficient detail as required to obtain building permits for such Improvements and as further described in Section 4.6.

R. Convertible Property shall mean any portion of the Development Site not encumbered by a Lease.

S. County or DTPW shall mean, on the Commencement Date, Miami-Dade County, a political subdivision of the State of Florida, through the Miami-Dade Department of

Transportation and Public Works. Thereafter, “County” shall mean the owner at the time in question of County’s interest in the Development Site.

T. Delayed Closing Fee shall have the meaning ascribed to such term in Section 3.3 herein.

U. Developer shall mean, on the Commencement Date, __________________, a

___________________. Thereafter, "Developer" shall mean the owner(s) at the time in question of the Developer's interest under this Agreement, so that if Developer, or any successor to its interest hereunder ceases to have any interest in this Agreement or any

Lease hereby created, whether by reason of assignment, transfer, or sale of Developer's interest hereunder, the assignor, transferor, or seller shall, subject to the provisions of

Section 3.8 and Article 14, be released from and relieved of all leases, agreements, covenants, and obligations of Developer hereunder to be performed after the date of such assignment, transfer, or sale. Nothing herein shall be construed to relieve Developer from any liability or damages arising from actions or omissions occurring or agreements, covenants, and obligations required to be performed prior to the date of any such assignment, transfer, or sale of Developer's interest hereunder. Notwithstanding the foregoing, Developer shall remain liable for the representations and warranties as described in Article 20.

V. Developer Default shall have the meaning ascribed to such term in Section 16.1.

W. Development Agreement or Agreement shall mean this Agreement and all amendments, supplements, addenda, or renewals thereof, if any.

X. Development Fee or Fee shall have the meaning ascribed to such terms in Section 3.2 herein.

Y. Development Plan shall mean the plan for the Development Site as shown in Schedule

1.4A.

Z. Development Site shall mean the real property described in Schedule 1.1 attached hereto and made a part hereof, which Developer pursuant hereto has the right and obligation to develop in accordance with the Development Plan, which shall be subject to the provisions of this Agreement;

RESERVING UNTO COUNTY, subject to the remaining provisions of this Agreement, the following:

1. County reserves the right to exclude existing or proposed streets, sidewalks, and easements from the Development Site to provide and accommodate access to and from the entire Project or for all Project Phases, to the TransitWay System, any County facilities, any government agency property or facility, or any other entities’ or persons’ property or facility(ies); and

2. IT BEING UNDERSTOOD between the Parties hereto that no portion of the TransitWay facilities, and/or systems are part of this Agreement or intended to be leased pursuant to this Agreement to Developer and that all portions or areas of the TransitWay facilities and/or systems are expressly

EXCEPTED AND RESERVED unto County, except to the extent that parts thereof are leased upon Closing or rights in respect thereof are expressly granted to Developer as herein provided.

AA. Event(s) of Default shall have the meaning ascribed to such term in Article 16 herein.

BB. Fair Market Value shall be that sum which, considering all of the circumstances, would be arrived at by good faith, fair, arm's-length negotiations between an owner willing to sell and an independent third-party purchaser willing to buy, neither being under any pressure.

CC. Final Design Plans shall mean the final Plans and Specifications submitted to the County when design is one hundred percent (100%) complete.

DD. Financing Agreement shall mean any loan or financing agreement, other than a Leasehold

Mortgage, for the financing of the Project/Phase, leasehold interest, Development Site, or

Improvements thereon including a mezzanine financing agreement or preferred equity loan.

EE. Impositions shall mean all ad valorem taxes, special assessments, and all other property assessments, use taxes, sales taxes, rent and occupancy taxes, taxes on personal property, all utilities, charges, all fines, fees, penalties, interest, and other governmental charges, in each case of any kind or nature whatsoever, general or special, foreseen or unforeseen, ordinary or extraordinary and assessments levied, charged, confirmed, imposed, or assessed with respect to, or become payable out of, or become a lien upon the Development

Site, Improvements, personal property, and the activities conducted thereon or therein.

FF. Improvements shall mean all enhancements erected and installed on, above or below the surface of the Development Site or a portion thereof in accordance with Article 4 below as a part of the Project on the Development Site (and all equipment and systems, located or to be located therein, and which are intended to remain attached or annexed, including any replacements, additions, and substitutes thereof) including but not limited to, the buildings, structures, parking areas, utilities, utility lines.