A recent New York Times article described the increased presence of New York developers in the South Florida condominium market. The fact is that Miami real estate market has always been a seductive one for out of state developers, and the upside in the development opportunities in the South Florida real estate market simply continues to proliferate. Best of all, more interest in South Florida means more opportunities for local developers to partner with or enter into joint ventures with those venturing into this market.
As South Florida developers look to partner with real estate firms and investors to develop projects in South Florida, South Florida developers should pay particular attention to the removal provisions of the joint venture agreements or management agreements entered into with these firms and investors. Typically, the removal of the developer should be limited to “cause,” such as the developer committing some kind of “bad act” or materially breaching an agreement. Developers should be cautious about agreeing to any “performance standards” or similar removal triggers, which can allow a developer to be removed from the deal through no fault of its own. In connection with a breach of the agreement, developers should negotiate materiality standards and notice and cure rights. In addition, developers should negotiate the right to cure any default caused by any employee by firing that employee and having the opportunity to cure any damage caused by the employee.
Finally, the developer should make sure to have its removal conditioned on the developer being released from any guarantees related to the project or, if the release cannot be obtained, being indemnified from a credit-worthy affiliate of the joint venture partner for such guarantees. The developer should not continue to be on the hook for the project guarantees after the developer is no longer involved with the management of the project.
The court held that, in making the designation, the City failed to properly consider the church’s religious significance. Miami’s Historic Preservation Ordinance “expressly excludes properties owned by religious institutions or used for religious purposes unless the religious property derives its primary significance from its architecture, artistic distinction or historical importance rather than its religious purpose. This criterion requires a comparison of the site’s religious importance.” Diocese of Newton Melkite Church v. City of Miami, 2014 WL 4730075 (Fla. Cir. Ct. Sept. 16, 2014), at *3. Writing for the court, Judge Miguel de la O wrote, “[t]he record before us is devoid of any comparative analysis of St. Jude’s religious importance versus its historical and architectural importance. . . . This failure is fatal under the [Historic Preservation] Ordinance and compels us to conclude that the City did not follow the essential requirements of the law.”
Given the fact that the phased permit is a permit that is issued pending (not in lieu of) an official building permit, the holder of the phased permit proceeds at his or her own risk when beginning construction upon receipt of the phased permit. Thus, applicants are required to execute a Hold Harmless letter/form reflecting that they understand the risk and relieve the municipality of all liability resulting from or in connection with the phased permit. Applications proceed with the understanding that it is possible that in order to receive the official building permit, portions or all of the construction that has been completed under the phased permit would need to be modified or removed. Applicants must cautiously weigh the risks when deciding to begin major construction using a phased permit.
In that lawsuit, the Association brought claims for injunctive and declaratory relief, unjust enrichment, and breach of contract, claiming, among other things, that the enjoyment of the Club’s amenities (a restaurant and lounge, private banquet room, health spa, swimming pool and tennis courts) was limited to private members of Fair Isle, and seeking an order prohibiting the defendants from allowing unauthorized members of the public to use the Club’s amenities. The Association also maintained that it was unfair and unreasonable to require the condo owners to bear all the costs of maintenance, management and operation of Fair Isle’s facilities, amenities and common areas (including the bridge that spans Biscayne Bay and connects Miami with Grove Isle’s private island resort), even though these areas are also used by other Fair Isle guests. Therefore, the Association sought to recover the value of its maintenance, management and operation payments over the years.