Res No 066-12-13623RESOLUTION No. 66 -12 -13623
A Resolution relating to the review and acceptance of the Annual Report of
the 64 Development Corporation on their proposed mixed use development
project located at 5966 -70 S. Dixie Highway.
WHEREAS, the City Commission at its June 5, 2007 meeting approved Resolution
No. 97 -07 -12482 allowing 64 Development Corporation to construct a mixed use (office 1 retail)
four story building with 38,233 square feet of commercial office and 11,052 square feet of retail
space located at 5966 -70 S. Dixie Highway in the SR (HD -OV) zoning district; and
WHEREAS, the City Commission approved a Development Agreement for the project
on March 18,2008 via Resolution No. 41 -08- 12638. which agreement was fully executed and
was recorded in the County registry of deeds on April 9, 2008 as required by Section 35 of the 19
Agreement; and
WHEREAS, the City Commission approved a Right of Way Maintenance Agreement for
the project on May 20, 2008 via Resolution No. 80 -08 -12677 which agreement sets 23 forth
drainage and street improvements required for the project; and
WHEREAS, the Development Agreement includes the requirement (Section 27,) that the
developer submit an annual report 30 days before the anniversary of the effective date which
report is a status report showing that obligations have been met and that there has been
compliance with the provisions of the Agreement.; and
WHEREAS, the 2012 Annual report was submitted to the City on March 01, 2012 from
Marcelo Fernandes, Vice President of the 64 Development Corporation, said report concluding
that all of the obligations set forth in the Development Agreement shall be met and that due to
economic and market considerations the project has not been completed; and
WHEREAS, the annual report in accordance with the Development Agreement must be
reviewed by the City Commission at a public meeting and the City Commission may accept the
report or if there is a finding by the Commission that there has been a failure to comply with the
terms of the Development Agreement, the Agreement may be revoked or modified by the City.
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA:
Section 1. The 2012 Annual Report submitted by the 64 Development Corporation on
their proposed mixed use project located at 5966 -70 S. Dixie Highway as required by 46 Section
27 of the Development Agreement is hereby accepted, with the exception as to the assignment of
the Development Agreement. The Development Agreement Assignment will be addressed
separately at the next Commission meeting by a resolution accepting the assignment.
Section 2. This resolution shall be effective immediately upon being approved.
Page 1 of 2
Res. No. 66 -12 -13623
PASSED AND ADOPTED this 201h day of March, 2012.
ATTEST:
CITY CLERK
ORM,
APPROVED:
MAY 6R
COMMISSION VOTE: 5 -0
Mayor Stoddard: Yea
Vice Mayor Liebman: Yea
Commissioner Newman: Yea
Commissioner Harris: Yea
Commissioner Welsh: Yea
Page 2 of 2
South Miami
AI6Anienca Cily
CITY OF SOUTH MIAMI 1 1111. I
OFFICE OF THE CITY MANAGER
INTER - OFFICE MEMORANDUM 2001
To: The Honorable Mayor Stoddard and Members of the City Commission
Via: Hector Mirabile, Ph.D., City Manager
From: Christopher Brimo, AICP
Planning Director
Date: March 20, 2012 ITEM NO,
Sum - —
A Resolution relating to the review and acceptance of the Annual Report of the 64 Development
Corporation on their proposed mixed use development project located at 5966 -70 S. Dixie Highway
PROJECT SUMMARY
The City Commission at its June 5, 2007 meeting approved Resolution No. 97 -07 -12482 allowing 64
Development Corporation to construct a mixed use building on property in the SR (HD -OV) zoning
district. The vacant site at 5966 -70 South Dixie Highway contains 31,523 square feet and has sides
facing three streets. The project is a mixed use (office / retail) four story building with an integrated
parking structure. There will be 38,233 square feet of commercial office and 11,052 square feet of
retail space. The applicant received approval for three special exceptions to modify regulations
pertaining to lot coverage, building size, and location of curb cuts.
DEVELOPMENT AGREEMENT
Following a period of negotiations the developer and the City agreed to place covenants, conditions
and terms into an independent Development Agreement which would be in effect for 10 years, which
allows all zoning (special exceptions) to continue. The City Commission approved the Agreement on
March 18, 2008 via Resolution No. 41 -08 -12638 (attached). The agreement was duly executed and
recorded in the County registry of deeds on April 9, 2008 as required by Section 35 of the Agreement.
The Development Agreement is attached. In addition to the Development Agreement a supplemental
Right of Way Maintenance Agreement for the same project was also approved by the City
Commission on May 20, 2008 via Resolution No. 80 -08- 12677. This agreement sets forth drainage
and street improvements required for the project.
ANNUAL REPORT REQUIREMENT
The Development Agreement includes a requirement that the developer submit an annual report on or
before the anniversary of the effective date (March 18, 2008) of the Development Agreement (Section
27). It is a status report showing that obligations have been met and that there has been compliance
with the provisions of the Agreement. The report must be reviewed by the City Commission at a
public meeting. The City Commission may accept the report or if there is a finding by the
Commission that there has been a failure to comply with the terms of the Development Agreement,
the Agreement may be revoked or modified by the City.
W
2012 ANNUAL REPORT
The 2012 Annual Report was submitted to the City on March 1, 2012. The developer indicates in that
construction ceased in May, 2009 due to the lender's financial problems. The developer further states
that negotiations are underway in order to resume construction. As of March 14, 2012 the Developer
indicated that negotiations with a new lender are underway, and the all indications are that the project
will be back on track, provided Item 15 of the Agreement dealing with "Assignment" can be resolved
by the Developer. The submitted Annual Report section (b) states that the construction has recently
resumed and activity at the site is beginning to increase daily, with completion estimated within the
next 12 to 18 months. Permits remain active on this project.
Attached is a resolution concerning the 2012 Annual Report.
Attachments:
Draft Resolution
Communication from Marcelo Fernandez, received March 1, 2012
Annual Report for 2012
Resolution No. 41- 08-12638 and executed Development Agreement
Z: I Comm ltemsI2012U -20 -12164 Development Corp. Annual ReporA64 Development Project Annual Rep (1011) CM report.doc
64 DEVELOPMENT CORP.
February 29, 2012
City of South Miami
Zoning Director
Christopher Brimo
6130 Sunset Drive
South Miami, FL 33143
Re: Resolution NO.: 41 -08- 12638; 5966 S. Dixie Highway
Dear Mr. Brimo,
.;r
,'W 0 1 2012
planning end 70ning
DaOariment
As per the requirements set forth in the above referenced Resolution, enclosed
please find the annual report updating you on the status of the project located at
5966 S. Dixie Highway.
Please contact me if you have any questions regarding this report.
Since
Marc Fermi
Vice-Piesident
7440 SW 50TH TERRACE, SUITE 110 MIAMI, FLORIDA • 33155
PHONE: 305 -663 -1293 • FAX: 786 -363 -4336
WEB SITE: OXFORD UNIVERSAL.COM
UPDATE — FEBRUARY 2012
DEVELOPMENT AGREEMENT
BETWEEN
THE CITY OF SOUTH MIAMI FLORIDA
AND 64 DEVELOPMENT CORPORATION
An Item by Item review is detailed below as requested per section 27 of the
Agreement:
Development Conditions as outlined in Section 8 of the Contract:
(a) The Company shall meet all applicable building codes, land
development regulations, ordinances and other laws.
UPDATE :COMPLETED Permits have ;been attained from'the
fellovving City of South, Miami departments .
Building and Zoning
Public Works
Miami Dade DERM
Miami Dade WASA
All permits meet the applicable codes and ordinances
All ,permits are in good standing
(b) The Company shall adhere to the requirements of all permits for
secured for over 40% of the project with many more
prospective tenants showing Ain . rest Estimated completion,is
expected within the n' .12 to 78'months14e.last condition
remaining for;the Developer'to close the A I'and have
Page 1 of 7
immediate access to the .new fundirig, s the right.to assign all
development rights of the project to'the new Lender. The
Lender mt be guarnteed the ' athe rights o s a e I..
complete the.projectwthout'any new conditionsattached The
Developer'is'requestmg; an assignment oft . .development
agreement;to the new lender-that is-an entity owned'and
controlled by;; the; Munilla':Famllytyhose corporate.
headquarters;are located m the City, of,SouthMiami.
(c) The Company shall develop the project in conformance with the
parameters set forth in this agreement.
UPDATE INPROGRESS: Constructon.of`the project „will
progress:. exactly as_per the;approved master permit and the
terms, and, conditions of;this'agreement
(d) The Project shall be consistent with the site plan submitted
with the special exceptions incorporated herein.
UPDATE: IN.PROGR ES, S Construction .of:the:project;will.
progress exactly as pe.r the approved .master permit and,the.
terms and conditions,of' this-agreem.ent.
(e) The Company shall provide the Department of Planning with a
temporary parking plan, including an operational plan, which
addresses construction employee parking during the construction
period, said plan shall include an enforcement plan and shall be
subject to the review and approval by the planning director prior to
the issuance of any building permits and shall be enforced during
construction activity.
UPDATE: COMPLETED..", . De
— A tailed constcuction`staging, plan
has .been.,,submitted to the City of'South Miami and:is currently
being adhered to:
Page 2 of 7
f) All conditions imposed by the City Commission as part of its
approvals of the special exceptions referenced herein shall be
incorporated in this Development Agreement.
UPDATE: COMPLETED — All conditions established by the City
Commission have been incorporated into this Agreement and
are i w being red; to;
g) The Company shall fund and implement traffic calming
improvements along streets abutting the property. These
improvements shall be set forth in detail in the agreement with the
City referenced in paragraph 5 herein.
UPDATE IN PROCESS , A perrrtWlhk s lie n attained from the
City of South M"ami Public Works departmen# which �detaiI ;all
the traffic calmin im �Co'
g p Vements as requested:'
h) The Company shall cooperate with the City and implement the
conditions for the development of the Project as set forth in the
conditions of the special exception approvals as well as in this
agreement.
UPDATE INRROCESS: All permits attained have been �n,,full
compliance wrth all the approved. specia_ I; exceptions; and
c.onditions.m: his"agreement
i) The Company shall present for Department of Planning
approval a landscape plan for the Project. No building permit
shall be issued to the Company for the development of the
Property prior to the City approval of the landscape plan. All
proposed landscaping within the right -of -way abutting the
property shall be submitted to the Public Works Department
for review. The Company agrees to maintain the
landscaping and accompany irrigation in perpetuity.
Page 3 of 7
UPDATE: IN PROCESS '- A complete,`landscape plan' has been
submitted and a permit has beerrattained for the;landscaping
of the'-project, Landscaping improvements have not yet begun.
j) The Company shall use brick or concrete pavers along the
Property's frontage along US -1.
UPDATE. IN °PROCESS Permits havebeen attained to' include
a decorative concrete design: alon,g,the:frontage; of the project
The'construction of this item, has n,ot y _f'bpg
k) The building's parking shall be available to the general public for
public parking during the evenings and weekends subject to the
Company's right to designate the hours of operation and parking
rates.
UPDATE: This'will be;.implemented upon_ completion ofthe
project.
1) The Company shall develop an incentive program to promote the
use of Metro -rail by all employees during peak hours.
UPDATE `This will,be mplemented -upon- completion of the
project.
m) The Company in cooperation with the South Miami departments
of Public Works and Planning shall erect directional signs and
traffic directional structures in the exits of the parking garage and
within the public right -of -way to guide exiting traffic away from
abutting neighborhood roads to US -1 during peak hours.
UPDATE I,N PROCESS.: A permit has been 1. ttained front'the
City of South MamiPublic'Works departmentwhch.details all
these directional elemenis'as requested `',Construction under
this permit.-has begun.
n) The Company shall coordinate with the South Florida Commuter
Services to promote carpooling.
UPDATE: This will be implementedl upon completion of the
project.
Page 4 of 7
List of Current Permits that have been attained:
Permit Type
Issued By
Drainage
FDOT
Landscaping on State Road Right of Way
FDOT
Temp Fence
FDOT
Access
FDOT
DERM Class V Dewatering
DERM
New Office Building Permit
City of S. Miami
Tree Removal Permit
City of S. Miami
Temp Electrical
City of S. Miami
Plumbing Permit
City of S. Miami
Temp. Portable Bathroom (Friendly John)
City of S. Miami
Water Main Extension Permit
Fl. Dept. of Health
Demolition Permit
City of S. Miami
List of status of Current Permits:
Water Main Extension — work completed at site. Finalizing permit
DERM — Class V dewatering — work completed and permit closed
New Office Building Permit — Active — extension approved by Building Dept
Temp Electrical —Active
Plumbing Permit —Active
Temp Port. Toilet — Closed
Demolition Permit — work completed — permit closed
Page 5 of 7
Photograph of the site:
This photograph was taken immediately upon construction activity ceased
at the site. Since then the crane and barricades have been removed. Along SW
74 Street the asphalt has been patched where work was completed and the
striping has been restored to its original condition.
Page 6 of 7
Photos of part of the work Completed at the basement level of
the project in February 2012
Page 7 of 7
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REICORDED 04/09,12008 13:30 -43
HARVEY RUVIK'i GLERK OF COURT' MIAMI -DARE C- OUNT'rr FLORIDA
RESOLUTION NO. 41-08-12638
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
SOUTH MIAMI, FLORIDA ADOPTING AN AGREEMENT BETWEEN THE CITY OF
SOUTH MIAMI AND 64 DEVELOPMENT CORPORATION SETTING FORTH
COVENANTS, TERMS AND CONDITIONS APPLICABLE TO A PROPOSED FOUR
STORY MIXED USE BUILDING TO BE CONSTRUCTED ON PROPERTY LOCATED
AT 5966 -70 S.DLYIE HIGHWAY; AND PROVIDING AN EFFECTIVE DATE
WHEREAS, in 2006 the 64 Development Corporation received approval to. construct a
building on property in the SR (HD =OV) zoning.district at 5966 -70 S. Dixie Highway; said project to be a
mixed use (office /, retail) four story building with an integrated parking structure containing 38,233
square feet of commercial office and 11,052 square feet of retail space; and
WHEREAS, the City Commission at its June 5, 2007 meeting adopted Resolution No. 97 -07-
12482 approving a site plan, three special exceptions and a condition that an agreement be implemented
setting forth all of the responsibilities and commitments by both the City and the developer pertaining to
the project; and
WHEREAS, a working agreement between the City and 64 Development Corporation has been
prepared; and
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND THE CITY
COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA:
Section 1 That an Agreement, attached as Exhibit "A" and dated March 18, 2008 between' the City of
South Miami, Florida, and the 64 Development Corporation pertaining to the ,construction of a building
on property in the SR (HD -OV) zoning district at 5966 -70 S. Dixie Highway; 'said .project to be a mixed
use (office / retail) four story building with an integrated parking structure containing 38,233 square feet
of commercial office and 11,052 square feet of retail space is hereby approved.
Section 2. This resolution shall be effective immediately after the adoption hereof.
PASSED AND ADOPTED this 18, day of March 2008
ATTEST.
CLERK
READ AND APPROVED AS TO FORM:
CITY ATTORNEY
Attachment: Exhibit "A" Agreement
APPROVED:
MAYOR
Commissio ote:
Mayor.Feliu:
Vice Mayo�Beasley ,
Commissioner Wiscombe:
Commissioner Palmer:
Commissioner Beckman:
X:1Comm ltems12008V -18 -08 0evelopment Agreement 64 Devel Corp.Resol doc
ME$
Yea
Yea
Yea
Yea
yea
EXHIBIT "A"r
AGREEMENT
BETWEEN THE CITY OF SOUTH MIAMI, FLORIDA
AND 64 DEVELOPMENT CORPORATION
THIS AGREEMENT ( "Agreement ") is made as of March 1�,
2008 by. and between THE CITY OF SOUTH MIAMI, FLORIDA a
municipal corporation ( "City ") and 64 DEVELOPMENT
CORPORATION ("Company") or its assignee.
RECITALS
WHEREAS, the city commission of. the City of South
Miami desires to insure that the development of property
within the City of South Miami conforms with the city's
comprehensive plan and land development regulations and
that said development is in the best interests of the
citizens of South Miami and therefore permits the
consideration and the adoption of this agreement; and
WHEREAS, the Company owns approximately a parcel of
property approximately 31,523 square feet in size, zoned
SR(HD -OV), located at 5966 -70 S. Dixie Highway described in
Exhibit "A," (the "Property "); and
WHEREAS, the Company desires to construct a mixed use
development encompassing a four story building for retail
and office use as described in Exhibit "B," (the
"Project ") in the Hometown District Overlay Zone within the
City of South Miami; and
WHEREAS the Company submitted Application 'No. PB -06-
033 requesting approval for three special exceptions for lot
coverage, maximum building square footage, and curb cuts
necessary to construct the Project; and
Page 1 of 16
WHEREAS, the City Commission has determined that in
order to mitigate possible impacts of the proposed project
on the surrounding neighborhood that the Company shall
comply with the conditions set forth in this Agreement; and
WHEREAS, the Company and the City of South Miami
Public Works Department will enter into an agreement to
address in detail the Department related issues.
NOW, THEREFORE, in consideration of the above recitals
and the following covenants, terms and conditions the
receipt and sufficiency of which are expressly
acknowledged, the City and Company covenant and agree as
follows:
1. Incorporation of Recitals. The recitals set- forth
above are true and correct and are incorporated herein by
this reference.
2. Property. The Company owns the property as
described in Exhibit "A ". This property shall be deemed to
be one unified parcel and is subject to the unity of title
pursuant to -the requirements of sections 20.7.30 and 20-
5.14 of the City Land Development Code (the "LDC ") attached
hereto as Exhibit "C ".
3. Effective Date; Duration of Agreement. This
agreement shall become effective upon execution and shall
be recorded in accordance with paragraph 35 of this
Agreement. ' The maximum period for this Agreement permitted
under Florida Statute 163.3229 shall be ten (10) years from
the effective date unless extended by mutual.consent of all
Page 2 of 16
legal and equitable owners of the Property and the city
upon approval at a public hearing.
4. Use of Property. The property described in Exhibit
"A" is to be utilized for the project described in Exhibit
"B ": a mixed use office and retail project. The proposed
building shall not exceed four stories or a maximum height
of fifty six feet.—
The overall development of the property shall be
conducted in accordance with the approved site plan on file
at the City.
5. Public Facilities Serving the Project. In order to
enhance public facilities in the City of South Miami, and
to address the impacts of the proposed development on the
adjoining neighborhood, the Company agrees to enter into a
subsequent agreement with the City to provide improvements
in compliance with Section 20 -4.1 of the LDC, including
roadway, sanitary sewer and solid waste, prior to the
issuance of a certificate of occupancy. However, the City
may issue a temporary certificate of occupancy to the
Company if the Company has begun the work at issue and
posts a bond to insure the completion of the work.
6. Concurrency. The City of South Miami has determined
that the Company's performance under the Agreement
satisfies the conc.urrency requirements, as delineated in
Section 20 -4.1, City Code. By execution of this Agreement,
the City acknowledges that the application for site plan
approval meets all concurrency regulations enumerated in
Section 20 -4.1 of the City Code, and that the site plan
application and this Agreement are consistent with the
City's Comprehensive Plan and Land Development Regulations.
Page 3. of 16
7. Permits. The permits preliminarily identified as
necessary for development of the project are described as
follows:
(a) Special Exception to permit 26,833 square
feet floot area at the ground floor.
(b) Special Exception to provide 85% +/- lot
coverage.
(c) Special Exception to provide an additional
curb cut along the property's frontage on- S.W.
5 9th Court.
8. Development Conditions. The following conditions
shall apply to the development of the project:
(a) The Company shall meet all applicable
building codes, land development regulations,
ordinances and other laws.
(b) The Company shall adhere to the requirements
of all permits for the project.
(c) The Company shall develop the project in
conformance with the parameters set forth in this
agreement.
(d) The :Project shall be consistent with the site
plan submitted with the special exceptions
incorporated - herein.
(e) The Company shall provide the Department of
Planning with a temporary parking plan, including
an operational plan, which addresses construction
employee parking during the construction period,
said plan shall include an enforcement plan and
shall be subject to the review and approval by
the planning director prior to the issuance of
Page 4 of 16
any building permits and shall be enforced during
construction activity.
f) All conditions imposed by the City Commission
as part of its approvals of the special
exceptions referenced herein shall be
incorporated in this Agreement.
g) The Company shall fund - and implement• traffic
calming improvements along streets abutting the
property. These improvements shall be set forth
in detail in the agreement with the City
referenced in paragraph 5 herein.
h) The Company shall cooperate with the City and
implement the conditions for the development of
the Project as set forth in the conditions of the
special exception approvals as well as this
agreement.
i) The Company shall present for Department of
Planning approval a landscape plan for the
Project. No building permit' shall be issued to
the Company for the development of the Property
prior to the City approval of the landscape plan.
All proposed landscaping within. the right -of -way
abutting the property shall be submitted' to the
Public Works Department for review.. The Company
and its successors agree to maintain the
landscaping and accompanying irrigation.
j-) The Company shall use brick or concrete pavers
along the Property's frontage along U.S. -1.
k) The building's parking shall be available to
the general public for public parking during the
evenings and weekends subject to the Company's
Page 5 of 16
right to designate the hours of operation and
parking rates.
1) The Company shall develop an incentive program
to promote the use of Metro -Rail by all employees
during peak hours.
m) The Company in cooperation with the South
Miami departments of Public Works and Planning
shall erect directional signs - and traffic
directional structures in the exits of the
parking garage and within the public right of way
to guide exiting traffic away' from abutting
neighborhood roads to U.S. 1, during peak hours.
n) The Company in cooperation with the South
Miami departments of Public Works and Planning
shall install traffic calming devices within the
abutting public right of way to assist in the
movement of traffic away from the adjacent
residential neighborhood and to U.S.1 during peak_
hours.
o) The Company shall coordinate with the South
Florida Commuter Services to promote carpooling.
9. Consistency with City of South Miami Comprehensive
Plan and Land Development Regulations. The city has adopted
a 'Comprehensive Plan and Land Development Regulations in
accordance with Chapter 163, Part II, Florida Statutes. The
city finds that the project is consistent with the city's
comprehensive plan and the city's land development
regulations. The project, a mixed use retail and office
development, as set forth herein, is consistent with the
" Mixed -Us e.. Commercial /Residential (Four Story)" designation
on the future land use map, and the HD -OV zoning district
Page 6 of 16
on the Official Zoning Atlas of the City of South Miami.
Goal 2 of the Future Land Use Element identifies the
defines the home town district which consists of the
"Hometown District Overlay Zone," as defined in Article
VII, sections 20 -7.1 through 20 -7.52 of the city's land
development regulations.
10. Vesting. As long as the development on the
Property is in compliance with this Agreement, and all
applicable laws, ordinances, codes and policies in
existence. at the time of the execution of the Agreement as
we`ll as other requirements imposed by the City Commission
..,upon the ratification- of the site plan approval on the
'Property, the Property shall not be the subject of a down
zoning application by the City and shall not be subject to
any development moratorium, referenda action, ordinances,
policies, or procedures enacted by the City that limits the
development contemplated by this Agreement and depicted in
the site plan. Any failure by this Agreement to address a
particular permit, condition, term or restriction shall not
relieve the Company of the necessity of complying with the
law governing said permitting requirements, conditions,
terms or restrictions.
11. Permits; Conditions, Terms and Restrictions not
Addressed. The failure of this agreement to address a
particular permit, condition, term or restriction shall not
relieve the Company or the city of the necessity of
complying with the law governing said permitting
requirements, conditions, terms, or restrictions.
Page 7 of 16
12. Duration of Permits. The Company acknowledges that
this agreement does not extend the duration of any permits
or approvals.
13. Law Governing Development
ordinances, policies and procedures
Miami concerning development of the
existence as of the execution of
govern the development of the properi
the term of this agreement No
ordinances, policies, or procedures
property except as provided by law.
of the Property. The
of the City of South
property that are in
this agreement shall
:y for the duration of
subsequently adopted
shall apply to the
14. Termination. Prior to commencement of construction
of the Project, this agreement may be terminated by mutual
written consent of the city and Company,- subject to the
terms and conditions herein. Either party may terminate
this Agreement if the other party commits or allows to be
committed any material breach of this Agreement. A
"material breach" of this Agreement shall include, but not
be limited to, a failure of either party to perform any
material duty or obligation on its part for any thirty (30)
consecutive day. period. Neither party may terminate this
Agreement on grounds of material breach of this Agreement
unless it has provided written notice to the other party of
its intention to declare a breach and to terminate this
Agreement (the "Notice to Terminate ") and the breaching
party thereafter fails to cure or take steps to
substantially .cure the breach within sixty (60) days
following the receipt of such Notice to Terminate, with the
exception of monetary breaches which shall be cured within
thirty (30) after receipt of notice.
Page 8 of 16
15. Assignment. This Agreement may not be assigned by
the Company except to an affiliated entity, without the
prior written consent of the City. Subject to the preceding
sentence this Agreement shall be binding upon the
successors, assigns, and representatives of the parties
hereto. An affiliated entity is an entity of which 64
DEVELOPMENT CORPORATION or a majority of its shareholders,
directly or indirectly owns at least 510 of the beneficial
interest.
16. Work Force. The Company agrees to use its best
efforts to enhance job opportunities for local citizens in
':connection with the project. To that end and in order to
maximize job opportunities for applicants from South Miami,
the Company shall send notice 'to the Community
Redevelopment Agency Director of the City of South Miami,
or a substitute designee by the City Manager, regarding
employment opportunities related to any (1) construction
work on the Property, (2) temporary or permanent
maintenance work on the Property, or (3) proposals for
leasing of retail space or employment opportunities
associated with retail space located on the Property.
17. Joint Preparation. This agreement has been drafted
with the participation of the city and Company and their
counsel, and shall not be construed .against any party on
account of draftsmanship.
18. Binding Effect. The burdens of this agreement
shall be binding upon, and the benefits of this agreement
shall inure to, all successors in interest to the parties
of this agreement.
Page 9 of 16
19. Captions and Headings. Paragraph headings are for
convenience only and shall not be used to construe or
interpret this agreement.
20. Applicable Laws, Jurisdiction, and Venue. This
agreement shall be governed by and interpreted, construed,
and enforced in accordance "with the laws of Florida without
regard to principles-of conflicts of law. Venue for any
litigation pertaining to the subject matter hereof shall be
exclusively in Miami -Dade County Florida.
21. Enforcement. In any litigation arising out of this
agreement, the prevailing party shall be entitled to
recover its costs and attorneys fees. Attorney's fees
payable under this paragraph shall not exceed 25% of the
amount of damages awarded to the prevailing party, and no
party shall be entitled to pre - judgment interest. In any.
injunctive or other action not seeking damages under this
paragraph, legal fees may be awarded in the discretion of
the court, but shall be reasonable and shall not exceed an
hourly rate of $300.00 per hour.
22. Inspection. Nothing in this Agreement shall be
construed to waive or limit the City's governmental
authority as a municipal corporation and political
subdivision of the State of Florida. The Company therefore
understands and agrees that any official inspector of.the
City of South Miami, or its agents duly authorized, have
the right to enter, inspect and investigate all activities
on the premises to determine whether the Property complies
with applicable laws including but not limited to building
and zoning regulations and the conditions herein.
Page 10 of 16
23. Authorization to Withhold Permits and Inspections.
In the event the Company is obligated to make payments or
improvements under the terms of this Agreement and such
payments are not made as required, or such improvements are
not made as required, in addition to any other remedies
available, the City of South Miami is hereby authorized to
withhold any further permits on the portion of the Property
failing to comply with this Agreement, and refuse any
inspections or grant any approvals, with regard -to that
portion of the Property until such time this Agreement is
complied with.
24. Representations of the Company. The Company
represents to the City as follows:
(a) .The execution, delivery and performance of
this Agreement and all other instruments and
agreements executed in connection with this
Agreement have been properly authorized by the
Company and do not require further approval by
Company.
(b) This Agreement has. been properly executed,
and constitutes the Company's legal, valid and
binding obligations, enforceable against Company
in accordance with its terms.
(c) There are no actions, suits or proceedings
pending or threatened against or affecting the
Company before any court or governmental agency
that would in any material way affect Company's
ability to perform this Agreement.
(d) The Company shall not act in any way
whatsoever, directly or indirectly, to cause this
Page 11 of 16
Agreement to be amended, modified, canceled, or
terminated, except pursuant to its express terms,
and shall take all actions necessary to ensure
that this Agreement shall remain in full force
and effect at all times:
(e) The Company has the financial capacity to
pay or advance to the City all fees and payments
as required under this Agreement.
25. Severabi.lity. In the event that any of the
covenants, agreements, terms, or provisions contained in
this agreement shall- be invalid, illegal, or unenforceable
in any respect, the validity of the remaining covenants,
agreements,. terms, or provisions contained herein shall be
in no way affected, prejudiced, or disturbed thereby.
26. Waivers. No failure or delay by the'Company or the
_City to insist upon the strict performance of .any covenant,
agreement, term or condition of this Agreement, or to
exercise any right or remedy consequent upon the breach
thereof, shall constitute a waiver of any such breach or
any subsequent breach of such covenant, agreement, term or
condition. No covenant, agreement, term, or condition of
this Agreement and no breach thereof shall be waived,
altered or modified except by written instrument. No waiver
of any breach shall affect or alter this Agreement, but
each and every covenant, agreement, term and condition of
this Agreement shall continue in full force and effect with
respect to any other then existing or subsequent breach
thereof.
27. Annual Report and Review. It shall, be the
responsibility of the Company to submit an annual report to
Page 12 of 16
the City. This agreement shall be reviewed annually on the
anniversary of the effective date of this agreement. The
Company, or it's assign, shall submit an annual report at
least 30 days prior to the annual review date. This report
shall contain a section -by- section listing of what
obligations have been met and the date finalized, as good
faith compliance with the terms of the agreement. The city
commission shall review the annual report at a public
meeting. If the City Commission finds,, on the basis of
substantial competent evidence, that there has been a
failure to comply 'with the terms of the Agreement, the
Agreement may be revoked or modified by the City. The
obligation to submit an annual report shall- conclude upon
the date on which the agreement is terminated.
28. Notices. Any notices or reports required by this
agreement shall be sent to the following:
For the City: City Manager
City of South Miami
6130 Sunset Drive
South Miami, Florida 33143
Copy to: Planning Director
Planning and Community .'
Development Department
City of South Miami
6130 Sunset Drive
South Miami, Florida 33143
For the Company: 64 DEVELOPMENT CORPORATION
Attn: Marcelo Fernandes
4311 Ponce De Leon Boulevard
Coral Gables, Florida 33146
Copy to: W. Tucker Gibbs, Esq.
215 Grand Avenue
Coconut Grove, Florida 33133
Page 13 of 16
29. Exhibits. All exhibits attached hereto contain
additional terms of this agreement and are incorporated
herein by reference.
30. Amendment. This agreement may be amended by mutual
written consent of the city and Company so long as the
amendment meets the requirements of the act, applicable
city ordinances and Florida law.
31. Entire agreement. This agreement represents the
entire agreement and -no prior or present agreements or
representations shall be binding upon either the city or
Company, unless specifically incorporated herein by
reference, whether such prior present agreements have been
made orally or in writing. Each . party affirmatively
represents that no promises have been made 'to that party
that are not contained in this Agreement, and the Exhibits,
and stipulates that no evidence of any promises not
contained in this Agreement, and the Exhibits, shall be
admitted into evidence on its behalf. This Agreement shall
not be supplemented, amended or modified by any course of
dealing, course of performance or uses of trade and may
only be amended or modified by a written instrument duly
executed by officers of both parties.
32. Third Party Beneficiary. This Agreement is
exclusively for the benefit of the parties hereto and,their
Affiliates, and it may not be enforced by any party other
than the parties to this Agreement and shall not give rise
to liability to any third party other than the authorized
successors and assigns of the parties hereto.
Page 14 of 16
33. Periods of Time. Whenever any. determination is to
be made or action is to be taken on a date specified in
this Agreement, if such date shall fall on a Saturday,
Sunday or legal holiday, then in such event said date shall
be extended to the next day which is not a Saturday, Sunday
or legal holiday.
34: Counterparts.. This Agreement may be executed
(including by facsimile) in one or more counterparts, and
by the different parties hereto in separate counterparts,
each of which when executed shall be deemed to be an
original but all of which taken together shall constitute
one and the same agreement.
yj
•Y!
35. Recordation. Within 20 days after the Agreement
has been signed by both the Company and the City, the
Applicant -shall cause a copy of the Agreement to be
recorded at the Applicant's expense in the registry of
deeds in Miami -Dade County.
PASSED AND DULY ADOPTED by the y commission of the
City of South Miami, Florida, this of March, 2008:
SIGNATURES,ON FOLLOWING PAGE
Page 15 of 16
ATTEST:
Q.TY CLER —�
READ AND APPROVED AS TO FORM:
�r
I Y "ATTORNEY
FA
BOOK 26&1!5 PAGi-E
L1=4 S"r � PvG,E r"
APPROVED:
AGREED TO this 10day of March, 2008.
Witnesses:
64 DEVELOPMENT OORPORATION
�t. /V
Preside
P =int Name
Print Name t'yx1`n - %j
STAT£ OF FLORIDA, Ccy1 Nly Or A� � q cour r
1 NEROY Y olat this Is of Ilse o „rK
da)r c, y
A 20
odjhsal #n the aftic�on M
STATE OF FLORIDA �a, oirlufarsed.
4yi�7dE55 rrq
HARVEY ht, C ER f ctr rdf �r 1 but f;�Cnurts
COUNTY OF MIAMI -DADE )'
The foregoin E trument was acki6owledged befo e me this
2008 by i�'�Ccr( jo who is
e.xson�ly knto me or who produced
as identification, on behalf
of the corporation.
Or FIORMA
My coraission expires . Ilenn] R. Traad
Corot '--'*n #DD644362
FEB. 26,2011
Page 16 of 16