10CITY OF SOUTH MIAMI
OFFICE OF THE CITY MANAGER
INTER - OFFICE MEMORANDUM
To: The Honorable Mayor Stoddard and
Via: Hector Mirabile, Ph.D., City
From: Thomas J. Vageline, Director
Planning and Zoning Departn
Date: February 1, 2011
South Miami
AH- NnencaCiN
2001
of the City Commission
ITEM NO.
Subject:
A Resolution of the Mayor and City Commission of the City of South Miami, Florida relating to
the review and acceptance of the Annual Report of the South Miami Corporation (First National
Bank of South Miami) on their proposed "Project Sunset" located at 5750 Sunset Drive; said
report required by Section 27 of a Development Agreement executed between the City of South
Miami and the South Miami Corporation by the adoption of Ordinance No. 05 -05 -1827; and
providing an effective date.
PROJECT SUMMARY
In March, 2005 the City Commission approved a mixed use project entitled "Project Sunset' located
at 5750 Sunset Drive. The project is a unified development covering 2 -1/2 blocks (4.5 acres) in the
Hometown District. It includes 108 residential units and 87,212 square feet of commercial space. The
approval included the approval (by resolution) of two special exceptions to allow lot coverage and
building square footage to exceed the maximums permitted and to allow four drive - though teller lanes
where only two are permitted. A second item approved was an ordinance to accept a site plan for the
project and a Development Agreement pursuant to Florida Statutes 163.3220 - 163.3243.
PROJECT STATUS
The project is not under construction. In 2008 the developer did initiate a process to change the
project site plan, the special exceptions granted, and the Development Agreement itself. However, the
developer did notify the City that the proposed changes have been put on hold.
The Development Agreement, although adopted by the City in March 2005 was not signed (executed)
by both parties until December 26, 2007. The recordation was done on February 7, 2008 which is
legally considered the effective date of the Development Agreement (Section 3, Development
Agreement). The maximum period of the Development Agreement is 10 years from the effective
date.
ANNUAL RE, EPORT
The Development Agreement includes the requirement (Section 27, p13) that the developer submit
an annual report 30 days before the anniversary of the effective date on February 7. The 2011 Annual
report was submitted to the City on January 5, 2011. It is essentially a status report showing that
obligations have been met and that there has been compliance with the provisions of the Agreement.
The annual 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.
ADMINISTRATION RECOMMENDATION
The submitted annual report is in the form of a two page communication from Jerry Proctor, Esq.,
representing the developer, South Miami Corporation. The report concludes that all of the obligations set
forth in the Development Agreement are met and that due to economic and market considerations the
project has not commenced. The executed Development Agreement is attached as EXHIBIT "A" as a part
of the report.
The submitted report is in compliance with the terms of the Agreement and it is recommended that the
report be accepted by adoption of the attached resolution.
Attachments:
Draft Resolution
Annual Report from Developer 12 -29 -10
Ord. No. 05 -05 -1827
EXHIBIT "A" Development Agreement
TJVISAY
X-IComm 1temsU01 A2 -1 -1 DBank Project Annual Rep 2011 CMreport.doc
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RESOLUTION NO.
A Resolution of the Mayor and City Commission of the City of South Miami, Florida
relating to the review and acceptance of the Annual Report of the South Miami Corporation
(First National Bank of South Miami) on their proposed "Project Sunset" located at 5750
Sunset Drive; said report required by Section 27 of a Development Agreement executed
between the City of South Miami and the South Miami Corporation by the adoption of
Ordinance No. 05 -05 -1827; and providing an effective date.
WHEREAS, In March, 2005 the City Commission approved a mixed use project
entitled "Project Sunset' located at 5750 Sunset Drive, which project is a unified development
covering 2 -1/2 blocks (4.5 acres) in the Hometown District and includes 108 residential units and
87,212 square feet of commercial space.; and
WHEREAS, a Development Agreement was executed between the City of South
Miami and the South Miami Corporation by the adoption of Ordinance No. 05 -05 -1827 in March
2005 and is legally considered effective for a maximum period of 10 years from the effective
date of February 7, 2008; and
WHEREAS, the Development Agreement includes the requirement (Section 27,
p.13) 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 2011 Annual report was submitted to the City on January 5, 2011;
and in the form of a two page communication from Jerry Proctor, Esq., representing the developer,
South Miami Corporation, said report concluding that all of the obligations set forth in the
Development Agreement are met and that due to economic and market considerations the project
has not commenced; 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 2011 Annual Report of the South Miami Corporation (First National
Bank of South Miami) on their proposed "Project Sunset' located at 5750 Sunset Drive as required
by Section 27 of the Development Agreement is accepted.
Section 2. This resolution shall be effective immediately upon being approved.
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PASSED AND ADOPTED this , day of
ATTEST:
CITY CLERK
READ AND APPROVED AS TO FORM
AND SUFFICIENCY:
CITY ATTORNEY
2
2011
APPROVED:
MAYOR
X: \Comm Items \2011\2 -1 -11 \Bank Project Annual Report 2011 Resolution.doc
Commission Vote:
Mayor Stoddard:
Vice Mayor Newman:
Commissioner Palmer:
Commissioner Beasley:
Commissioner Harris:
Bilzin Sumberg
A] T O R N E Y S AT LAW
JAN 0 5 2C =i
Via Hand Delivery
Dr. Hector Mirabile
City Manager
City of South Miami
6130 Sunset Drive
South Miami, Florida 33143
Dear Dr. Mirabile:
December 29, 2010
Jerry S. Proctor, Esq.
Tel 305.350.2361
Fax 305.351.2250
jproctor @bilzin.com
ie
,I SWIM
Re: South Miami Corporation
Property: 5750 Sunset Drive and 1 -112 blocks to the south and
southwest, City of South Miami
Tax Folio Numbers: 09- 4036- 022 -0060, 09- 4036- 022 -0070, 09-
4036- 022 -0400, 09- 4036 - 022 -0410, 09- 4036 - 022 -0450, 09 -4036-
022 -0420, 09- 4036- 022 -0430, 09- 4036- 022 -0320, 09- 4036 -022-
0310, 09- 4036 - 022 -0300, 09- 4036 - 022 -0330, and 09- 4036 -022-
0290
Annual Report of Development Agreement
This law firm represents the owner, South Miami Corporation ( "Owner "), of the property
located at 5750 Sunset Drive and the 1 -1/2 blocks to the south and southwest, South Miami,
Florida ( "Property "). The Property includes the twelve (12) folio numbers referenced above, and
includes the headquarters of the First National Bank of South Miami.
The Owner and the City of South Miami ( "City ") entered into a Development Agreement
( "Agreement') related to the development of the Property. The Development Agreement, a
copy of which is attached as Exhibit "A ", was approved by the City Commission and was
recorded in the Public Records on February 7, 2008. In accordance with Section 27 of the
Agreement, the Owner is required to submit an Annual Report to the City. Please accept this
correspondence as the Annual Report.
1. Use of Property. The Owner received approval by the City Commission in 2005 (the
"2005 Application ") for a mixed use development consisting of retail and office space
and residential units at a maximum building height of 56 feet. The terms for approval are
described in the Development Agreement, and remain in full force and effect.
Development of the Property under the approved plans has not commenced since the
recordation of the Development Agreement, due to economic and market
considerations. In the interim, the Property is used as a Bank and for off - street parking,
which provides a public benefit.
BILZIN SUMBERG BAENA PRICE & AXELROD LLP
1450 Brickell Avenue, Suite 2300, Miami, FL 33131 -3456 Tel 305.374.7580 Fax 305.374.7593 www.bilzin.com
Page 2
December 29, 2010
2. Commitments: The Owner intends to comply with all permitting and infrastructure
requirements enumerated in the Development Agreement,
3. Compliance: The 2005 Application meets all concurrency requirements, pursuant to
Section 6 of the Development Agreement, and is consistent with the City of South Miami
Comprehensive Plan, pursuant to Section 9 of the Development Agreement. The Owner
continues to keep tax payments current; the attached Exhibit "B" is the cumulative 2010
tax payment to Miami -Dade County, totaling $494,576.46.
4. Assignment: The Owner has not assigned the Development Agreement to another
entity and is in compliance with Section 15 of the Development Agreement.
5. Owner's Representations. The Owner affirms the representations made to the City
in Section 24 of the Development Agreement.
In summary and as documented above, the Owner has met or commits to satisfying all
of the obligations set forth in the Agreement.
Thank you for your attention to this matter and please do not hesitate to contact me if
you have any questions or require any additional information.
JBP:id
cc: Thomas Vageline, Planning Director
Laurence Feingold, Esq., City Attorney
Max Mohler
Bruce MacArthur
MIAMI 2382936.1 7319013706
12/29/10
( n BILZIN SUMBERG BAENA PRICE & AXELROD LLP
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RECORDED 02/07/2008 10:5306
HARVEY RUVIN, CLERK, OF COURT
t1IAtn -DARE C.OUHTY, FLORIDA
DEVELOPMENT A(3REEMHNT
HET'MN
THE CITY OF SOUTH MIAMI, £LORIAA
,'ANA SOUTH MIAMI CORPORA'T'ION
THIS DEVPLOBNENT AGAREN M ( "Agreement ") is made as of
mav_ gg,Fi Tun* 14, 2045 by and between THE CITY OF
SOUTH MIAMI, FLORIDA a.municipal corporation ("City") and
SOUTH MIAMI CORPORATION ( ,,Company ") or its assignee.
RECITALS
WHEREAS, the Florida Local Government Del velopment
Agreement Act, set forth in sections 163.3220 - 163.3243,
Florida Statutes, set forth in Exhibit "A" (the "Act ")
provides for the execution of development agreements for a
term not to exceed ten (20) years to insure that the law in
effect at the time of the execution of the development
agreement shall govern the development of the land for the
duration of the agreement; and
WHEREAS, the city commission of the City of South
Miami has adopted ordinance No. 05 -05 -1821 which implements
the Act and permits the consideration and the adoption of
this agreement; and
WHERL"AS, the Company owns approximately 9.5 +/- acres,
zoned HD -OV, described in Exhibit "$," (the "Property ");
and
WSEREAS, the Company desires to construct a mixed use
development encompassing retail, office and residential
components described in Exhibit "C," (the "Project ") in the
Hometown District Overlay Zone within the City of South
Miami.
Page 1 of 17
RL-� 1`�}
EXHIBIT "A"
Book26203 /Page1380 CFN #20080104490 Page 1 of 22
a�b
NOW, THERZVORE, 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 Reoitala. 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 is 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 "D ".
3. Effectiva Data; Duration of Agreement. This
agreement shall become effective after it has been recorded
in the public records of Miami -Dade County and thirty (30)
days after it is received by the Florida Department of
Community Affairs (the "Effective Date ") . This agreement
shall terminate ten years from the effective date of this
agreement, unless otherwise extended or terminated as
provided for herein or in the act. The maximum period of
this agreement shall be ten (10) years from the effective
date unless extended by mutual consent of all legal and
equitable owners of the Property and the city upon approval
at public hearing, as provided in the act.
4. use of Property. The property described in Exhibit
"A" is to be utilized for the project described in Exhibit
"C a mixed use residential, office and retail project
with a residential use not to exceed 108 dwelling units on
Page 2 of }A
Book26203 /Page1381 CFN #20080104490 Page 2 of 22
approximately 4.5 +/- acres. The project will include
"chamfered" corners where it abuts roadway intersections
pursuant to Exhibit °C ". The occupied space of the project
will not exceed four stories or fifty six (56) feet in
height unless otherwise permitted by the South Miami
comprehensive plan or its land development regulations. The
total of occupied space of the project shall not exceed
four stories. Non - occupied space shall not exceed a maximum
height of fifty six feet. The project shall be built in two
phases as follows:
• Phase S shall consist of Blocks "R" and "GU "S'
described in Exhibit "C ".
• Phase it shall consist of Block ZQa "C° described
in Exhibit "CO.
• The Company may elect to implement the
development plan in one posse.
The 1" elect to utilima Block 'CO as a
•--- ^ - -r bank facility with drive - through lanes
knot to exceed four laneal which facility shall
bo removed upon the issuance of the Certificate
of occupancy for the Sank facility on Block "l, ".
The overall development of the property shall be
conducted in accordance with the approved site plan on file
at the City, (attached and incorporated as Exhibit "B ")
including elevations, architectural features and estimated
commercial square footage pursuant to Section 20.3 -7, of
the LDC.
5, Public F'acil'ities Serving the Project. In order to
enhance public facilities in the city of South Miami, the
Book26203 /Page1382
Page 3 of 17
CFN #200$0104490
Nntit %D'7k
Page 3 of 22
Company agrees to provide the services listed below in
compliance with Section 20 -4.1 of the LDC, including:
(a) Roadways
An operational traffic study was conducted, by
the city and the Company agrees to the
recommendations of city staff as set forth in
their staff report which recommendations are
incorporated herein by reference.
(b) Parks and Recreation
Based on the projected residential population
on the Property, Company agreeso— peY—s* —ear
the
re. ......L.te ..i
(c) Sanitary Sewers
Water and Sewer services that comply with all
requirements of Miami -Dade County for any
building prior to issuance of a final
Certificate of Use and Occupancy.
Page 4 of 17 )k. 1"111147
Book26203(Page1383 CFN #20080104490 Page 4 of 22
(d) Solid Waste
Solid Waste services that comply with all
requirements of Miami -Dade County for any
building prior to issuance of a final
Certificate of Use and occupancy.
(e) Schools
The Company commits to pay upon the issuance
of the initial certificate of occupancy any
required Miami -Dade County school Board school
impact fees.
6. Concurrency. The City of South Miami has determined
that the Company's performance under the Development
Agreement satisfies the concurrency 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 Comprehensive Plan and Land Development
Regulations.
7. Fsrmits. The permits preliminarily identified as
necessary for development of the project are described as
follows:
(a) Special Exception to permit four drive -
through teller lanes within the site.
(b) Special Exception to provide 72.2% +/- lot
coverage.
(c) Special Use permit to permit up to four
restaurants with a maximum total of 13,820+/ -
square feet with parking to be supplied from any
Page 5 of 17
Book26203 /Page1384 CFN #20080104490 Page 5 of 22
excess parking within the site. Retail and
restaurant parking shall be marked and signed.
S. 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) All development shall be in accord with the
site plan submitted with the special exception
and special use applications, said site plan
incorporated in Uhibit "C".
(e) The company shall provide the Department of
Blanning 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.
f) All conditions imposed by the City Commission
shall be incorporated in this Development
Agreement,
g) Company shall reimburse the City its lost
parking revenue from any metered parking. spaces
Page 6 of 17
Book26203 /Page1385 CFN #20080104490 Page 6 of 22
adjacent to the Property which it occupies or
uses during the construction period.
h) The company shall donate to a city trust fund
$9o,000.00 to be used by the city for traffic
calming or other traffic mitigation programs
within the City of South Miami, This money shall
be donated to the City , prior to the issuance of
its first building permit.
9. Consistency with City of South Miami Comprehensive
plan and Land Development Regulations. The city has adopted
a Comprehensive Plan and band 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 residential, office
and retail development, as set forth herein, is consistent
with t)Ye "Mixed -Use Commercial /Residential (Four Story)"
designation on the future land use map, and the HD -OV
zoning district 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 Zane," 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 Development Agreement,
and all applicable laws, ordinances, codes and policies in
existence at the time of the execution of the Development
Agreement as well as other requirements imposed by the City
Commission upon the ratification of the site plan approval
Page 7 of 17
Book26203/Page1386 CFN #20080104490 Page 7 of 22
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, `forms and Rastrictions 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.
12. Duration of Permits. The Company acknowledges that
this agreement does not extend the duration of any permits
or approvals.
13. Law Governing Development of the Property. The
ordinances, policies and procedures of the City of south
Miami concerning development of the property that. are in
existence as of the execution of this agreement shall
govern the development of the property fox the duration of
the term of this agreement No subsequently adopted
ordinances, policies, or procedures shall apply to the
property except in accordance with the provisions of
section 163.3233(2), Florida. Statutes, and ordinance No.
05 -05 -1827, as attached.
Page 8 of 17 _ ft-'( i1Iy)
Book26203 /Page1387 CFN##20080104490 Page 8 of 22
14. Taxaination. 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 Development
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.
15. AV*:L4nnant, This Development 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 Development Agreement shall be
binding upon the successors, assigns, and representatives
of the parties hereto. An affiliated entity is an entity of
which South Miami Corporation or a majority of its
shareholders, directly or indirectly owns at least 51% of
the beneficial interest.
16. Work rorce. 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
Page 9 of 17 h- k1li1k
Book26203CPage1388 CFN #20080104490 Page 9 of 22
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 Prspaxation, 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.
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 internal laws of
Florida without regard to principles of conflicts of law,
This agreement may be enforced as provided in Section
163.3243, Florida Statutes. venue for any litigation
pertaining to the subject matter hereof shall be
exclusively in Miami -Dade County Florida.
Page 10 of 27 Am r%1,
Book26203/Page1389 CFI #20080104490 Page 10 of 22
21, mnforeement. 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 2596 of the
amount of damages awarded to the prevailing party and no
party shall be entitled to pre- judgment interest. In any
in 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, Snspection. 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.
23. Authorization to Withhold Pezvd.ta and Inapections.
In the event the Company is obligated to make payments or
improvements under the terms of this Development 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 Development
Agreement, and refuse any inspections or grant any
approvals, with regard to that portion of the Property
Page 11 of 11
Book262031Page1390 CFN #20080104490 Page 11 of 22
until such time this Development Agreement is complied
with.
84. .Representationo 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 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
Company before any court or governmental agency
that would in any material way affect Company's
ability to perform this Agreement.
(d) Company shall not act in any way whatsoever,
directly or indirectly, to cause this 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) Company has the financial capacity to pay or
advance to the City all fees and payments as
reauired under this Agreement.
Page 12 of 17
Book26203 /Page1391 CFN #20080104490 Page 12 of 22
,
25. Severability. 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 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
the City sufficient to fulfill the requirements as .stated
in the provisions of section 163.3235, Florida Statutes,
and Ordinance No, 05- 05 -20D5. This agreement shall be
reviewed annually on the anniversary of the effective date
of this agreement. The Company, or its 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
Page 13 of 17
Book262031Page1392 CBN##20060104490 Page 13 of 22
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
Development 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 thoa Company: South Miami Corporation
Attn: Donald F. Hunter,
Vice President
And Wade R. Wacholz, counsel
5750 Sunset Drive
South Miami, Florida 33143
Copy to: Wade R. Wacholz, Esq.
Gislason &Hunter, L.'LP.
P.D. Box 5297
Hopkins, Minnesota 55243 -2297
W. Tucker Gibbs, Esq.
215 Grand Avenue
Coconut Grove, Florida 33133
Page 14 of 17 ' lu
Book26203 /Page1393 GFN #20080104490 Page 14 of 22
29. Exhibits.
additional terms o
herein by reference.
All exhibits attached hereto contain
this agreement and are incorporated
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 8aneficiary. 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.
33. Periods of Time. Whenever any determination is to
be made or action is to be taken on a date specified in
Page 15 of 17
Book26203 /Page1394 CFN #20080104490
�" 11(4
Page 15 of 22
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.
35. Recordation. Within 20 days after the Development
Agreement has been signed by both the Company and the City,
the Applicant shall cause a copy of the Development
Agreement to be recorded at the Applicant's expense in the
registry of deeds in Miami -Dade County.
36. Abandonment of Right -of -Way. The City agrees to
abandon the right -of -way adjacent to the property to the
buildable line. The Company shall contemporaneously grant
to the city an easement from the right-of -way adjacent to
the property to the buildable line for all future needs of
the City. To ensure that the proposed structure does not.
interfere with the City's future needs, any permanent
structure extending out over the City's easement shall
provide the City with clearance as provided in the Hometown
Overlay District in the Land Development Code (10 -feet
minimum),
Page 16 of 17
Book26203 /Pagel395 CFN #20080104490 Page 16 of 22
PASSED AND D'IDLY ADOPTED by the city, ebmmission of the,�,/
City of South Miami, Florida, this . day of*�200,
%"lft(e ,2oa
TEST:
TY'CLERK
APPROVED:
/ YOR
AGREED TO this
2 ()Q/.
IT
witnesses: SOUTH MIAM CORPORATION
�'��� mire President
Print Name A+z"%n
Print Name L. i NIT lR E
STATE OFFL4RT- fiA.7i��nto�g
1
COUNTY OF '?ffAMI BAR (!0QK )
The foregoing instrument was acknowledged before me this
day of [:+Eee.^i64JZ 2005�by 4. RoCKWEtt WlRTL who is
persQ,�elly known to me or who produced
'^---: as identification, on behalf
of the corporation.
CYNTt44 E. KRCH
My Commission expires: OFFICIAL SEAL y
} Rotm umbnkdoone olofYN95 ok
<, 2011
Page 17 of 17
Book26203 /Page1396 CFN #20050104490 Page 17 of 22
h�
ORDINANCE NO. 05-05-1827
AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY
OF SOUTH MIAMI, FLORIDA ADOPTING A DEVELOPMENT AGREEMENT
PURSUANT TO FLORIDA STATE STATUE 163.3221. FOR A UNIFIED
DEVELOPMENT PROJECT KNOWN AS "PROJECT SUNSET" WHICH WILL
INCLUDE THREE BUILDINGS UP TO FOUR (4) STORIES IN HEIGHT AND
THE FOLLOWING USES: 108 MULTI - FAMILY RESIDENTIAL UNITS,
RETAIL USES, OFFICE USES, RESTAURANTS, BANK AND PARKING
GARAGES; ALL FOR PROPERTY LOCATED GENERALLY AT 5750 SUNSET
DRIVE AND LEGALLY DESCRIBED AS LOTS 6 THRU 9, 40 THRU 45, .53
THRU 66 INCLUSIVE AND THE EAST 50 FEET OF LOTS 51 AND 52 OF W. A.
LARK1NS SUBDIVISION ACCORDING TO THE PLAT THEREOF
RECORDED IN PLAT BOOK 3 AT PAGE 198 OF THE PUBLIC RECORDS OF
MIAMI -DADS COUNTY; PROVIDING FOR SEVERABILPPY; PROVIDING
FOR ORDINANCES IN CONFLICT; AND PROVIDING AN EFFECTIVE DATE
WHEREAS, in 2005 the South Miami Corporation is requesting approval of a Development
Agreement for a 4.5 acre proposed unified development to be called "Project Sunset" which will include
a total of 108 dwelling units and 87,212 square feet of commercial space on property located generally
at 5750 Sunset Drive and legally described as lots 6 thm 9,40 thrn 45,53 thm 66 inclusive and the east
50 feet of Lots 51 and 52 of W. A. Larkins subdivision according to the plat thereof recorded in plat book
3 at page 198 of the public records of Miami -Dade County; and
r+.
WHEREAS, the City Commission at its March 1, 2005 meeting adopted a resolution allowing
two special exceptions and adopted a special use resolution permitting the location of four restaurants in
the unified development; and
WHTRE:AS, the Florida Local Government Development Agreement Act, set forth in sections
163.3220- 163.3243, Florida Statutes, provides for the execution of development agreements to insure that
the law and regulations in effect at the time of the execution of the development agreement shall govern
the development of the land for the duration of the agreement; and
WHEREAS, the South Miami Corfavation has proposed the execution of a development
agreement with the City of South Miami pertaining to the mixed use project eatitled "Project Sunset"
which agreement would set forth all of the conditions and commitments required by the City resulting
from the approval of the special exception and special use requests; and
WHEREAS, the Planning Board at a meeting on February 22, 2005 after a public hearing,
adopted a motion by a vote of 4 aye 1 nay recommending approval of the proposed Development
Agreement subject to specific revisions and conditions, which have been included in the draft agreement;
and
WHEREAS, the Mayor and City Commission of the City of South Miami desire to accept the
recommendation of the Planning Board.
NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND THE CITY
COMMISSION OF THE C)T Y OF SOU'T'H NHAMI, FLORWA:
Section I That a Development Agreement, attached as Exhibit "A" g&_aMrer1&d_-dur1nZ the
arch 1.005 kublie heazuz, and dated March 15, 2005 between the City
of South Miami, Florida, and the South Miami Corporation pertaining to a 4.5 acre proposed
Book26203 /Page1397 CFN #20080104490 Page 18 of 22
Ord. No. 05 -05 -1827 2
unified development to be called 'Trojeot Sunset' which will include a total of 108 dwelling units and
87,212 square feet of commercial space on property located generally at 5750 Sunset Drive and legally
described as Lots 6 thrn 9, 40 thru 45, 53 thru 66 inclusive and the east 50 feet of Lots 51 and 52 of W,
A.. Larkins subdivision according to the plat thereof recorded in Plat Book 3 at page 198 of the public
records of Miami -Dade County is approved.
Section 2 If any section, clause, sentence, or phrase of this ordinance is for any reason held invalid or
unconstitutional by a court of competent jurisdiction, this holding shall not affect the validity of the
remaining portions of this ordinance. ,
Section 3 All ordinances or parts of ordinances in conflict with the provisions of this ordinance are
hereby repealed.
Section 4 'Phis ordinance shall be effective immediately afrer the adoption hereof.
PASSED AND ADOPTED this _ day of )k 4.e 2005
ATTEST: APPROVED:
I" Reading- 3/1/05
znd*sding-3 / 15 / 05
APPROVED AS TO FORM:
Exhibit "A" Development Agreement
& \Comm Items\ 2005 \3- 1- 051DevelopmentAgreement Bank Orddoc
COMMISSION VOTE:
4 -1
Mayor Russell:
Yea
Vice Mayor Palmer.
Yea
CommissionerWiscombe:
Yea
Commissioner Birts- Cooper:
Yea
Commissioner Sherar
Nay
Book26203 /Page1398 CFN##20080104490 Page 19 of 22
AN ORDINANCE OF THE MAYOR AND CITY C0V M[SS1ON OF THE CITY OF SOUTH
MIAMI, FLORIDA AMENDING THE AEVELOPMENT AGREEMENT ADOPTED AS PART
OF ORDINANCE 140.05-05.1827 WHICH APPROVED THE DEVELOPMENT AGREEMENT
FOR A UNUITED DEVELOPMENT PROJECT KNOWN AS 00PROJECT SUNSET" LOCATED
GENERALLY AT 5750 SUNSET DRIVE AND LEGALLY DESCRIBED AS LOTS 6 THRII 9, 40
THRII 45,53 THRU 66 INCLUSIVE AND THE EAST 50 FEET OF LOTS 51 AND 52 OF W. A.
LARRINS SUBDIVISION ACCORDING TO THE PLAT THEREOF RECORDED IN PLAT
BOOK 3 AT PAGE 198 OF THE PUBLIC RECORDS OF MIANH -DADS COUNTY*, THE
PURPOSE OF THE AMENDMENT IS TO AUTHORIZE THE ADM MTRATION TO
PROVIDE A SPECWXC AMOUNT OF PARK AND OPEN SPACE CONCURRENCY
PAYMENT. TO THE CITY, AMENDING THE DATE FOR PAYMENT, AND ADJUSTING THE
RDORDINANCES IN CONFLICOT; AND PROVIDING AN EFFEC IVE DDATE ' PROVIDING FOR
WHEREAS,, the City Commission at its March 1, 2005 special meeting approved special
exceptions to permit "Project SuaseP', a unified mixed use development consisting of rezidartial office
and retail uses generally located at 5750 Sunset Drive; and
WHEREAS, the City Commission at its March 15, 2005, meeting adopted Ordinance No. 05-
05 -1827 approving a Development Agreement between the City and the developer, the South Miami
Corporation for Project Sunset; and .
WHEREAS, Section 4 of the Development Agreement entitled "Use of Property" sets forth a
phasing schedule for the development of the project; and
WHEREAS, the Administration has now negotiated an amended phasing schedule which should
reduce the impact of the development program on traffic and parking in the area; and
WIMREAS, Section 5 (b) of the Development Agreement entitled "Public Facilities Serving the
Project" provides a formula for determining the amount and timing of a park and open space concmrency
payment to be made by the developer to the City; and
WHEREAS, the Administ melon has now negotiated a specific amount and revised timing of the.
park and open space coucurrency payment to be made by the developer to the City; and
WHMREAS, the Planning Board at a special meeting its May 10, 2005 meeting after a public
hearing, adopted a motion by a vote of 5 aye 0 ray recommending approval ofthe proposed amendment
to the Development Agreement.
NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND TEE CITY
COMMISSION OF THE CITY OF SOUTH MIAI&, FLORIDA;
Section 1 .That Section 4 entitled "Use of Property" of the Development Agreement between the City
and the South Miami Corporation for Project Sunset adopted by Ordinance No. 05-05 -1827 at the March
15, 2005 City Commission meeting, is heraby amended to read:
4. "Use of Property. The property described in Exhibit "A" is to be utilized for the project
described in Exhibit "C ": a mixed use residential, office and retail project with a residential use
Book26203 /Page1399 CFN #20080104490 Page 20 of 22
drd. INo. 18-05-1840 2
1
3
4
5
6
7
8
9'
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
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42
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45
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48
49
not to exceed l08 dwelling units on approximately 4.5 +/. acres. The project will include
"chamfered" comers where it abuts roadway intersections pursuant to Exhibit "C". The occupied
space of the project will not exceed four stories or fifty six (56) fed in height unless otherwise
permitted by the South Miami comprehensive plan or its land development regulations, The total of
occupied space of the project shall not exceed four stories. Non - occupied space shall not exceed a
maximum height of fifty six feet. The project shall be built in tiwo phases as follows:
Phase I shall consist of Blocks "A" and UGM "fill described in Exhibit "C
Phase 1I shall consist of Block 4!4= "C" described in Exbibit "C ".
The Company may elect to bnattIement the rievelopnaent ratan In one
phase
The overall development of the property shall be conducted in accordance with the
approved site plan on file at the City, (attached and incorporated as Exhibit "C ")
including elevations, architectural features and estimated commercial square footage
pursuant to Section 203.4, of the LDC." ,
Section 2 That Section 5(b) entitled "Public Facilities Serving the Project" of the Development
Agreement between the City and the South Miami Corporation for Project Sunset adopted by Ordinance
No, 05-05 -1827 at the March 15, 2,005 City Commission meeting, is hereby amended to read:.
5. "Public Facilities Serving the Project
b) Parks and Recreation
Based on the projected residential population on the Property, Company agreese#�r -ter
Section 3 If any section, clause, sentence, or phrase of this ordinance is for any reason held invalid or
unconstitutional by a court of competent jurisdiction, this holding shall not affect the validity of the
remaining portions of this ordinance,
Section 4 All ordinances or parts of ordinances in conflict with the provisions of this ordinance are
hereby repealed.
Book26203 /Page1400 CPN #20080104490
Page 21 of 22
rq Ord. No. 18 -05 -1840
.n.
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Section 5 This ordinance shall be effective immediately after the adoption hereof..
PASSED AND ADOPTED this day of 2005
ATTEST: APPROVED;
Mmw=---
I8' Reading- 6/7/05
2"d Reading— 6/14/05
�aF�. •� M � r' i
r
CONSUSSSON VOTE:
Mayor Russell:
Vice Mayor Palmer:
Commissioner Wiseombe:
Commissioner Birts- Coopsr
Commissioner Sherar
New wording vnderlined,, wording to be removed indicated by strikethrough
\it.1CG &UpkV'YFNCt7N('iCOmm Rcros120eN- 7 -051T)creiopment AgttnmeM ProJttt Sunset Qrd.dcc
91
4 -0
Yea
absent
Yea
Yea
Yea
Book26203 /Page1401 CPN #20080104490 Page 22 of 22
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11/08/10
MIAMI -DADE TAX COLLECTOR
TAX SECTION
140 WEST FLAGLER STREET,
SUITE 1407
MIAMI, FL 33130 -1575
It]Bank
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* *521,929.89
MIAMI -DADE TAX COLLECTOR Vendor Number 5940
INVOICE NO DATE AMOUNT PAID GL ACCOUNT DESCRIPTION
-------- - - - - -- -- ----------- ---------- -- __- -- ---- --
YEAR 2010 11/01/10 494,576.46 'i10000290.70 MIA -DADS TAX COLLECTOR -RE
YEAR 2010 11/01/10 27,353.43 1000029050 MIA -DADE TAX COLLECTOR -PR
-
CHECK AMOUNT - 521,929.89
400004347 '
914t1F. 9SSUEp BY•MpNEVGRAM PAYMETlT 9YSTEMB, INC. P.O. BOX 8476;MINNEAPOUs ; yN 55480'
pMV✓EE. T}IE BANK OF NEJJVgWC NF1LON, 6LERETT, MA
. QATE
11/08/10'
PAY ...
Exaply * * * * ** *521,929 and 89/•100 dollars: AMOUNT.
* *521,929.89
1°6 THE . MIAMI -DARE TAY COLLECTOR 3 h 1, , <� .
DRDER �'��''�
OF TAX SECTION �'� ORAWER: Fh 6 NATIONAL BANK OF SO&i*l MIAMI
SUITE:I4 FLAGLER STREET,
SUTTE`. 1407
MIAMI, FLI 33130 --1575
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