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11CITY 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 Sc.uih Miami bAd M•AmericaCitY ro' 2cor 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 REPORT 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 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 Comm ItemA20I P2- 1- 111Bank Project Annual Rep 2011 CMreport.doc RESOLUTION NO. 4 A Resolution of the Mayor and City Commission of the City of South Miami, Florida 5 relating to the review and acceptance of the Annual Report of the South Miami Corporation 6 (First National Bank of South Miami) on their proposed "Project Sunset" located at 5750 7 Sunset Drive; said report required by Section 27 of a Development Agreement executed 8 between the City of South Miami and the South Miami Corporation by the adoption of 9 Ordinance No. 05 -05 -1827; and providing an effective date. 10 11 WHEREAS, In March, 2005 the City Commission approved a mixed use project 12 entitled "Project Sunset" located at 5750 Sunset Drive, which project is a unified development 13 covering 2 -1/2 blocks (4.5 acres) in the Hometown District and includes 108 residential units and 14 87,212 square feet of commercial space.; and 15 16 WHEREAS, a Development Agreement was executed between the City of South 17 Miami and the South Miami Corporation by the adoption of Ordinance No. 05 -05 -1827 in March 18 2005 and is legally considered effective for a maximum period of 10 years from the effective 19 date of February 7, 2008; and 20 21 WHEREAS, the Development Agreement includes the requirement (Section 27, 22 p.13) that the developer submit an annual report 30 days before the anniversary of the effective 23 date which report is a status report showing that obligations have been met and that there has been 24 compliance with the provisions of the Agreement.; and 25 26 WHEREAS, the 2011 Annual report was submitted to the City on January 5, 2011; 27 and in the form of a two page communication from Jerry Proctor, Esq., representing the developer, 28 South Miami Corporation, said report concluding that all of the obligations set forth in the 29 Development Agreement are met and that due to economic and market considerations the project 30 has not commenced; and 31 32 WHEREAS, the annual report in accordance with the Development Agreement 33 must be reviewed by the City Commission at a public meeting and the City Commission may 34 accept the report or if there is a finding by the Commission that there has been a failure to comply 35 with the terms of the Development Agreement, the Agreement may be revoked or modified by the 36 City. 37 38 NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY 39 COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA: 40 41 Section 1. The 2011 Annual Report of the South Miami Corporation (First National 42 Bank of South Miami) on their proposed "Project Sunset" located at 5750 Sunset Drive as required 43 by Section 27 of the Development Agreement is accepted. 44 45 Section 2. This resolution shall be effective immediately upon being approved. 46 47 48 49 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 2.2 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 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 Projoct Annual Report 2011 Resolution.doc Commission Vote: Mayor Stoddard: Vice Mayor Newman: Commissioner Palmer: Commissioner Beasley: Commissioner Harris: n Bilzin. S���b a° wr A T'i'G P. N EV3 _p. JAN Q 5 ?mi December 29, 2010 �c9v� Via Hand Defiw -any Dr, Hector Mirabile City Manager City of South Miami 6130 Sunset Drive South Miami, Florida 33143 Jerry B. Proctor, Esq. Tel 305.350.2361 Pax 305.351.2250 jnrcctor JbiW a.cem Re: South Miami Corporation Property. 5750 Sunset Drive and 1 -112 blocks to tho souib 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 Dear Dr. Mirabile: 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 Pax 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 $494,576.46. 4. Assignment: The Owner has not assigned the Development Agreement to another entity and is in compliance with Section 15 of the Development Agreement. 5. Owner's Representations. The Owner affirms the representations made to the City in Section 24 of the Development Agreement. In summary and as documented above, the Owner has met or commits to satisfying all of the obligations set forth in the Agreement. Thank you for your attention to this matter and please do not hesitate to contact me if you have any questions or require any additional information. Sincer , Jerry B. Proctor JBP:id cc: Thomas Vageline, Planning Director Laurence Feingold, Esq., City Attorney Max Mohler Bruce MacArthur MIAMI 23 82936.1 7319013706 12/29/10 1!;_ ;n BILZIN SUMBERG BAENA PRICE & AXELROD LLP 2 I[Illl1 C FN [fl2ll il7llE B FillI7111 0I4lllhlISll0 sIllf OR 8k 2620 3 Pss 1380 - 14011 (22ass) RECORDED 02 /07/3008 0.5306 HARVEY RUVIH, CLERK, OF COURT MIAHI --DADE COUHTY, FLORIDA DEVELOPMENT AGREEM XT SETNMN THE CITY OF SOUTH MIAMI, FLORIDA AND SOUTH MIAMI CORPORA$'Iax TSIS D3iV,ALOPMENT AGRZEKM (`"Agreement ") is made as of duns 14, 2005 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 Development 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 (10) 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 NHEREhS, the city commission of the City of South Miami has adopted Ordinance No. 05 -05 -1827 which implements the Act and permits the consideration and the adoption of this agreement; and . WHEREAS, the Company owns approximately 4.5 +/- acres, zoned HD -OV, described in Exhibit "$," (the "Property "); and waxRrAs, 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 2 of 17 EXHIBIT "A" Book26203 /Page1380 CFN #2b080104490 Page 1 of 22 Rpq", THZRZFORL, 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 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. nf£aotiva Date; 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 a 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 }7 W1 nt4� 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 T shall consist of Blocks "A" and " - "B" described in Exhibit "C ". Phase it shall consist of Block z4a 'C", described in Exhibit "C ". . The Company maY elect to implement the development plan in one phase. The Compaq 76ay elect to utilise Block "C" as _a ;&uTgrant bank facility with drive- through lanes (not to exceed 'four lanes? which facility shall be removed upon the issuance of the Certificate of occupancy for the Sank facility on Block "A" 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. S. Public Facilities Serving the Project. in order to enhance public facilities in the City of South Miami, the Page 3 of 17 Book26203 /Page1382 CFN #20080104490 Paae 3 of 22 Company agrees to provide the services listed below in compliance with Section 20 -4.1 of the LOC, 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 agrees evaL ift .Y_ ex (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 11 *-(zh11*7 Book262031Page1383 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. Concarrenoy. 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, Permits. 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 kvI fkt.l Book26203 /Pagel384 CFN #20080104490 Page 5 of 22 excess parking within the site. Retail and restaurant parking shall be marked and signed. B. 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 Exhibit "C ". (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. 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 k(j�1(� Page 6 of 17 Book26203 /Page1385 CFN #20080104490 rage 6 of 22 . I L. adjacent to the Property which it occupies or uses during the construction period. h) The Company shall donate to .a city trust fund $90,000.00 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 DevelOPMOnt Regulations. The city has adopted a comprehensive Plan and Land. Development Regulations in accordance with Chapter 163, Part 11, 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 the "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 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 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, Tarns and Aaetrict_i.ona 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 for 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"1111 ,q Book26203 /Page1387 CFN #20080104490 Page 8 of 22 14. Tarmination. 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, Asaignmant. 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 5116 of the beneficial interest. 16. Work Ford. 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,, lI,l Book26203 /Page1388 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. 11. 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. 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 Vanua. 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 17 Book26203(Page1389 CFN #20080104490 Page 10 of 22 21, Lnforcement. 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. 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 Permits and ,Inspections. 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 17 ft-'11t1 lui Book262031Page1390 CFN #20080104490 Page 11 of 22 until such time this Development Agreement is complied with. 24.. .Representations of tha 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 required under this Agreement. Page 12 of 17�i1�� r Book26203 /Page1391 CFN #20080104490 Page 12 of 22 I 25. saverability. 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, $ball 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 -2005. 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 BooWc26203 /Page1.392 CPN #20080104490 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 the 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. Gisla5On 6 Hunter, LLP. P.O. Box 5297 Hopkins, Minnesota 55243 -2297 W. Tucker Gibbs, Esq. 215 Grand Avenue Coconut Grove, Florida 33133 Page 14 of 17 'q'Ik Book262031Page1393 CFN #20080104490 Page 14 of 22 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 9enefic*ary, 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 Tima. Whenever any determination is to be made or action is to be taken on a date specified in Page 15 of 17 k tIl(11 Book26203 /Pagel394 CFN #20080104490 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. Counterpart*. 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) . . a- 1114, Page 16 of 17 Book26203 /Page1395 CFN #20080104490 I Page 16 of 22 PASS= AND Duly ADOPTED by the it Commission of the City of South Miami, Florida, this . day o 200 14 9za TEST: TY'CLERK MP, P-I A, q . M.e,n -en READ AND APPROfD AS TO FORM: APPROVED: / YOR �Ide , +4P L �+ 4. 1; � AGREED TO O this day of M 4, 200�IT Witnesses: SOUTH MIAH CORPORATION (^� **me President Print Name A,z"V Print Name STATE OF FLORIDA ztLlMOls ' COUNTY OF *EA3•iT-- F3FsBS eaor- The foregoing instrument was acknowledged before me this a(o day of or. C "1348.. 20OVIby �! ROGKWt7u. VL/IgTZ, who is pars neQ lly known to me or who produced "`- ---_•� as identification, on behalf of the corporation. 'E CYNW E.E. KRCN My commission expires: '�i(f(•' PFFICIAL$EAL NotWYCOrb8o, *rx>Yu o6 } '�F on Page 17 of 17 Book26203/Page1396 CFN #20080104490 Page 17 of 22 ORDINANCE NO. 05 -05 -1827 AN oRI)INANCE OF THE MAYOR AND Crff COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA ADOPTING AA DEVELOPMENT AGREEMENT PURSUANT TO FLORIDA STATE STATUE 163.3221. FOR A UNI 4 'D 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 PARICLNG GARAGES; ALL FOR PROPERTY LOCATED GENERALLY AT 5750 SUNSET DRIVE AND LEGALLY DESCRIBED AS LOTS 6 THRU 9, 40 THRZU 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 F FOR ORDINANCES IN CONFLICT; AND PROVIDING AN EFFECTIVED TE F WHEREAS, in 2005 the South Miami Corporation is requesting approval cf 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 thnt 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; and � WHEREAS, the City Commission at its Mazctt 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 W BEREAS, 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 ins that the law and regulations in effect at the time of the execution of the development agreement sbatl govern the development o£the land for the duration of the agreement; and WHEREAS, the South Miami Corporation has proposed the execution of a development agreement with the City of South Miami pertaining to the mixed use project entitled "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 VJIDMAS, the planning Board at a meeting on February 22, 2005 after a public hearing, adopted a motion by a vote of 4 aye I 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. NbW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND THE CITY COMMISSION OF THE CifY OF SOUTH MIAMI, FLORIDA: Section I That a Development Agreement, attached as Exlu'bit "A" as amended during me March 5 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 `Project Sunset' which mill 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 doscribed as Lots 6 thru 9, 40 duu 45, 53 On 66 inclusive and the, east 50 feet of Lots 51 and 52 of W. A Larldns subdivision according to the plat thereof recorded in Plat Book 3 at page 198 of the public records of Miami -Dade County is approved. Seetlon 2 If any section, clause, sentence, or please 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 All ordinances or parts of ordinances in conflict with the provisions of this ordinance are hereby repealed. Section 4 This ordinance shall be effective immediately after the adoption hereof. PASSED AND ADOPTM this J 5 day of _ k__ sll,,, 2005 ATTEST: APPROVED: uamo CLERK 1 " Reading-3/l/05 2 °�Oading -3 / 15 / O5 APPROVED AS TO FORM: Exhibit "A' Development Agreement E:�Comm Itcros12005�3- 1- OS�cvelopmeni Agzeement Bank Orddoc CONUMSION VOTE: 4 -1 Mayor Russell: Yea Vice Mayor Palmer: Yea Commissioner Wiscombe: Yea Commissioner Birts- Cooper: Yea Commissioner Sherar Nay Book26203 /Page1398 CFN #20080104490 Page 19 of 22 ORDINANCE NO. 18 -05 -1840 AN ORBINANCE OF THE MAYOR AND CITS' COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA AMENDING THE DEVELOPMENT AGREEMENT ADOPTED A5 PART OF ORDINANCE No. 05- 05.1827 WHICH APPROVED THE DEVELOPMENT AGREEMENT FOR A UNIFIED DEVELOPMENT PROJECT XNOWN AS "PROJECT SUNSET" LOCATED GENERALLY AT 5750 SUNSET DRIVE AND LEGALLY DESCRIBED AS LOTS 6 THRU 9, 40 THRU 45,53 THRU 66 INCLUSIVE AND THE FAST 50 FEET OF LOTS 51 AND 52 OF W A- M SUBDIVISION ACCORDING To THE PLAT THEREOF RECORDED IN PLAT BOOK 3 AT PAGE 19$ OF THE PUBLIC RECORDS OF MIAMI DADS COUNTY; THE PURPOSE OF THE AMENDMENT IS TO AUTHORIZE THE ADMINISTRATION TO PROYIDE A SPECIFIC AMOUNT OF PARK AND OPEN SPACE CONCURRENCY PAYMENT TO THE CITY, AMENDING THE DATE FOR PAYMENT, AND ADJUSTING THE a. PROVID1114G T, OR PHASING AYANOF 3IiCONFLIOT •,ANDPROVIDINGANLrFFECTTVED Tk 'PROVIDING FOR WHERE 'AS, City Commission at its March 1, 2005 special me�tng approved special exceptions to permit "Project Sunset", a unified mixed we development consisting of residential, office and retail uses generally located at 5750 Sunset Drive; and WHEREAS, the City Commission at its March 15, 2005. meeting adopted Ordmanoe 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 projedt; and WHEREAS, the Administration has now negotiated an amended phasing schedule which should reduce the impact of the development program on traffic and parldng in the area; and WHEREAS, 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 con-currency payment to be made by the developer to the City; and WHEREAS, the Administration has now negotiated a specific amount and revised timing of the park and open space coneurtmoy payment to be made by the developer to the City; and V,rfMREAS, 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 nay recommending approval of the proposed amendment to the Development Agreement. NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND THE CITY COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA: Section I .Tbat Section 4 entitled "Use of Pmpetty" 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 I5, 2005 City Commission meeting, is hereby 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 #200$0104490 Page 20 of 22 &d. No, 18 -05 --1840 1 2 3 4 5 6 7 8 9 10 it 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 41 42 43 44 45 46 47 48 49 not to exceed 108 dwelling units on approximately 4.5 +l- acres - The project will nclude "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 (;Wopphases as follows: • Phase 1 shall consist of Blocks "N' and 1133" described in Exhibit "C ". Phase IT shall consist of Block &44 `, C" described in Exhibit "C". • The Company may elect to implement the development plan 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 20.3.-7, of the LDC," . Section 2 That Section 5(b) entitled "Public Pacilities 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 Marob 15, 2005 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 agrees Section 3 Tf 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. ection 4 All ordinances or parts of ordinances in conflict with the provisions of this ordinance are hereby repealed. Book26203 /Page1400 CFN #20080104490 Page 21 of 22 3 ' ri Ord. No. 18 -05 -1840 r' V' a Se, iiott 5 This ordinance shall be effective immediately afrexthe adopton hereof M `O U day of � ' 2005 NW PASSED AND ADOPTED this Clam ATLEST: APPF.OVED: b J CITY CLERK ��. ]" Rsading- 6(7(05 2"d Reading- 6/14/05 READ e3N!}A},�VF.D AS TO FORM: „�C`I'l'Y ATTORNEY i CONa,USSION VOTE: 4 -0 MayorRnssoR' Yea Vice Mayor Palmer, absent Commissioner Wisoombe: Yea Commissioner Birts- Cooper: Yea Commissioner Shera: Yea New wording underiined,• wording to be removed indicated by sMblthraugh 1 1MCOAt7k"FV'I.AT11�tt�'Cf�COm°' �a"s�I0DS5.7 -0StDe�clnpmrnt AgteemuS Projrot Sunset Ord.doe Sook26203/Page1401 CFN #20080104490 Page 22 of 22 yy� S.CMy(nrP�z i a E ul Z b' AY P V1 4 sty` N ' p d o o a o c o 0 0 0 0 0 c CA hhCVN NNNOOhh; d; t`; �`` T' h r w CO W 07 CO t� l; to C7 C? M CD M t rr rrr'r NNN N r i-. .. r... .- .. -..-. 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M M M M C(I (A �} r 0 00 0 0 0 4 N O M 0 0 '000 N (6 h U1 N7 o cc�� u'i 0r co M Mfh: ("?o? rCt3 toI oM <tMh t-t� V'I'�oimcl <Y IhMM � s„ N 0004r OM'V'�v��� W CL a Cam. v w 0 o rpoo4o.00rp(n p4 �'^ 'to OMMM aDMd0(O 0M CD to � O M CS) M M M M QS d (0 C4 O fD M M C7 M a{ O O 4 d M (O O rq ,- 1000 rnt�hh- hd�C- t<'Sh -WNC6 t�V} 61 d .F: N i Q 0O0000 00 r N eC.W jMN�M Nd' h h OM M d'to cq cF N AY CVN d'MGoNN � F- U) , rrN M W M M MCOr1h ` -rM t0 NN r d N N I N Gf N N ,_ M r N 6 b W N N CO0 e0e�� cQ.,yyo W V0'�d M� � (00 (0(I M Lilts C7 MCD M M MMr (O M O co r- cqa NN 0-'rm 't , I WhrM �Mo W K 'r N N N •- C6 N 4 0 0 0 0 0 0 0 N(N M M [O M CO M C `3 N y W N qNN NN (0V 9CMii 1�c409 to M M MMM M M 0' S O cc 0 0 0 4 0 ° 000 In o00 k SR* jj f aKaai o south Miaial 11/08/10 MIAMI -DADE TAX COLLECTOR TAX SECTION 140 WEST FLAGLER STREET, SUITE 1407 MIAMI, FL 33130 -1575 90 Bob of Sagami 5940 * *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 -/10000296'7b MIA -DADE TAX COLLECTOR-RE YEAR 2010 11/01/10 27,353.43 1000029050 MIA -DADS TAX COLLECTOR -PR CHECK AMOUNT - 521,929.89 national ;;off 400004347 • � 950UE09Y MONEYORAM PAYMENT SYSTEME,;NC P.0.90X84T8tiMINNEAPOLiS; MN 55480 OMWEE n1E5ANKOf NEWYORK MELLON, EVEREiT. MA' • DATE '. 11/08/10 PAY ' • -.. .. .. Exactly and 89/1.00 doll'arS' AMOUNT . * *52X.929.89 70THE MIAMI -'DADE TA7C COLLECTOR ' ORDER', • �.=i« F.r`, r +3 `1..�� �. R•++ ru ..,,� .OF TAX SECTION DRAWER::FiRS1'NATiONAL SANKOF SOUTH MIAMI 140 -WEST FLAGLER SUITE. 1407: MIAMI, FL, 33130 -1575 -,• P° OODO4344n• 1:0 1LOD?09240i600 5 2 16 2790113 Subject: Background Information on Development Agreement for "Project Sunset" located at 5750 Sunset Drive South Miami Corporation (First National Bank of South Miami) on proposed "Project Sunset "; report required by Section 27 of a Development Agreement executed between the City of South Miami and the South Miami Corporation (Ordinance No. 05- 05- 1827). 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 of two special exceptions, a site plan and a Development Agreement. The Development Agreement, 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. The maximum period of the Development Agreement is 10 years from the effective date. The project is not under construction. Exhibit — Development Agreement ANNUAL REPORT 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 on February 7. 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. CITY COMMISSION MEETING 2 -3 -09. The first annual report was delivered to the City on January 12, 2009. A report dated February 3, 2009 prepared by the Planning and Zoning Department found that the Bank failed to file the Development Agreement in the County Records on time as required and therefore the Developer did not comply with the Development Agreement (Section 35). It would be up to the City Commission to determine if a breach occurred which could result in a revocation of the Agreement. The City Commission then voted to place the consideration of revoking the Development Agreement on the next agenda. Exhibit B — First Annual report Submitted by Bank 1 -12 -09 Exhibit C — CMMemo dated February 3,2009: Annual Report Development Agreement Exhibit D — Except from City Commission Minutes Feb. 3, 2009 pp.3 -4 2 CITY COMMISSION MEETING 2 -17 -09 During the City Manager's reporting period Commissioner Newman explained her concerns about the Bank Project's Development Agreement ( p.4). Item No.7 (pp. 8 -11) was a scheduled first reading of an ordinance revoking the Development Agreement. The revocation was approved on first reading. In a follow -up letter on February 24, 2009 from the Bank's attorney an explanation is provided concerning the late recordation of the signed Agreement. Exhibit E — Except from City Commission Minutes Feb. 17, 2009 p -4, pp. 8 -11 Exhibit F- Letter from J. Proctor, Feb. 24, 2009 CITY COMMISSION MEETING 3 -3 -09. The City Commission failed to adopt on second reading the ordinance revoking the Bank Project Development Agreement. It is important to note that Fla. State Statute 163.3239 requires the local government to file an executed Development Agreement; however, the Development Agreement with the Bank requires that the applicant (developer) is responsible for recordation (Section 35). Exhibit G - CMMemo dated March 3,2009: Annual Report — Development Agreement Exhibit H- Draft ordinance Exhibit I- Exceptfrom City Commission Minutes March. 3, 2009 pp.12 -15 Exhibit J— Fla. State Statute 163.3239 Recording and Effectiveness of Agreement Exhibit K — Letter from City Clerk filing the Development Agreement with DCA March 10, 2009 CITY COMMISSION MEETING 3 -2 -10. The Annual 2010 Report from the Bank as required by the Development Agreement is received by the City on January 5, 2010. The report is submitted to the City Commission at its March 2, 2010 meeting. A summary staff report is presented as part of the City Manager's Report section of the meeting. There is no discussion reported and the Annual Report is found to be in compliance with the terms of the Development Agreement. Exhibit L — 2010 Annual report Submitted by Bank 1 -4 -2010 Exhibit M— CM Memo dated March 2,2010: Annual Report Development Agreement CITY COMMISSION MEETING 2 -1 -11. The Annual 2011 Report from the Bank as required by the Development Agreement is received by the City on January 5, 2011. The report was submitted to the City Commission at its February 1, 2011 meeting. A summary staff report and a resolution accepting the annual report was presented on the Feb. 1, 2011 agenda. The item is deferred. Exhibit N— 2011 Annual report Submitted by Bank 1 -4 -2011 Exhibit O — CMMemo dated February 1, 2011: Annual Report Development Agreement TJV /SAY XAComm Items\2011\2 -15 -11 \Bank Project Develop.Report History Memo to CM.doc EXHIBIT "A" E[11111 011111111 H1111I11i1�11611 M1111110M OR 8k 21203 Fss 1380 - 1601- (22oss! RECORDED 02107/2008 `0153 =0d HARVEY RUVIHr CLERK OF COURT MIAMI -DADE CDUHTYP FLORIDA DEVELOPMENT "IC Y_ e . '..., ri �FLOTIIDA AM SOUTH .r • . U THIS DEVELOPXVM AGREE)WNT ( "Agreement ") is made as of June 1 005 by and between THE CITY OF SOUTH MIAMI, FLORIDA .a municipal corporation ( "City ") and SOUTH MIAMI CORPORATION ( "Company ") or its assignee: RECITALS WHERE", the Florida Local Government Development 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 - -ears to insure that the law in term not to exceed ten (10) y -- effect at the time the execution of the development agreement shall govern the development of the land for the duration of the agreement; and " -- _— "�'yfgEREAS, the c bycommissio"Fi `of't}ie City o #""SOUt'h - - -- - - Miami has adopted Ordinance No. 05 -05 -1827 which implements the Act and permits the consideration and the adoption of this agreement_; and _ WHEREAS, the Company owns approximately 4.5+ /- acres, zoned HD -OV, described in Exhibit "B," (the "Property "); and HSEREAs, the Company desires to construct a mixed use office and residential development encompassing retail, components described in Exhibit (the "Project ") in the ----- meon Miami. k- r ���1�,i Page 1 of 17 Book26203 /Page1380 CFN #20080104490 Page 1 of 22 a NOW, TEEVyv�DRE, 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 is deemed to be one unified parcel and is subject to the unity of title pursuant to the requirements of sections 20.1.30 and 20- 5.19 -of the City Land Development Code (the "LDC ") attached hereto as Exhibit "D ". 3. Effective Date; Duration of Agrees merit. 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 T 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 a public hearing, as provided in the act. 4. Dea 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 p i ,'J n�q Book26203 /Page1381 CFN #20080104490 Page 2 of 22 c 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 I shall consist of Blocks "A" and "G" described in Exhibit "C ". • Phase II shall consist of Block =;�a "C" described in Exhibit "C ". . • The Company may shat to inpl®mant th ® The am, taaV elect to Utilise Block "CO (not to exc**d four :Iane*L which facility shalt -q "A,. 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. ,Public Facilitia:Servinq _ tho,P =ojectin order to enhance public facilities in the City of South Miami, the Page 3 of 17 J�In k 1�.J Book26203 /Page1382 CFN #20080104490 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 agrees tee preyiele- Gity 489! I�aead en "e woe!!age h.1 rmepet to dnnste $292,000 in ----' '" ". one =lu= sum as its 'responsibility for meoting be made on or txrore xvw+ -- --•- - - - -- building permit and shall include any interest .,r rwrvvino coat incurred by the City untal receipt of the payment." (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 Att-(y11,117 Book26203 /Page1383 CFNIt20080104490 Page 4 of 22 t. 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 agrees tee preyiele- Gity 489! I�aead en "e woe!!age h.1 rmepet to dnnste $292,000 in ----' '" ". one =lu= sum as its 'responsibility for meoting be made on or txrore xvw+ -- --•- - - - -- building permit and shall include any interest .,r rwrvvino coat incurred by the City untal receipt of the payment." (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 Att-(y11,117 Book26203 /Page1383 CFNIt20080104490 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)(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— ct -Y--- a•cknowle.dges.- tha.t.- .the. - _application for site plan approva meets a 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 Giy Comprehen •save �P3r��andanrl D,e3 Qli gmen Regulations. 7. permits. 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 13,620+/ - square feet with parking to be supplied from any Page 5 of 17 Rook26203 /Page1384 CFN #20080104490 Page 5 of 22 excess parking within the site- Retail and restaurant parking shall be marked and signed. 6, 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 (e) The Company shall provide the Department of Planning with a temporary parking plan, including _- am _ opexaQral= plan- kh,daxess esnnsizuctton employee parking during the construction period, said plan shall include an enforcement plan and shall be subject to the review and approval by the -plannifig 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 (VtJtJ(OJ Page 6 of 17 Book26203 /Page1385 C FN #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 $40,000.00 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. g, Consistency with City of South Miami Comprehensive plan and band Development Regulations. The city has adopted' a Comprehensive Plan and Land Development Regulations in accordance with Chapter 163, Part II, Florida Statutes. The roject is consistent with the city's city finds that the p comprehensive plan and the city's land development regulations. The`- project,' -a—mixed-use - resident" al-, office a'"�T`i�tai'l� eve v me' rct� -a's�"5etm^L'ort^h�hereg°n; ait with the "Mixed -Use Commercial /Residential (Four Story)" designation on the future land use map, and the HD -OV zonziig�istric£"on tKe"Dfficial Z'o"`ri'rn Atlas-ofv=the�Gity -o South Miami. Goal 2 of the Future Land Use Element identifies the defines the home town district which consists of the "Hometown District Over�lamy 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 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 Rook26203 /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, Terms and Reatrictiona 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--- wktlr- the law governing said permitting requiremens�, ��]3�t'�."�sn�r "mom%— o- r- 3- est =iction.s -.: 12. Duration of permits. The company acknowledges that this .agreement =doe$ not ex ;tend t3?e du__r -:at o -n of_ any_p.e:rmits, or approvals. 13. Law Governing Development of the property. The ordinances, policies_..and_ procedures of the Cit y 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 for 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 X111,11 Book26203 /Page1387 CPN #20080104490 Page 8 of 22 14. TerminstiOn. 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 _._.. . _._ ... . --K- - - . . following the receipt of such Notice to Terminate', with' the exception of monetary breaches which spa 1 be- -cure wi�t i'in thirty (30) after receipt of notice. ."15`: " "R88i-gnment- -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. ➢7ork Forc®. be Co pang agrees 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 n M 1I8I Book262031Page1388 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, 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' cE the parties of this agreement. _ -- ---- 1���a_pt- ions — and== Head- nga�— Ea- r- agsaph:= :headings,::ar -e _ior convenience only and shall not be used to construe or interpret this agreement. 20. Applicable Laws, jurisdiction, and Vanua. 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 17 AvI r, I., Book26203 /Page1389 CFN #20080104490 Page 1 0 of 22 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 —°"°'°°crty— df'"'"5'ou`tti Mi iaii; O-r-- jts ---ar e-nVs duly anthorizedy have the right to enter, inspect and investigate all activities on the premises to determine whether the Property complies with app ica % —Taws `including but nbt�lim "t °ed" to `'buil'ding and zoning regulations and the conditions herein. 23. Authorization to Withhold. Permits and rnspections. 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 — Ps.operty_.f ailing ,to.- comply with this Development Agreement, and refuse any inspections or grant any approvals, with regard to that portion of the Property Page it of 17 A- 11111ul Rook26203 /Paqel390 CFN #20080104490 Page 11 of 22 until such time this Development 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 Company's legal, valid and binding obligations,, enforceable against Company in accordance with its terms. _ ._ .._.. _,...(c)..._Th.er.e- are.. no _ac.ti.ons, ....sui.ts. -or _p.ro.ceedings Company before any court or governmental agency that would in any material way affect Company Is i - ---_ -.:._... -. ._.. _ abi rty 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 _requi B.d_.un -d.er_ this...Agr-e.ement. Page 12 of 17 k 11 Ill., 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 modif.i.ed. except -by - wri -tten - instrument. -No - waiver - -�# �xyreachs3ald a £.feet= or= atea=— thsgxeemeTrt =but each and every covenant, agreement, term and condition of this Agreement shall continue in full force and effect with r -e•s eettoan- other- then- ex= i -s't -n - p y g = :or -'-•- subsequent -breach thereof. 27. Annual ,Report and Review. It shall be the - .a of- he= oy =Go stubmi- t= an= annual r -eport -to respans 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_._3o - _d.a.ys__prior___to__th_e_ annual review date. This report shall contain a section -by- section listing of what obligations have been met and the date Book262031 aae1392 Page 13 of 17 CFN #20080104490 tt'IftI., 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 Planning and Community Development Department City of South Miami -- ---- - - - - -- - -- 6130 - Sunset Drive South Miami, Florida 33143 For the Company: South Miami Corporation Attn: Donald F. Hunter, V ice -WPres i.dent . - - - -. And Wade R. Wacholz, counsel 5750 Sunset Drive South Miami, Florida 33143 Copy to: Wade R. Wacholz, Esq. Gislason 3 Hunter, LLP. P.O. Sox 5297 Hopkins, Minnesota 55243 -2297 -.. Gibbs, Esq.. 215 Grand Avenue Coconut Grove, Florida 33133 Page 14 of 17 Rnnk ?6203/Page1393 CFN #20080104490 Page 14 of 22 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 haTt� � _PPxiden� ,o aia3 g omis:es -not contained in this Agreement, and the Exhibits, shall be admitted into evidence on its behalf—This Agreement shall ,,__not be su..gplemented- ,.,__am,ended or- modi:£:ed�by any�c.ovrse. 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. 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 C:FN #20080104490 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 Rigbt -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). A- I'lolq Page 16 of 17 Rnnk26203IPaae1395 CFN #20080104490 Page 16 of 22 PASSED AND DULY ADOPTED by the cit Cbmmission Of the 1 City of South Miami, Florida, this day o ry "�n 20 . )Pa��g� ?'ST TY CLERK / �\` /?Y Zn 4Zn L� C. 2-, READ AND APPRCY,�D AS TO FORM: APPROVED: Cj TTTY" LX A �7 AGREED TO this day of Hareh onit , 200/. q Witnesses:' SOUTH MIAMI CORPORATION 41!60e President Print Name Aizn+it Print Name " NYT W I A E V-PL-H --STATE OF FLORIDA COUNTY OF Mla'-dil BAD COOK The foregoing instrument was acknowledged before me this by a(, day of 2001L W . POCKWilL WIP-7Z who is pers own to me or who produced !!��2 as identification, on behalf of he corporation. CYNnM E. KRCH My commission expires: CIA SAL Dy OFFI Pubac, StL ate E of 1111nols Comm Ksjon �43 i 4. Z e' DI I Eq* — Page 17 of 17 L Book26203/Page1 396 CFN#20080104490 Page I . 7 of 22 6° V 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 1633221, FOR A UNIFIED DEVELOPMENT PROJECT KNOWN AS "PROJECT SUNSET" «'HICK WILL INCLUDE THREE BUILDINGS UP TO FOUR (4) STORIES IN HEIGHT AND THE FOLLOWING USES: 108 MUFTI - 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. LAR.KINS SUBDIVISION ACCORDING TO THE PLAT THEREOF RECORDED IN PLAT BOOK 3 AT PAGE 198 OF THE PUBLIC RECORDS OF MIAN1S -DADE COUNTY; PROVIDING FOR SEVERABILITY; 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 thru 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; and P,'HF:REAS, the City Commission amt" Match 1-1 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 - -_ — VSHERXAAS, the- Fl orida'= L- ocal- Govemment_Development.Agreement Act, set forth in sections 7 63.3220- 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 Corporation has proposed the execution of a development agreement with the City of South Miami. pertaining to the mixed use project entitled "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 bearing, 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 ORDADgED BY THE MAYOR AND THE CITY COMMBSION OF THE CITY OF SOUTH MLk?vg, FLORIDA: Section I That a Development Agreement, attached as Exhibit "A" as amended during the March 15 2005 public hearing and dated March 15, 2005 between the City of South Miami, Florida, and the South Miami Corporation pertaining to a 4.5 acre proposed Dook26203 /Page1397 CFN #20030104490 Page 18 of 22 Ord. No. 05 -05 -1827 2 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 thru 9, 40 thm 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 PIat 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 This ordinance shall be effective immediately after the adoption hereof. PASSED AND ADOPTED this / ,S-t� day of ) vim, 2005 ATTEST: APPROVED: 'CLERK E :\Comm Items\2005\3- 1- 0:50evelopment Agreement Bank Ord dDe Book26203 /Page1398 CFN #20080104490 Page 19 of 22 2°' eading- 3/15/05 COMMISSION VOTE: 4 -1 APPROVED AS TO FORM: Mayor Russell: Yea Vice-Mayor Palmer: - - -: Yea ` - �Co'iniriissionei VR'iscombe: Yea CbnunissionerBirts- Cooper: Yea CITY ATTORNEY Commissioner Sherar Nay achment: Exhlbit, A Development Agreement E :\Comm Items\2005\3- 1- 0:50evelopment Agreement Bank Ord dDe Book26203 /Page1398 CFN #20080104490 Page 19 of 22 ORDINANCE NO. 18-D5-184D AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF SOUTH IYMlvT, FLORIDA A TENDING THE DEVELOPMENT AGREEMENT ADOPTED AS PART OF ORDINANCE NO. 05-05 -1827 WHICH APPRO'VED THE DEVELOPMENT AGREEMENT FOR A UNIFIED DEVELOPMENT PROJECT KNOWN AS `PROJECT SUNSET" 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. LARKINS SUBDIVISION ACCORDING TO THE PLAT THEREOF RECORDED IN PLAT BOOK 3 AT PAGE 198 OF THE PUBLIC RECORDS OF MIAMI -DARE COUNTY; THEE PURPOSE OF THE AD7ENDMENT IS TO AUTHORIZE THE ADMINISTRATION TO PROVIDE A SPECIFIC AMOUNT OF PARK AND OPEN SPACE CONCURRENCY PAYMENT TO THE CITY, AMENDING THE DATE FOR PAYMENT, AND ADJUSTING THE PHASING OF THE DEVELOPMENT; PROVIDING FOR SEVERABHSTY; PROVIDING FOR ORDINANCES IN CONFLICT; AND PROVIDING AN EFFECTIVE DATE WHEREAS,, the City Commission at its March 1, 2005 special meeting approved special exceptions to permit "Project Sunsef', a uni5ed mixed use development consisting of residential, 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 ]vrami Corporation for Project Sunset; and._,. _ . ... - WHEREAS, Sect on 4 of the Development Agreement e'ntit7m U of Properly" =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 ih�iu�a�Yoithe= 8eve�opmentprogratn •ontraffcandLLparlcing'in -the area;. and'_ . :.__ .. WHEREAS, 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 concurrency payment to be made by the developer to the City; and WHEREAS, the Administration has now negotiated a specific ainouuf andYevased timing of the park and open space concurrency payment to be made by the developer to the City; and WHEREAS, 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 nay recommending approval of the proposed amendment to the Development Agreement. NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND THE CITY COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA: Section I 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 hereby 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 brd. �LJO, 1 2 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 30 31 32 33 34 35 36 37 38 39 40 42 43 44 45 46 47 48 49 18- 05 -184C z not to exceed 108 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) feet in height unless otherwise permitted by the South Miami comprehensive plan or its land development regulations. The total of occupied spare 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 t-A% phases as follows: • Phase I shall consist of Blocks "A" and 9G9 "B" described in Exhibit "C". • Phase I1 shall consist of Block "C" described in Exhibit "C ". • The Comliany may elect to implement the development plan in one Phase • The Company may elect to utilize .Block "C" as a temporary bank facility with drive - through lanes (not to exceed four lanes) which " A ff 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 20.3.-7, of the LDC." ..Section _2 .That Section 5(b) entitled "Public Facilities Serving the Project" of the Development Ag ntbetween,the City and the South Miami Corporation for Project Sunset adopted by Ordinance Rb- T3= 05-M27 at the March -]5- 200 -City- Comrnisson eefft i"b ed -tt read: — -" 5. "Public Facilities Serving the Project b) Parks and Recreation Based on the projected residential population on the Property, Company agrees tom€ ^. -'�•� = ::,�+,�am ran �afiarr.�n n.,.,.•r,, t,. „t r *,,e r_a "r" a to donate 5232,000 in one lump sum as its responsibility for meeting park and recreation concurrency. Payment shall be made on or before receipt of the first building permit and shall include any interest or carrying cost incurred by the City until receipt of the payment." 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. Ord 19 CL NW r� ¢ L Ua tY ¢ OJ F NO. 18 -05 -1840 3 Section 5 This ordinance shall be effective immediately after the adoption hereof. PASSED AND ADOPTED this day of 2005 ATTEST: 11 Reading- 6/7/05 2°d Reading- 6/14/05 READ D- APPROVED AS TOFORM: ATTORNEY COMMISSION VOTE: 4 -0 MayorRnssell: Yea Vice Mayor Palmer: absent Commissioner Wiscombe: Yea Commissioner Birts- Cooper: Yea Commissioner Sherar Yea New wording undarlined; wording to be removed indicated by strikethrough 1Wcr,XUFFTLgMN r,\Comm 7tcm MD5\67- OMMIOPmcm A91==1 PNJcct S=el Ord.dm Sook26203 /Page1401 CFN #20080104430 Page 22 of 22 Mn Sumber g .ATTORNEYS AT LAW Jerry B. Proctor, Esq. Tel 305.350.2361 Fax 305.351.2250 jproctor @bilzin.com August 11, 2008 Hand Delivery Mr. Ajibola Balogun City Manager City of South Miami 6130 Sunset Drive South Miami, Florida 33143 Re: Tax Folio Nos.: 09- 4034 - 022 -0060, 09- 4036- 022 -0310, 09- 4036 -022- 0300, 09- 4036- 022 -0320, 09- 4036- 022 -0290, 09- 4036- 022 -0330, 09- 4036- 022 -0430, 09 -4036- 022 -0440, 09- 4036- 022 -0450, 09- 4036 -022- 0410,09- 4036 -022 -0420 Addresses: 5750 Sunset Drive, 5795 SW 73 Street, 7320 SW 57 Court, and 5791 SW 74 Street Application for Amendment to Development Agreement Dear Mr. Bafo-gun: Our firm represents the South Miami Corporation, fee simple owner of approximately 4.5 +/- acres of land in Downtown South Miami (the "Property "). The Property consists of approximately one -half block on the south side of Sunset Drive, west of SW 57 Court, an entire-block between SW 73-Street and SW 74 Street and between SW 57 Court and SW 58 Avenue, and an area of approximately one -half block in size located west of SW 58 Avenue, north of SW 74 Street. The Property was approved for a mixed -use development by the City Commission in 2005, consisting of 108 residential units, 13,820 square feet of restaurant floor area, 23,559 square feet of retail floor area, 17,713 square feet of bank area and 32,120 square feet of office floor area. Approvals by the City in 2005 consisted of: "� -1 pecla zcep loci oFNom Overlay D'1`sttic requi -re -melts to- em it- 72.29% lot coverage (60% permitted). 2. Special Exception of Hometown Overlay District requirement to permit four lanes of drive - through tellers (two lanes permitted). 3. Special Use to permit four (4) general restaurants. MIAMI 1510337.5 7681329325 EXHIBIT "B" 8/13/08 BILZIN SUMBERG BAENA PRICE & AXELROD LLP 200 S. Biscayne Boulevard, Suite 2500, Miami, FL 33131 -5340 Tel 305.374.7580 Fax 305.374.7593 www.bilzin.com August 11, 2008 Page 2 4. Ordinance approving a Development Agreement for the project, pursuant to Section 163.3221, F.S. South Miami Corporation (the "Applicants ") hereby requests modification of the Development Agreement, as recorded in Official Records Book 26203 at Pages 1380- 1401 of the Public Records of Miami -Dade County. Proposed modifications consist of: 1. FROM: 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 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 I shall consists of Blocks "A" and 'B" described in Exhibit "C. • Phase 11 shall consist of Block "C" described in Exhibit "C ". • The Company may elect to implement the development plan in one phase. • The Company may elect to utilize Block "C" as a temporary bank facility with _:drive- through lanes..(net -to- exceed -four lanes)- which facility shall be removed upon the issuance of the Certificate of Occupancy for the Bank facility on Block 'A, 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. 2. TO: FROM: Use of Propert y. 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 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 phases as follows: MIAMI 1510337.5 7681329325 8/13/08 BILZIN SUMBERG BAENA PRICE & AXELROD LLP August 11, 2008 Page 3 • Phase I shall consist of Block "A " described in Exhibit "C" • Phase 11 shall consist of Block "B" described in Exhibit "C" • Phase III shall consist of Block "C" described in Exhibit "C" • The Company may elect to implement the development plan in one or more phases. • The Company may elect to utilize Block "C" as a temporary bank facility with drive - through lanes (not to exceed four lanes) which facility shall be removed upon the issuance of the Certificate of Occupancy for the Bank facility on Block "A" and, to substitute a new Exhibit "B ". The revised plan is submitted as part of this application. FROM: Development Conditions: The following conditions shall apply to the development of the project: (a) All development shall be in accordance with the site plan submitted with the special exception and special use applications, said site plan incorporated in Exhibit "C ". — The attached site plans serve to amend the plan of record to the Property and would operate as the approved plans of record in this paragraph as well. The revised site plan reduces the overall impact of the development on the surrounding area, while retaining the quality of designed envisioned in the Hometown Plan. Particularly, the plan eliminates any restaurant uses on the Property. Since the 2005 hearing, a number of successful restaurants have opened in the vicinity of the Property. The applicant's new development program continues to propose up to 108 residential units, but reduces the non - residential a/c space from approximately 87,000 square feet to just over 65,000 square feet with concomitant reductions in parking demand and traffic impact on the community. The new development plan offers complimentary uses such as residential and office -- development -that Mi-operate -harm) oniously -• with. - the - ,restaurants. anal- ,.other -.uses opened in the vicinity since 2005, and will not overburden roadways or other city services, due to different peak hours of operation, and also illustrates a compatible scale and orientation. The reduced impact of the development envisioned in this application is underscored by the findings of the new traffic study, attached herewith, as prepared by Richard Garcia and Associates. MIAMI 1510337.5 7681329325 8/13/08 BILZIN SUMBERG BAENA PRICE & AXELROD LLP August 11, 2008 Page 4 The proposed development follows the spirit and letter of the City's Hometown District regulations and Comprehensive Plan requirements by: (1) Enhancing the City's community identity and "sense of place "; (2) Creating a developed identity that will recognize the importance of pedestrian comfort and the pedestrian environment; (3) Providing a mixture of uses in a vertical design that will most efficiently use parking resources and enhance the health of the "town center" concept in the Hometown Plan; (4) Providing a variety of design treatments, building shapes, and roof treatments to break up the massing of the development; and (5) Incorporating street trees and other plantings to create a pleasant pedestrian style_ and environment. ,- -__�_ Areas on which the development plans meet or exceed Hometown District standards include: 1:- The:.project compiies-with the- mixed -use- standards required for the district, incorporating retail, office and residential uses that create a sustainable urban pattern. 2. The project utilizes "genuine" materials presented in a straightforward and functional manner. 3. There area variety of different housing types an sizes to suitable fo a wider range of buyers and lifestyles. 4. The car is "disciplined" into working with the pedestrian nature of the project without eliminating its presence. 5. The project incorporates numerous setbacks, differing building heights and breaks, a variety of roof shapes to break up the massing of the development and the- incorporation of street- trees -and plantings help to.create a pleasant pedestrian scale and environment. 6. The project is below the maximum Floor Area Ratio of 1.6 7. The project has arcaded walkways at all commercial and retail frontages. MIAMI 1510337.5 7681329325 8/13/08 .,." BILZIN SUMBERG BAENA PRICE & AXELROD LLP August 11, 2008 Page 5 8. The parking is concealed entirely within the building and not visible from the street. 9. The buildings respect and respond to the neighboring properties. 10. The project creates an opportunity to create a real "main street" identity to the city center with a portion of SW 73"1 Street having the ability to be closed for street fairs and events. 11. Where residential units are located on the ground floor, the first floor is raised above grade, screened by landscape buffers and separated by stone retaining walls and railings. Thank you for your consideration of this application. Sincerely, Jerry B. Proctor JPB: rm cc: Ricardo Soto - Lopez, Planning Director, City of South Miami Luis Figueredo, Esq., City Attorney, City of South Miami T. Allen Eagleson Arnie Piechocki Richard Garcia Allison Schmitt MIAMI 151 0337.5 7681 329325 8/13/08 BILZIN SUMBERG BAENA PRICE & AXELROD LLP City a9South Miami Planning & Zoning Department City Hall, 6930 Sunset Drive, South Miami, Florida 33943 Telephone: (305),663 -6326; Fax: (305).666.4591 Application for Public Hearing Before Pfarming Board:& City Commission Address of Subject Property: Lot(s) Block_ See Exhibit "A" S bdivision PB Applicant: South Miami Corporation Phone: 305,350 -2361 Representative: Jerry B. Proctor, Esq. Organization; Bilzin Sumberg Baena Address: 200 So. Biscayne Blvd., Suite 2500 Price & Axelrod LLP Miami, FI 33131 _ Statement of hardship Phone: 365- 350,2361 Property Owner: South Miami Corporation Signature: See attached affidavit Mating Address: do Jerry B. Proctor, Csq. Phone: Address:.20D So. Biscayne Blvd., Suite 2500 Brief) explain application and cites specific Code sections: Miami; Fl 33131 Contract to purchase _ Current survey (1 original sealed and ArchitecUEngineer., Phone: AS THE APPLICANT, PLEASE INDICATE YOUR RELATIONSHIP 70 THIS PROJECT: X Owner. _ Owner's Representative _ Contract to purchase _ Option to purchase _TenanULessee APPLICATION IS HEREBY MADE FOR THE FOLLOWING: SUBMITTED MATERIALS PLEASE CHECK THE APPROPRIATE ITEM: CHECK ALL THATAPPLY: Text Amendment to LDC Variance X Letter of intent Zoning Map Amendment Special Use _ _ Justifications for change ]PLEASE PUD Approval Special Exception _ Statement of hardship PUD Major Change X Other X_ Proof of ownership or letter from owner _X_ Power of attorney Brief) explain application and cites specific Code sections: X Contract to purchase _ Current survey (1 original sealed and Modification of Development Agreement. signed /1 reduced copy @ 11" x 17 ") X_ 15 copies of Site Plan and Floor Plans reduced copy @ 11" x 17" X �X 20% Property owner signatures _ Mailing labels (3 sets) and map Section:_ Subsection:_ Page #:_ Amended Dater X _ Required Feels) The undersigned has read this completed application and represents that the information and all submitted materials are true and correct to he best of the applicant's knowledge and belief. - 6/26/08 Applicant's Signature and till Date Upon receipt, applications and all submitted materials will be reviewed for compliance with the Land Development Code and other applicable registrations. Applications found not in compliance will be rejected and returned to the applicant. Date Fled Petition Re MIAMI 1565230.1 7681329325 !✓18108 10:59 AM Date of PB Hearing Petition Accepted _ Date of Commission k V 61,010f . r rk- May 29, "21106' Sandy Youklis Acting Planning Director City of South Miami 6T30 Sunset Drive South Miami, Florida 33943 Re: Application forAmei7dment of a Development Agreement Dear Mr: Youklis; 'W. Rockwell Wirtz, as President of South Warni'Corporation, hereby attests that South Miami Corporation owns the property described in Exhibit "A ", and designate Jerry B.'Proctor.:of the law firm Bilzin Sumbero Baena Price & Axelrod LLP to represent South Miami Corporation in the application for public hearing for the property described on Exhibit "A ", located in the City of South Miami. •� 1 6/26/08 W. Rockwell Wirtz, as P sident of SOUTH MIAMI CORPORATION Date STATE OF Illinois ) ) SS: COUNTY OF Cook ) The foregoing instrument was acknowledged before me this 26th day of ,June 2006, by W. Rockwell Wirtz, as President of South Miami Corporation, a. Florida corporation, on behalf of said corporation. Illinois He /She is personally known to me or has produced a State of driver's license as identification. Sign Name: Print Name: Cynthia E. Krefi My Commission Expires: 8/4/201-1 NOTARY PUBLIC Serial No. (none, if blank): [NOTARY SEAL] CYNTHIA E, KRCH OFFICIAL SEAL Notary Pubik. State at tifinas Sincerely, My Cor vriBSon Evr*es .,x August 4, 2011 MIAMI 1565225.1 7681329325 Gl18Jll8 �' �Z'%�ef BiWn Sumberg ATT0 RN E Y S AT LAN! Via Hand Delivery Mr. Ajibola Balogun City Manager City of South Miami 6130 Sunset Drive South Miami, Florida 33143 EXHIBIT "B" Jerry B. Proctor, Esq. T ce 305350.2361 =,rx 305.351.2250 jproctor @bilzin.com January 8, 2009 Re: South Miami Corporation Property: 5750 Sunset Drive and 1 -112 blocks to the south and southwest, City of South Miami Annual Report of Development Agreement Dear Mr. Balogun: 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 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. 2. Future Use of Property: The Owner applied to the City in August, 2008 for an amendment to the Development Agreement (the "2008 Zoning Application ") to permit the review and approval of revised plans for the Property, and to permit "Special Exceptions" regarding the amount of lot coverage by buildings on the Property and the number of proposed drive - through bank teller windows. The Zoning Application is attached hereto as Exhibit "B ". The Zoning Application was approved by the Planning Board on October 28, 2008 and awaits final action by the City Commission. MIAMI 1721319.1 7681329325 1/9/09 SILZIN SUMBERG BAENA PRICE & AXELROD LLP 200 S. Biscayne Boulevard, Suite 2500, Miami, FL 33131 -5340 Tel 305.374.7580 Fax 305.374.7593 w .bilzin.com Page 2 January 8, 2009 3. Commitments: The Owner intends to comply with all permitting and infrastructure requirements enumerated in the Development Agreement. 4. Compliance: The 2005 Application and the 2008 Zoning Application meet all concurrency requirements, pursuant to Section 6 of the Development Agreement, and are consistent with the City of South Miami Comprehensive Plan, pursuant to Section 9 of the Development Agreement. 5, Assignment: The Owner has not assigned the Development Agreement to another entity and is in compliance with Section 15 of the Development Agreement. 6. 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 is diligently pursuing development of the Property and 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. Sincerely, Jer B. Proctor JBP:id cc: Sandy Youkilis, Acting Planning Director Luis Figueredo, Esq., City Attorney Arnie Piechocki Allen Eagleson Allison Schmitt MIAMI 1721319.1 7681329325 2 1/8/09 ( � BILZIN SUMBERG BAENA PRICE & AXELROD LLP south Miami EXHIBIT "C" All- America City CITY OF SOUTH MIAMI OFFICE OF THE CITY MANAGER INTER- OFFICE MEMORANDUM 2001 To: The Honorable Mayor Feliu and Members of the City Commission Via: Ajibola Balogun , City Manager Frown: Sanford A. Youkilis, Acting Planning Directo Date: February 3, 2009 ITEM NO. _ Subject: Annual Report on Project Sunset Project 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 a 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 as the developer is in the process of requesting changes to the site plan, the special exceptions granted and the Development Agreement itself. The changes have been recommended for approved by the Planning Board and are scheduled for consideration by the City Commission in February. The name of the project has been changed to "First on Sunset ". Effective Date 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 developer had 20 days from the signing date to record the agreement in the County's Public Records (Section 35). Annual Report The Agreement includes a requiring the submission by the developer of an annual report on the anniversary of the effective date of the Development Agreement (Section 27). 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. The project developer, South Miami Corporation, has submitted the required annual report in the form of a letter from the developer's attorney Jerry Proctor, Esq. dated January 8, 2009. It is attached 2 to this cover memo. A summary of progress made on the major obligations of the developer is contained in the cover letter. The executed Development Agreement is attached as part of the report. Administration Observations (1) There is a 33 month period between approval of the Development Agreement by the City Commission in March, 2005 and the official signing of the document by both parties in December, 2007. It is important to note that shortly after the project was approved by the City Commission in 2005 the developer began considering major changes in the scope of the project, phasing of the project, and the architectural design of the project. A new architectural finn was eventually hired. (2) The Administration has been able to determine that the Planning Director in 2005 -2006 insisted upon the signing of the Agreement by the developer. However, the developer based upon their concerns about re- designing the project did not sign the Agreement. In early December 2007 the City's Planning Director at that time discovered that the document had not been signed (executed) and insisted that the Agreement be executed immediately. This was done by the City and the developer on December 26, 2007. There are no State laws or sections in the Development Agreement itself which regulate when an agreement must be executed or signed. (3) It must be pointed out that the Developer did not comply with Section 35 of the Development Agreement which requires the developer to record the executed agreement within 20 days after the agreement is signed by both parties (December 26, 2007). A total of 43 days elapsed before the developer recorded the document on February 7, 2008. Attachments: Annual Reportfi^otn developer 118109 Development Agreenwnl SAY X. 1Comm ItemsLWO912- 3- 090ank Project Annual Rep CM report.doc EXHIBIT "D" ropm City of South Miami Regular City Commission Minutes February 3, 2009 CALL TO ORDER: The City Commission of the City of South Miami, Florida met in regular session on Tuesday, February 3, 2009, beginning at 7:03 p.m., in the City Commission Chambers, 6130 Sunset Drive. A. Roll Call: The following members of the City Commission were present: Mayor Horace G. Feliu, Vice Mayor Brian D. Beasley, and, Commissioners Velma Palmer, Jay Beckman and Valerie Newman. Also in attendance were: City Attorney Luis Figueredo, City Clerk Maria M. Menendez and City Manager Ajibola Balogun. B. Invocation: The invocation was delivered by Mayor Feliu. C. Pledge of Allegiance: The Pledge of Allegiance was recited in unison. D. Presentations(s) Michael I. Abrams, Director and Edwin 0' Miami Policy Group - Akerman Senterfitt Mr. Abrams and Mr. O'Dell addressed the Commission about the group that they represent. They explained that the firm of Akerman Senterfitt's Washington D.C. office specializes in obtaining legislative and agency appropriations and authorizations for public entities such as cities and counties, as well as private businesses and organizations. They also presented the Commission with an outline of the firm's qualifications. Planning and Zoning - Department Presentation REGULAR CITY COMMISSION 1 MINUTES - February 3, 2009 Mr. Youkilis conducted the Planning and Zoning presentation consisting of an overview of the department's functions and future priorities. ITEMS (S) FOR THE COMMISSION'S CONSIDERATION: 1. Approval of Minutes Minutes of January 14, 2009 Moved by Commissioner Palmer, seconded by Commissioner Beckman, the motion to approve the minutes of January 14, 2009 passed by a 5 -0 vote: Commissioner Beckman: Yea Commissioner Palmer: Yea Vice Mayor Beasley: Yea Commissioner Newman: Yea Mayor Feliu: Yea Minutes of January 20, 2009 Moved by Commissioner Palmer, seconded by Commissioner Beckman, the motion to approve the minutes of January 20, 2009 passed by a 5 -0 vote: Commissioner Beckman: Yea Commissioner Palmer: Yea Vice Mayor Beasley: Yea Commissioner Newman: Yea Mayor Feliu: Yea 2. City Manager's Report • Update on the posting of the Planning Director and Public Works Director position. Mr. Balogun then introduced engineer Jose Olivo as the new Public Works Director; • Update of Monthly Financial Status Reports; • Update on meeting with Ms. Victoria Calvin, owner of Splash Splash Pet Grooming Services; • Update on speeding issues along SW 60 Ave at approximately SW 64 Street; REGULAR CITY COMMISSION 2 MINUTES - February 3, 2009 • Supplemental report on ADA compliance regarding the number of handicap parking stalls in the City's parking garage; • Annual Report required by First on Sunset Project Development Agreement submitted by Jerry Proctor, Esq. representing project developer and property owner South Miami Corporation; • Response to Commissioner Newman's request relating to AT &T Box 62nd Ct. - Mr. Balogun asked the Commission for direction to proceed with notification of relocation to the resident. Commissioner Newman made reference to a letter from AT &T to Mr. olivo, which transpired that the function of the box is not for telephone services, but rather for cable /TV service. Among other comments, she said that the box is too big and that it affects the value of the property. She said that nowhere within the City of South Miami a box like this is found in front of a residence. After the Commission discussed the issue further, Counselor Figueredo said that it is important to confirm with AT &T whether the box is in fact for cable service and not necessarily communications; • Commissioner Newman, further referring to AT &T, said that if this is a cable -type franchise that is coming into the City, AT &T then would be required to have a license; • Update on County's proposed improvement to SW 80th St at the intersection of SW 67th Ave — conceptual design for the Commission's review and comments; (Red folder info) • Letter from Jerry Proctor requesting the scheduling of a special hearing regarding the 5750 Sunset Drive bank project; (Red folder info) • Mr. Proctor at this time was invited to come up to the podium to explain his request. He said that it was by coincidence that the Annual Report was also placed on the agenda since they are separate items. However, the request for a special hearing is for discussing pending zoning applications which were automatically deferred by the Commission back in December to allow time for the City to hold a special election and have a full complement of Commissioners; • At this time Commissioner Newman said that as per Florida Statutes, the Commission shall review the Annual Report at a public meeting. She further said that the developer did not comply with REGULAR CITY COMMISSION 3 MINUTES - February 3, 2009 Section 35 of the development agreement which required the developer to record and execute the agreement within 20 days after the agreement is signed; • At this junction, Commissioner Newman moved to revoke the development agreement. Motion seconded by Vice Mayor Beasley; • Counselor Figueredo indicated that whether this Commission revokes the development agreement or not, that action does not impact the application for special exception; • After discussion among the Commission, the motion to place the item on the next agenda for the purpose of considering revocation of the development agreement passed by a 3 -2 vote (Feliu and Beckman against). • At this time Mr. Proctor said that the above action by the Commission would render their request to hold a special hearing for the special exception; • Capital Improvement Plan Project Summary History with Estimated Completion Period requested by Commissioner Palmer; (Red folder information) • FPL Proposed Red Road to Douglas Rd Transmission Lines Project; (Red folder information) • After some discussion about scheduling a workshop with FPL, the Commission agreed on setting the date of February 23rd at 7:00 p.m.; • Supplement backup for item no. 10 on the agenda relating to Cambridge Lawns Marker Project. Bid is non - responsive and it will be bid again; (Red folder information) With no further comments the City Manager's Report ended. 3. City Attorney's Report Ordinance on EAR amendment Counselor Figueredo addressed the Commission regarding the proposed ordinance recommended by Commissioner Beckman on the EAR issue. He explained that the ordinance essentially removes the Future Land Use Category, entitled `Neighborhood Center Mixed -Use District "; that was the specific district that had been incorporated in order to facilitate the development of the Madison Square project. At this junction, he continued, since we can't reach consensus on that, what the Commissioner is proposing REGULAR CITY COMMISSION 4 MINUTES - February 3, 2009 EXHIBIT "E" PPT@W@ � City of South Miami Regular City Commission Minutes February 17, 2009 _ _- . . :'- The City Commission of the City of South Miami, Florida met in regular session on Tuesday, February 17, 2009, beginning at 7:11 p.m., in the City Commission Chambers, 6130 Sunset Drive. A. Roll Call: The following members of the City Commission were present: Mayor Horace G. Feliu, Vice Mayor Brian D. Beasley, and, Commissioners Velma Palmer, Jay Beckman and Valerie Newman. Also in attendance were: City Attorney Luis Figueredo, City Clerk Maria M. Menendez and City Manager Ajibola Balogun. B. Invocation: The invocation was delivered by Mayor Feliu. C. Pledge of Allegiance: The Pledge of Allegiance was recited in unison. D. Presentations(s) ltion and Key to the City - recoonizina former Mavor, Cathv McCann This presentation was postponed. Officers of the Month Police Chief Richardson presented Sgt. Jesus Aguiar with the Chief's Award, and Det. Joseph Mendez with the Officer of the Year Award. At this time, Rev. Pansy Graham informed the Commission about the South Miami Rotary Art Festival which will be held February 21 and 22, 2009 in South Miami downtown. REGULAR CITY COMMISSION 1 MINUTES - February 17, 2009 • Annual Report required by First on Sunset Project Development Agreement submitted by Jerry Proctor, Esq. representing project developer and property ° owner South Miami Corporation— Commissioner Newman requested clarification regarding the different dates appearing on the signature page of the development agreement— Counselor Figueredo said that the agreement was not executed for two years while some discussions were going on regarding the calculations of payments; the project was being handled by the Planning Director at the time. The document was put in the file, and later a subsequent Planning Director, Julian Perez in going through the file discovered that the agreement had never been signed. With no further comments the City Manager's Report ended. At this time a motion was made by Commissioner Newman, seconded by Vice Mayor Beasley to bring up and take item no. 13 out of order. The motion passed by a 3 -2 vote: Commissioner Beckman: Nay Commissioner Palmer: Yea Vice Mayor Beasley: Yea Commissioner Newman: Yea Mayor Feliu: Nay Moved by Commissioner Palmer, seconded by Mayor Feliu to reconsider the above motion. The motion passed by a 3 -2 vote: Commissioner Beckman: Yea Commissioner Palmer: Yea Vice Mayor Beasley: Nay Commissioner Newman: Nay Mayor Feliu: Yea Moved by Mayor Feliu, seconded by Commissioner Newman to hear item no. 13 after the Consent Agenda. The motion passed by a 4 -1 vote: Commissioner Beckman: Nay Commissioner Palmer: Yea Vice Mayor Beasley: Yea Commissioner Newman: Yea Mayor Feliu: Yea At this time Commissioner Beckman announced that there will be a resolution at the next meeting concerning the City gathering information about mortgage distressed properties and acting as an REGULAR CITY COMMISSION 4 MINUTES - February 17, 2009 Moved by Commissioner Beckman to amend Sec. 1.3 (Administrative Directives /Policy), page 2, lines 19 -20 to read as follows: Yeaialw y Updates or revisions to this Manual will be presented to the City Manager and City Commission for approval. needed, as d. g leuelget r - -- - -- ^ ^ °. Seconded by Mayor Feliu the motion to amend passed by a 5 -0 vote: Commissioner Beckman: Yea Commissioner Palmer: Yea Vice Mayor Beasley: Yea Commissioner Newman: Yea Mayor Feliu: Yea With some further comments, the motion to approve this item as amended passed by a 5 -0 vote: Commissioner Beckman: Yea Commissioner Palmer: Yea Vice Mayor Beasley: Yea Commissioner Newman: Yea Mayor Feliu: Yea ORDINANCE (S) FIRST READING PUBLIC HEARING (S) 7. AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA REVOKING A DEVELOPMENT AGREEMENT PURSUANT TO FLORIDA STATE STATUE 163.3225 FOR A UNIFIED DEVELOPMENT PROJECT PREVIOUSLY KNOWN AS "PROJECT SUNSET" AND NOW IDENTIFIED AS THE "FIRST ON SUNSET " PROJECT WHICH INCLUDES THREE BUILDINGS UP TO FOUR (4) STORIES IN HEIGHT WITH A NON - RESIDENTIAL FLOOR AREA RATIO OF .45 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. LARKINS SUBDIVISION ACCORDING TO THE PLAT THEREOF RECORDED IN PLAT BOOK 3 AT PAGE 198 OF THE PUBLIC RECORDS OF MIAMI -DADE COUNTY; PROVIDING FOR SEVERABILITY; PROVIDING FOR ORDINANCES IN CONFLICT; AND PROVIDING AN EFFECTIVE DATE. 3/5 (Commissioner Newman) Moved by Commissioner Palmer, seconded by Vice Mayor Beasley to approve this item. REGULAR CITY COMMISSION 8 MINUTES - February 17., 2009 Commissioner Newman explained that there are reasons for recommending revocation of this agreement based on the inconsistencies found in the dates of the document, and because of the finding of the document that was signed in April and that was missing from all references to this agreement. She also noted that the date of February 7, 2009 on page 1, line 41 of the ordinance should be corrected to read 2008. Mayor Feliu said that first of all, we need to make sure that we can legally revoke this agreement. Secondly, this may send the wrong message because this is a project that was originally greater in density, and it would seem as if we were punishing them now that they have scaled it back. Commissioner Beckman requested clarification from the City Attorney as to whether there is a legal basis for the City to unilaterally terminate this agreement. Counselor Figueredo said that there is a specific termination provision; a mistake made by staff is not a basis for unilaterally terminate this agreement. Under the termination provision, if either party breaches an agreement, they have to put the other party on notice by giving them a written 30 -day notice telling them that they had failed to record. At that juncture, the other party has 60 days to record; if the party does not record in 60 days, then we have a legal right under paragraph 14 of this agreement to terminate. He said that he does not have any evidence of such notification; therefore, there is no basis to legally terminate this agreement. At this time Commissioner Newman made a motion to subpoena former Planning Directors 0' Donnelly and Soto to appear at the next meeting. Seconded by Vice Mayor Beasley and later withdrawn. Vice Mayor Beasley said that he wished to hear from Mr. Proctor, the attorney for the South Miami Corporation. At this time the Mayor opened the public hearing. Mr. Proctor said that the property owner did not receive any notice of breach or potential breach opportunity to cure. Commissioner Palmer said that she is not against development; however, she said that she has always found discrepancies and inconsistencies with the agreement. At this time Mr. Proctor explained that the owner has an application pending to change the site plan, and to change some of the design and some of the architecture of the development. He REGULAR CITY COMMISSION 9 MINUTES - February 17, 2064 also explained that what they are doing now is making an annual report on their existing agreement with the City. Mayor Feliu asked whether the City could be sued by terminating this agreement. Counselor Figueredo explained that in order to prevent a suit, the City has to follow procedure by providing written notice and allowing the other party to cure the breach. Commissioner Beckman requested from Counselor Figueredo to conduct a research which will allow him to confirm that the existing agreement is in effect and binding. Sharon McCain addressed the Commission by going over some of the history of the process of this agreement which started, in 2005. Among other comments, she referred to a meeting held by the City's Development Review Committee on September 30, 2008, and a subsequent letter sent by the Planning Director to Mr. Proctor outlining amendments or safeguards that needed to be incorporated into the original development agreement in order to protect the interests of the City. She said that this letter was not attached to the backup of the Planning Board meeting in October 28, 2008. Moved by Vice Mayor Beasley, seconded by Commissioner Newman, the motion to extend the meeting beyond 11:00 p.m. to finish with this ordinance passed by a 4 -1 vote: Commissioner Beckman: Nay Commissioner Palmer: Yea Vice Mayor Beasley: Yea Commissioner Newman: Yea Mayor Feliu: Yea Ms. McCain continued addressing the Commission; among other things, she pointed out that there was no economic analysis done for the bank project. She said that the applicant has a totally new project, and then urged the Commission to send this back to the planning department. Ms. McCain also asked to go on record about a question to the Mayor regarding a kick -off party for his campaign by Mr. Arthur and Mr. Brackin. Her question to the City Attorney was whether the Mayor should disclose that and whether he should recuse from voting on this project. Counselor Figueredo explained that this had been consulted with the Ethics Commission, concluding that there was no matter before the Mayor at that time, the matter had already been voted on; and finally, Mayor Feliu has no financial interest in the project. REGULAR CITY COMMISSION 10 MINUTES - February 17, 2009 Javier Banos said that the only question that the Commission has in front of them at this time is whether or not the existing agreement is valid. At this time the public hearing was closed. Vice Mayor Beasley at this time urged the Commission to pass this ordinance on first reading, allowing for the necessary research to be done which will enable them to determine the legitimacy of the document. With some further comments, the motion to approve this item passed by a 3 -2 vote: Commissioner Beckman: May Commissioner Palmer: Yea Vice Mayor Beasley: Yea Commissioner Newman: Yea Mayor Feliu: Nay UNFINISHED BUSINESS RESOLUTION (S) 8. A RESOLUTION OF THE MAYOR & CITY COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA, RELATING TO BOARDS AND COMMITTEES; ESTABLISHING THE BUDGET AND FINANCE COMMITTEE FOR THE FISCAL YEAR 2009 -2010; PROVIDING FOR THE APPOINTMENT OF MEMBERS FOR A TERM ENDING SEPTEMBER 30, 2009; AND PROVIDING AN EFFECTIVE DATE. 3/5 (Deferred 2103109) (A RESOLUTION ESTABLISHING THE BUDGET AND FINANCE COMMITTEE FOR THE FY 09 -10; PROVIDING FOR THE APPOINTMENT OF MEMBERS FOR A TERM ENDING SEPTEMBER 30, 2009) (Commissioner Newman) 9. A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA, RELATING TO ATTORNEYS' FEES; APPROVING ATTORNEYS' FEES FOR NAGIN GALLOP FIGUEREDO, P.A. IN THE AMOUNT OF $22,100.00; CHARGING $22,000.00 TO ACCOUNT NO. 001 - 1500 - 514.31 -20; AND PROVIDING AN EFFECTIVE DATE. (Deferred 2103109) 3/5 (A RESOLUTION APPROVING ATTORNEYS' FEES FOR NGF IN THE AMT OF $22,100; CHARGING ACCOUNT NO. 001 - 1500 - 514.3120 W /CURRENT BAL$98,455.98) (City Attorney) REGULAR CITY COMMISSION 1 1 MINUTES - February 17, 2009 AT TO R N E Y S AT L A W --S, EXHIBIT "F" ji is �: t Hand Delivery Mr. W. Ajibola Balogun, REM, CFEA City Manager City of South Miami 6130 Sunset Drive South Miami, Florida 33143 Jerry B. Proctor, Esq. Tel 305.350.2361 Fax 305.351.2250 jproctor @bilzin.com February 24, 2009 Re: Ordinance to Revoke Development Agreement/South Miami Corporation Second Reading: March 3, 2009 Dear Mr. Balogun: We wish to correct certain elements contained in the City Staff report dated February 3, 2009 on the above captioned matter and to address concerns raised by members of the City Commission on first reading on February 17, 2009. 1. The City Staff report only refers to one development agreement, when in fact there are two separate agreements. The first development agreement was approved by the City Commission on March 14, 2005 and signed by South Miami Corporation on April 6, 2005. To our knowledge, the first development agreement was not recorded. 2. A second development agreement, which amended portions of the first development agreement, was approved by the City Commission on June 14, 2005. It is the second development agreement which is attached to the current ordinance to revoke and marked as Exhibit "A ". 3. It was brought to our client's attention by Julian Perez and Sandford Youkilis in September, 2007 that the second development agreement had not been prepared by the City, or signed or recorded. Our client agreed to cooperate with the City to rectify this situation. 4. A draft of the second development agreement was provided by Mr. Youkilis to us by email on December 7, 2007, a copy of which is attached. You will note that in this email, Mr. Youkilis advised us to have the agreement signed by our client, and thereafter to return it to the City for signing. Consistent with the requirements of State law, Mr. Youkilis stated in his email that "the City will then file the document with the County and forward it to the State DCA ". MIAMI 1754756.1 7681329325 2/24/09 2:36 PM BILZIN SUMBERG BAENA PRICE 8 "AXELROD LLP 200 S. Biscayne Boulevard, Suite 2500, Miami, FL 33131 -5340 Tel 305.374.7580 Fax 305.374.7593 www.bilzin.com nary 24, 2009 2 5. The second development agreement was signed by our client on December 26, 2007, and forwarded to the City Attorney by letter dated January 2, 2008 (copy attached). At that time, the - second development agreement had not been signed by the City. 6. In reliance upon the statutory requirements together with Mr. Youkilis' express undertaking to record the agreement, we. stated in our January 2, 2008 letter: "Pursuant to our recent meetings, the next step is for your office to forward the agreement to the State of Florida Department of Community Affairs and record in the public records." 7. We were advised by the City Attorney on February 5, 2008 that the second development agreement had just been signed by the City and that it was going to be recorded by the City forthwith. 8. The second development agreement was recorded by the City on February 7, 2008, 9. At no time has South Miami Corporation received any notice of breach or termination of the second development agreement from the City. South Miami Corporation was not made aware that the second development agreement had not been signed until September, 2007, when the City brought the matter to its attention, and has cooperated fully with the City thereafter. Sincerely, Jerry . Proctor JBP: id cc: Sandford Youkilis, Interim Planning Director, City of South Miami Luis Figueredo, Esq., City Attorney, City of South Miami MIAMI 1754756.1 7681329325 2/24/09 2:36 PM (G-3) BILZIN SUMBERG BAENA PRICE & AXELROD LLP From: Youkilis, Sanford [ SYoukilis @cityofsouthmiami.net] Sent: Friday, December 07, 2007 4:12 PM To: Jerry Proctor Cc: Perez, Julian; Figueredo, Luis Subject: Bank Project Interlocal Agreement Up -dated Attachments: Development Agreement 12- 6- 07.doc Please review up -dated agreement and have it signed; Return to the City for signing; City will then file the document with the County and forward to the State DCA. Sandy Y. 2/25/2009 Page I of I To: The Honorable Mayor Feliu and Members of the City Commission Via: Ajibola Balogun , City Manager From: Sanford A. Youkilis, Acting Planning Director Date: March 3, 2009 ITEM Subject: Annual Report on Project Sunset Project 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 a 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 as the developer is in the process of requesting changes to the site plan, the special exceptions granted and the Development Agreement itself. The changes have been recommended for approved by the Planning Board and are scheduled for consideration by the City Commission in February. The name of the project has been changed to "First on Sunset". Effective Date The Development Agreement, although adopted by the City on March 15. 2005 and modified on June 15, 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 developer had 20 days from the signing date to record the agreement in the County's Public Records (Section 35). Annual Report The Agreement includes a requiring the submission by the developer of an annual report on the anniversary of the effective date of the Development Agreement (Section 27). 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. The project developer, South Miami Corporat'( .. has ^tiL' fitted. the required annual report in the form of a letter from the developer's attorney Jerry ProCC ,)r_ Esq. dated January 8, 2009. It is attached Pa to this cover memo. A summary of progress made on the major obligations of the developer is contained in the cover letter. The executed Development Agreement is attached as part of the report. Administration Observations (1) There is a 31 month period between approval of the modified Development Agreement by the City Commission in June , 2005 and the official signing of the document by both parties in December, 2007. It is important to note that shortly after the project was approved by the City Commission in 2005 the developer began considering major changes in the scope of the project, phasing of the project, and the architectural design of the project. A new architectural firm was eventually hired. (2) The Administration has been able to determine that the Planning Director in 2005 -2006 insisted upon the signing of the Agreement by the developer. However, the developer based upon their concerns about re- designing the project did not sign the Agreement. In early December 2007 the City's Planning Director at that time discovered that the document had not been signed (executed) and insisted that the Agreement be executed immediately. This was done by the City and the developer on December 26, 2007. There are no State laws or sections in the Development Agreement itself which regulate when an agreement must be executed or signed. (3) It must be pointed out that the Developer did not comply with Section 35 of the Development Agreement which requires the developer to record the executed agreement within 20 days after the agreement is signed by both parties (December 26, 2007). A total of 43 days elapsed before the developer recorded the document on February 7, 2008. Attachments: Annual Reportfrom developer 118109 Development Agreement SAY X. 1Comm ltems1200912- 3- 090ank Project Annual Rep CM report.doc 1 2 3 4 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 41 42 43 44 45 46 47 48 49 50 51 EXHIBIT "H" ORDINANCE NO. REVISED AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA REVOKING A DEVELOPMENT AGREEMENT PURSUANT TO FLORIDA STATE STATUE 163.3225 FOR A UNIFIED DEVELOPMENT PROJECT PREVIOUSLY KNOWN AS "PROJECT SUNSET" AND NOW IDENTIFIED AS THE "FIRST ON SUNSET " PROJECT WHICH INCLUDES THREE BUILDINGS UP TO FOUR (4) STORIES IN HEIGHT WITH A NON- RESIDENTIAL FLOOR AREA RATIO OF .45 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. LARKINS SUBDIVISION ACCORDING TO THE PLAT THEREOF RECORDED IN PLAT BOOK 3 AT PAGE 198 OF THE PUBLIC RECORDS OF MIAMI -DADE COUNTY; PROVIDING FOR SEVERABILITY; PROVIDING FOR ORDINANCES IN CONFLICT; AND PROVIDING AN EFFECTIVE DATE WHEREAS, 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, in 2005 the South Miami Corporation requested approval of a Development Agreement for a 4.5 acre proposed unified development to be called "Project Sunset" and now identified as the "First on Sunset" project, 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 thru 9, 40 thru 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 WHEREAS, the City Commission at its March 15, 2005 meeting adopted Ordinance No.05 -05- 1827, which approved a Development Agreement for "Project Sunset"; and WHEREAS the City Commission at its June 14 2005 meeting adopted Ordinance No. 18-05-1840 which modified sections of the agreement pertaining to project phasing and the concurrence fee owed to the City; and WHEREAS, the Development Agreement was executed by the City of South Miami and the South Miami Corporation on December 26, 2007; and WHEREAS, Section 35 of the Development Agreement requires the applicant within 20 days after signing to file the Agreement in the registry of deeds in Miami -Dade County; and WHEREAS, the on February 7, 20098 did file the Development Agreement was filed in the registry of deeds in Miami -Dade County WHEREAS, pursuant to Section 27 of the Development Agreement the applicant on January 8, 2009 filed with the City a required annual report; and WHEREAS, the annual report was reviewed by the City Commission at its February 3, 2009 1 2 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 41 42 43 44 45 46 47 48 49 50 51 52 2 meeting at which time the Commission adopted a motion to revoke and terminate the existing Development Agreement as approved by Ordinance No.05 -05 -1827 on March 15, 2005 as modified by the adoption of Ordinance No. 18 -05 -1840 on June 14,2005; and WHEREAS, Florida State Statute 163.3225 (1) requires that a local government to conduct two public hearings before revoking a development agreement; and WHEREAS, all of the requirements for notice of the public hearings as set forth in Florida State Statute 163.3225 (2)(a)(b) have been implemented. NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND THE CITY COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA: Section 1 That a Development Agreement, attached as Exhibit "A" and dated February 7, 200 8 between the City of South Miami and the South Miami Corporation pertaining to a 4.5 acre proposed unified development project as legally described above and previously known as "Project Sunset" and now identified as the "First on Sunset" Project is hereby revoked and terminated. 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 This ordinance shall be effective immediately after the adoption hereof. PASSED AND ADOPTED this ATTEST: CITY CLERK I" Reading — 2" a Reading — READ AND APPROVED AS TO FORM: CITY ATTORNEY Attachment: Exhibit "A" Development Agreement day of 2009 FIVIsmem �1�7i MAYOR COMMISSION VOTE: Mayor Feliu: Vice Mayor Beasley: Commissioner Palmer: Commissioner Beckman: Commissioner Newman: X: \Comm Items \2009 \3 -3 -09 \Development Agreement Bank Revoke Ord Revised.doc EXHIBIT "I" PPT@W@ City of South Miami Regular City Commission Minutes March 3, 2009 CALL TO ORDER: The City Commission of the City of South Miami, Florida met in regular session on Tuesday, March 3, 2009, beginning at 7:09 p.m., in the City Commission Chambers, 6130 Sunset Drive. A. Roll Call: The following members of the City Commission were present: Mayor Horace G. Feliu, Vice Mayor Brian D. Beasley, and, Commissioners Velma Palmer, Jay Beckman and Valerie Newman. Also in attendance were: City Attorney Luis Figueredo, City Clerk Maria M. Menendez and City Manager Ajibola Balogun. B. Invocation: The invocation was delivered by Commissioner Palmer. C. Pledge of Allegiance: The Pledge of Allegiance was recited in unison. D. Presentations(s) (NONE) ITEMS (S) FOR THE COMMISSION'S CONSIDERATION: 1. Approval of Minutes Minutes of February 17, 2009 Moved by Commissioner Palmer, seconded by Commissioner Beckman, the motion to approve the minutes of February 17, 2009 passed by a 5 -0 vote: REGULAR CITY COMMISSION 1 MINUTES - March 3, 2009 ORDINANCE (S) SECOND READING PUBLIC HEARING (S) (CONT °D) 11. AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA REVOKING A DEVELOPMENT AGREEMENT PURSUANT TO FLORIDA STATE STATUE 163.3225 FOR A UNIFIED DEVELOPMENT PROJECT PREVIOUSLY KNOWN AS "PROJECT SUNSET" AND NOW IDENTIFIED AS THE "FIRST ON SUNSET " PROJECT WHICH INCLUDES THREE BUILDINGS UP TO FOUR (4) STORIES IN HEIGHT WITH A NON - RESIDENTIAL FLOOR AREA RATIO OF .45 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. LARKINS SUBDIVISION ACCORDING TO THE PLAT THEREOF RECORDED IN PLAT BOOK 3 AT PAGE 198 OF THE PUBLIC RECORDS OF MIAMI -DADE COUNTY; PROVIDING FOR SEVERABILITY; PROVIDING FOR ORDINANCES IN CONFLICT; AND PROVIDING AN EFFECTIVE DATE. 3/5 (Commissioner Newman) Moved by Mayor Feliu, seconded by Commissioners Palmer and Beckman to approve this item. Commissioner Newman said that this ordinance is based on Florida Statute 163.3225, particularly the section pertaining to local government findings that there has been a failure to comply with the terms of the development agreement. She said that she believes that this project, as stated by Mr. Proctor, that the project has substantially changed; the original agreement was signed by both parties; filed with the DCA in 2005; a new agreement was signed by Mayor Feliu in 2007; and the project was brought before the ERPB in 2006 to change. She said that she does not believe that the bank has acted in good faith and that is the reason why she brought forth this ordinance. Counsel Figueredo at this juncture proceeded to address some of the questions raised at the last meeting concerning the validity of the agreement. The agreement in April 2005 could have been amended by adding an addendum; however, the Commission in June 2005 approved a separate and distinct agreement, which is a valid agreement. He said that by approving this ordinance the Commission would be terminating the June 2005 agreement which was approved by ordinance. REGULAR CITY COMMISSION 12 MINUTES - March 3, 2009 Mayor Feliu said that there was a great deal of public input during the process of the original development agreement, and it took a great deal of effort from both sides to come up with the agreement that we have here now. In addition, he questioned the fact that we are punishing a good corporate citizen when they just want to reduce the size of the density. The public hearing was opened at this time. Jerry Proctor, attorney for the owner addressed the Commission. He said that the June 2005 development agreement was recorded, binding on the City and the property owner, and is still in effect with its rights and obligations on both sides. Tom Burn addressed the Commission with concerns regarding this ordinance since he is currently in the process of acquiring a property in South Miami and is concerned with the present uncertainty involving this agreement of the bank with the City. He urged the Commission to respect the decisions that were made in the past. John Edward Smith urged the Commission to consider a No vote if in the opinion of Counsel the agreement is sufficient and binding. He said that voting in favor of the ordinance is putting the City in jeopardy of costly legal action. Sharon McCain addressed the Commission regarding her own research of the history of the development agreement, presenting to the Commission with copies of the different documents she found in the Clerk's file. After elaborating on all the documents she presented, she said that she did not feel that the bank had acted in good faith. Stanley Price, another attorney for the owner, addressed the Commission stating that this ordinance is in total violation of a contract executed by this Commission; the contract specifically provides a procedure which has been outlined by the City Attorney. Under the terms of this contract, he continued, either party has an obligation, a condition preceding bringing any action that they first must identify what the default is, followed by a hearing, and then give notice to the other party to cure the defect. He said that there has been no clear demonstration that the other party (the bank) is in default. Mayor Feliu after referring to the termination clause of the agreement concluded that he would not support this ordinance because the city has not provided a notice of breach to the owner, at least there is none on record; and because this is not in the best interest of the citizens of South Miami. REGULAR CITY COMMISSION 13 MINUTES - March 3, 2009 Commissioner Beckman said that it had been clearly established in this hearing that there is an agreement between the two parties; that no notice of breach has been given by either party; that there has been no competent evidence of such a breach. He said that he also felt that they would put themselves in legal and moral jeopardy by cancelling this agreement. Vice Mayor Beasley referred to the language in the agreement on page 14 concerning revocation of the agreement, "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..." Counsel Figueredo explained that the entire contract needs to be reconciled, saying that the Commission would need to demonstrate that they have found substantial competent evidence that shows bad faith. With regard to the Vice Mayor's question as to the validity of the agreement, Counsel Figueredo explained that the actual Commission packet that was sent to the Commission back in June of 2005 included the agreement with strikethroughs and underlining to show the differences in the agreement; that was the document that the Commission voted on; that was the document that was executed and was subsequently recorded and sent to DCA. Commissioner Newman said that there is nothing on file that the agreement was sent to DCA in 2008. At this time Mayor Feliu moved to extend the meeting in order to finish this item. Seconded by Commissioner Beckman, the motion passed by a 5 -0 vote: Commissioner Beckman: Yea Commissioner Palmer: Yea Vice Mayor Beasley: Yea Commissioner Newman: Yea Mayor Feliu: Yea The discussion continued on the issue of the filing of the agreement with DCA. Counselor Figueredo said that the cure would be just to send it to DCA for filing. Commissioner Palmer asked Mr. Proctor for further clarification regarding the agreement and the changes. Mr. Proctor said that in June 2005 the property owner came forward with two amendments to the development that had been approved just a couple of months earlier. Those amendments were approved by a majority vote of the Commission, and those changes were incorporated in a new development agreement; that agreement REGULAR CITY COMMISSION 14 MINUTES - March 3, 2009 subsequently was recorded, and it is binding. There have been no other changes to that agreement approved by this body. There have been proposed changes, and there is an application pending to request certain minor amendments to the agreement. Those amendments and that application have not yet come in front of this Commission. At this time Mayor Feliu interrupted the meeting to ask Major Mills to escort Ms. McCain out of the Chamber for disrupting the meeting while Mr. Proctor was addressing the Commission. Commissioner Newman, requesting a point of order, made a motion to override Mayor Feliu's decision to ask Ms. McCain to be escorted out by a policeman. Seconded by Vice Mayor Beasley, the motion failed by a 2 -3 vote: Commissioner Beckman: Nay Commissioner Palmer: Nay Vice Mayor Beasley: Yea Commissioner Newman: Yea Mayor Feliu: Nay After some further comments, the motion to approve this item failed by a 2 -3 vote: Commissioner Beckman: Nay Commissioner Palmer: Nay Vice Mayor Beasley: Yea Commissioner Newman: Yea Mayor Feliu: Nay At this time the meeting was adjourned. PUBLIC REMARKS (5 minutes) UNFINISHED BUSINESS � , 12. A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA, APPROVING AND AUTHORIZING THE CITY MANAGER TO EXECUTE A ONE YEAR COLLECTIVE REGULAR CITY COMMISSION 15 MINUTES - March 3, 2009 Statutes & Constitution :View Statutes: Online Sunshine Select Year: 2010 Go, The 2010 Florida Statutes EXHIBIT `4P Page 1 of 1 Title XI Chapter 163 View Entire COUNTY ORGANIZATION AND INTERGOVERNMENTAL Chapter INTERGOVERNMENTAL RELATIONS PROGRAMS 163.3239 Recording and effectiveness of a development agreement.— Within 14 days after a local government enters into a development agreement, the local government shalt record the agreement with the clerk of the circuit court in the county where the local government is located. A copy of the recorded development agreement shall be submitted to the state land planning agency within 14 days after the agreement is recorded. A development agreement shall not be effective until it is properly recorded in the public records of the county and until 30 days after having been received by the state land planning agency pursuant to this section. The burdens of the development agreement shall be binding upon, and the benefits of the agreement shalt inure to, all successors in interest to the parties to the agreement. History. —s. 29, ch. 86 -191; s. 13, ch. 92 -129. Copyright © 1995 -2011 The Florida Legislature < Privacy Statement • Contact Us http: / /www. leg. state.fl.us /statutes /`index.cfm? App_ mode = Display _Statute &Search — String =... 2/4/2011 EXHIBIT "K" A t92x ,� u 611'iffl'qJIlf.F.B/L�.JP.GI, 2Mi1 CITY COMMISSION March 10, 2009 Ray Eubanks Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, FL 32399 -2100 Dear Mr. Eubanks: Enclosed please find the Development Agreement between the City of South Miami and South Miami Corporation that was recorded on February 7, 2008. Please certify this agreement. If you have any questions please give me a call. Sincerely, Nken Payne Deput City Clerk Encl. cc: Sandy Youkilis, Acting Planning Director Luis Figueredo, City Attorney Jerry B. Proctor, Esq. 6130 Sunset Drive • South Miami, Florida 3143 -5093 • Tel: (305) 663 -6340 • Fax: (305) 663 -6348 C-2) BMn Sum, berg ATTORNEYS AT LAW Via Hand Delivery Mr. Roger Carlton Acting City Manager City of South Miami 6130 Sunset Drive South Miami, Florida 33143 Dear Mr. Carlton: EXHIBIT "L" January 4, 2010 Jerry B. Proctor, Esq. Tel 305.3502361 Fax 305.351.2250 jproctor @bilzin.com A&A k6 IS Big MANAGERS 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, 094036- 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 attachLed 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 SAENA PRICE & AXELROD LLP 200 S. Biscayne Boulevard, Suite 2500, Miami, FL 33131.5340 Tel 305.374.7580 Fax 305.374.7593 MIAMI 1721319.3 7681329325 115110 www.bilzin.com Page 2 January 4, 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 2009 tax payment to Miami -Dade County, totaling $597,768.77. 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. Sincerely, erry . Proctor JBP:id cc: Thomas Vageline, Planning Director Laurence Feingold, Esq., City Attorney Max Mohler Allen Eagleson Allison Schmitt MIAMI 1721319.3 7681329325 2 115110 BILZIN SUMBERG BAENA PRICE & AXELROD LLP .47 EXHIBIT "M" PDAmetleaM, CITY OF SOUTH -MIAMI 1 OFFICE OF THE CITY MANAGER INTER-OFFICE MEMORANDUM 2001 To: The Honorable Mayor Stoddard and Memb s of City Commission Via: Roger M. Carlton, Acting City Manager From: Thomas J. Vageline, Director Planning and Zoning Departmen u(� 6 Date: March 2, 2010 ITEM NO. Subject: Annual Report required by the First on Sunset Project (aka Project Sunset) Development Agreement submitted by Jerry Proctor, Esq, representing project developer and property owner South Miami Corporation. 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. The name of the project has been changed to "First on Sunset ". PROJECTSTATUS 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). In March, 2009 the City Commission did consider an ordinance which would have revoked the Development Agreement due to a failure to comply with the conditions of the Agreement, specifically, failure to file the agreement document in County public records within a prescribed time period. This ordinance was not approved at the City Commission meeting on March 3, 2009. ANNUAL REPORT 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 2010 Annual report was submitted to the City on January 5, 2010. 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 2 failure to comply with the terms of the-Development Agreement, the Agreement may be revoked or modified by the City. ADMINISTIgATI ®N RECmit MENDATI ®N 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 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. Attachments: Annual Report from developer 114110 Development Agreement VVISAYX (Comm ltems1201013- 2- 101Rank Project Annual Rep 2010 CMreport.doc y B Rzin Sumberg ATTO P, N E YS AT L A W J64N 0 5 2rzi Planning and.,,- Via Hand Delivery Dr. Hector Mirabile City Manager City of South Miami 6130 Sunset Drive South Miami, Florida 33143 Dear Dr. Mirabile: EXHIBIT "N" December 29, 2010 Jerry B, Proctor, Esq. Tel 305.350.2361 Fax 305.351.2250 jproctor @bilzin.com x Wagg-1101p L' Re: South Miami Corporation Property. 5750 Sunset Drive and 1 -112 blocks to the south and southwest, City of South Miami Tax Folio /lumbers: 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 305374.7580 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. Sincerely, XAZI Jerry B. Proctor JBP:id cc: Thomas Vageline, Planning Director Laurence Feingoid, Esq., City Attorney Max Mohler Bruce MacArthur MIAMI 2382936.1 731901 3706 12/29/10 ." SILZIN SUMSERG SAENA PRICE & AXELROD LLP EXHIBIT 66W CITY OF SOUTH MIAMi OFFICE OF THE CITY MANAGER INTER - OFFICE MEMORANDUM To: The Honorable Mayor Stoddard and Via: Hector Mirabile, Ph.D., City M From: Thomas J. Vageline, Director Planning and Zoning Departn Date: February 1, 2011 ith Miami AU•AmenceCitV 0 2007 of the City Commission 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 Rank 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. PROJECTSTATUS 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 REPORT 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 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 � -'iure 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 apart 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 ltems1201112- 1- 110ank Project Annual Rep 2011 CM report.doc 1 2 RESOLUTION NO. 4 A Resolution of the Mayor and City Commission of the City of South Miami, Florida 5 relating to the review and acceptance of the Annual Report of the South Miami Corporation 6 (First National Bank of South Miami) on their proposed "Project Sunset" located at 5750 7 Sunset Drive; said report required by Section 27 of a Development Agreement executed 8 between the City of South Miami and the South Miami Corporation by the adoption of 9 Ordinance No. 05-05 -1827; and providing an effective date. 10 11 WHEREAS, in March, 2005 the City Commission approved a mixed use project 12 entitled "Project Sunset" located at 5750 Sunset Drive, which project is a unified development 13 covering 2 -1/2 blocks (4.5 acres) in the Hometown District and includes 108 residential units and 14 87,212 square feet of commercial space.; and 15 16 WHEREAS, a Development Agreement was executed between the City of South 17 Miami and the South Miami Corporation by the adoption of Ordinance No. 05 -05 -1827 in March 18 2005 and is legally considered effective for a maximum period of 10 years from the effective 19 date of February 7, 2008; and 20 21 WHEREAS, the Development Agreement includes the requirement (Section 27, 22 p.13) that the developer submit an annual report 30 days before the anniversary of the effective 23 date which report is a status report showing that obligations have been met and that there has been 24 compliance with the provisions of the Agreement.; and 25 26 WHEREAS, the 2011 Annual report was submitted to the City on January 5, 2011; 27 and in the form of a two page communication from Jerry Proctor, Esq., representing the developer, 28 South Miami Corporation, said report concluding . that all of the obligations set forth in the 29 Development Agreement are met and that due to economic and market considerations the project 30 has not commenced; and 31 32 WHEREAS, the annual report in accordance with the Development Agreement 33 must be reviewed by the City Commission at a public meeting and the City Commission may 34 accept the report or if there is a finding by the Commission that there has been a failure to comply 35 with the terms of the Development Agreement, the Agreement may be revoked or modified by the 36 City. 37 38 NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY 39 COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA: 40 41 Section 1. The 2011 Annual Report of the South Miami Corporation (First National 42 Bank of South Miami) on their proposed "Project Sunset" located at 5750 Sunset Drive as required 43 by Section 27 of Development Agreement is accepted. 44 45 Section 1 This resolution shall be effective immediately upon being approved. 46 47 48 49 1 2 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 41 42 43 44 45 46 47 48 49 50 51 PASSED AND ADOPTED this ATTEST: 2 , day of 2011 I suffis]II0�71 CITY CLERK MAYOR Commission Vote: READ AND APPROVED AS TO FORM Mayor Stoddard: AND SUFFICIENCY: Vice Mayor Newman: Commissioner Palmer: Commissioner Beasley: Commissioner Harris: CITY ATTORNEY X \Comm Items12011\2 -1 -11 \Bank Project Annual Report 2011 Resolution.doc