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9TO: CITY OF SOUTH MIAMI INTER-OFFICE MEMORANDUM Hon. Mayor, Vice Mayor and Commissioners Date: August 1,2012 FROM: Thomas F. Pepe City Attorney Subject: Development Agreement Resolution RE: Metro South Senior Apartments Limited Partnership A Resolution to consider the adoption of a development agreement proposed by Metro South Senior Apartments Limited Partnership, pursuant to sec.70.51 and 163.3225, Fla. Stat., for the construction of commercial space and 91 affordable senior apartments at 6101 Sunset Drive, South Miami, Florida, which will require concessions, including parking and height variances and which will either be rejected, accepted or accepted with amendments. Metro South Senior Apartments Limited Partnership, a Florida Limited Partnership ("Metro South"), requested relief under the Florida Land Use and Environmental Dispute Resolution Act, Fla. Stat. §70.S1 (2011) ("FLUEDRA") from the March 20,2012 action of the City of South Miami's ("City") denial of Metro South's application for a zoning boundary change concerning a split zoning condition on property located at 6101 Sunset Drive. The subject property is comprised of three adjoining lots, located at the comer ofS.W. 61 st Avenue and Sunset Drive. The southern lot fronting on Sunset Drive and the middle lot are both zoned MU-S. The rear or northern most lot falls within the boundary of the MU-4 zoning category, which limits development to a height of two stories. This property is surrounded on all sides by areas within the MU-S boundary (permitting up to 8 stories) and Medium Intensity Office ("MO") areas which permit up to 4 stories. Metro South's application carne before the City planning staff and representatives of Metro South, the Commission voted 4-1 in favor of granting the application. The denial was unreasonable from a land planning perspective. By its action, the City unreasonably refused to rectify an obvious and undesirable land planning anomaly caused by location of the boundary between MU-4 and MU-S within a city block already surrounded by higher existing development and higher allowable development. Aside from the negative aesthetics of the resulting neighborhood "canyon", perpetuation of the split zoning causes design constraints that unreasonably impair the ability of Metro South to provide affordable apartments of industry standard size. See Attachment A which is the final proposal made by Metro South after its review of the City's suggested changes. In addition, Metro South has made the following proposals for changes to the development agreement: Metro South deliversed all the exhibits with labels to the City Clerk's office which should include a letter size set of the exhibits (so they can be appended to the attached Agreement). Also included should be a full size plan pages for the survey (Exhibit A) and site plan documents (Exhibit B) with corresponding labels, in case that makes it easier for viewing. Metro South believes that the residential parking ratio in Metro South's proposed agreement could be raised to 1.0 (ensuring one space for each of the 91 units), and the commercial space could be reduced by 1,200 square feet to accomplish this. This would leave 91 spaces for the residential and 15 spaces for the ground floor commercial. According to Metro South, this might mean some parking spaces go unused (research indicates much lower parking ratios are necessary to supply adequate parking for senior housing), it would raise the residential ratio to 1.0, albeit at the expense of commercial space. If this were more desirable to the city, paragraph 6(a) could read: (a) Residential Parking Adjustment. The Commission hereby approves the parking depicted in Exhibit B to include a total of 106 spaces, 91 of which are for the 91 dwelling units proposed (reflecting a residential parking ratio of 1.0 instead of 2.0) and 15 of which will meet commercial parking requirement for 1,445 square feet of commercial square footage located on the ground floor. Metro South also proposes that another solution might be to keep the commercial square footage at the originally proposed 2,645 square feet but concur that the applicable commercial parking ratio is 1 space per 400 square feet instead of 1: 100 that was assumed originally. (Metro South designed for the most demanding commercial ratio, even though actual tenants who might occupy the space might qualify for the 1 :400 ratios). If the lower commercial ratio applied, even more spaces could be devoted to the residential ratio. The City's Chief Financial Officer has expressed concerns with section 10 concerning Taxation. He does not feel that the provision substituted by Metro South in place of the City's suggested language found in Attachment B ("Taxation. In the event that the developer changes to a non-profit ownership entity, Developer shall not apply for any exemption that affects the taxable value of the property.") and if the ownership/developer does apply to the IRS to be designate as a 501c3 and meets the federal qualifications and if it is ultimately designated a 501 c3 and then supplies/applies to the County property appraiser the federally issued 501c3, and they meet the other state requirements, the County property appraiser has no jurisdiction to deny their request and will treat them and the property as such. A PILOT may be an option. He has otherwise approved the resolution from a financial standpoint. See Attachment B which contains modification and suggestions by the Director of Planning and Zoning, various commissioner members and comments by the City's Building Director. The most significant concern of the City's Building Director is the inability to meet a date certain for the issuance of a building permit by his office. In addition, Standard permit fees usually collected by the Building Department WILL NOT BE WAIVED for work done by independent contractors. All work logs maintained by independent contractors must still be reviewed and approved by City staff. Under no circumstance can the issuance of a building permit can be guarantee by any date, as several aspects of the approval process are controlled by the County Permit Center (PERA) over which the City has no control or authority. The issuance ofa CSM building permit by September 15, 2012 CAN NOT be guaranteed by the Building Department as there are multiple concurrent approvals required by entities not under the department's control, including DERM, WASA and Fire departments of Miami-Dade County not under the City's control. The Planning and Zoning Director gave the following information to the Developer: On May 18,2012 Beneficial Communities was given the information that was previously provided to Mr. Dusan Peric with Beneficial Communities, regarding the requirements for preliminary and final review by the Environmental Review and Preservation Board (ERPB). It was advised that this Board acts in the capacity similar to a Board of Architects. At that time a copy of the ERPB application was attached to an e-mail to it. FedEx delivered the preliminary plans to the Director's office. On April 18, 2012 Beneficial Communities was strongly urged to complete the preliminary (architectural) approval before submitting for final because if the Board requires changes or amendments to the architectural submittals, these changes will have to be reflected in the final construction drawings before it could proceed to permit. Beneficial was advised that, in the past, the Board has deferred reviews and approvals to subsequent meeting dates until their recommended changes or conditions are incorporated. It was also advised that should it decide to go to final review, it would also be required to provide the following In addition to the requirements that were previously sent to them: 1. Electrical, Mechanical (HV AC), Plumbing and Structural plans (MEPS) (8-sets) 2. All energy computations 3. Digital Copy of the submittal in a PDF format, to include all materials consistent with your entire hardcopy submittal. Attachments: Attachment A -Metro South's Proposed Development Agreement Attachment B -Development Agreement with Additional provisions supplied by various commissioners, city staff, including City Planning and Zoning Director and Comments by City Building Director. Attachment C -LDC, 20-8.8 Parking Attachment D -Comparison between Attachment A and B ATTACHMENT A DEVELOPMENT AGREEMENT THIS DEVELOPMENT AGREEMENT ("Agreement") is made and entered into this __ day of ,2012, by and between the CITY OF SOUTH MIAMI, a Florida municipal corporation ("City) and METRO SOUTH SENIOR APARTMENTS LIMITED PARTNERSHIP, a Florida Limited Partnership ("Developer") for the purposes of implementing the resolution of a land use dispute pursuant to § 70.51 Florida Statutes (2012), the Florida Land Use and Environmental Dispute Resolution Act ("FLUEDRA"), and establishing the development rights and obligations of the Developer for certain real property located within the City in accordance with the applicable provisions of §§ 163.3220 -163.3243, Florida Statutes (2012) ("the Development Agreement Act"). RECITALS WHEREAS, Developer is the equitable owner of land located within the City at 6101 Sunset Drive, depicted and legally described in Exhibit "A" attached and incorporated herein (hereafter "Property'), having contracted to purchase same from its present legal owner, 6101 Sunset LLC, for the purpose of developing a senior housing project; and WHEREAS, the City and Developer have participated in a duly noticed FLUEDRA mediation held June 8, 2012, upon the Developer's timely petition for relief concerning the City's March 20,2012 action on Developer's application for a zoning boundary change to rectify a split zoning condition on the Property; and WHEREAS, the § 70.51(17)(a) mediation conducted June 8, 2012 resulted in the mutually acceptable solution of presenting for the City Commission's consideration modifications to Developer's proposed use of the Property intended to address the articulated concerns of the both the City staff and Developer, and accordingly, the presiding Special Magistrate recessed the FLUEDRA proceedings with a recommendation to consider implementation of mutually acceptable modifications by development agreement pursuant to FLUEDRA § 70,51(19)(c) and § 163.3225 of the Development Agreement Act; and WHEREAS, the Site Plan documents attached hereto and incorporated herein as composite Exhibit "B" depict the project modifications developed through the referenced mediation process and were submitted to the City on June 29,2012; and WHEREAS, on July 31, 2012, the City Commission considered entry of this Agreement at a public hearing, after publishing notice of same on or before July 21,2012 and after a Notice of Intent to Consider this Agreement was mailed on July 6, 2012 to the to all property owners, as reflected on the current year's tax roll, lying within 500 feet of the Property (via certified mail to continuous owners); and WHEREAS, on August 7, 2012, the City Commission considered entry of this Agreement at a second public hearing, after publishing notice of same on or before July 27, 2012 and after announcing at the first public hearing the day, time, and place of said second public hearing; and WHEREAS, the City Commission finds that the Property possesses desirable and requisite characteristics to accommodate the 91 unit senior apartment project depicted in the Site Plan documents attached as Exhibit B, and that the project is consistent with the land use designation for the Property under the City's Comprehensive Plan and in keeping with the policies of the Transit Oriented Development District ("TODD") in which the Property is located; and WHEREAS, the Commission further finds that the project depicted in the Site Plan attached as Exhibit B complies with the requirements of the MU-4 and MU-5 zoning requirements applicable to the Property except for the adjustments to height and parking requirements implemented by this Agreement pursuant to FLUEDRA, which the Commission finds to be in the interest of both the City and Developer, to wit: a reduction in residential parking requirements in order to relieve hardship to Developer of meeting parking ratios that substantially exceed industry standards for senior housing and to facilitate the City's request that the Developer provide more street level commercial space and associated parking than originally designed; and an increase from the two story height limitation of MU-4 on the north side of the proposed building to permit a 4 story to 2 story step-down height transition, in order to facilitate industry standard sizing of the proposed 91 dwelling units, resolve the disputed zoning boundary change for the northern portion of the Property (subject of the instant FLUEDRA petition), and to meet the City's request for a more aesthetic height transition from the MU-5 portions of the Property to adjacent MU-4 district than originally proposed; and WHEREAS, in accordance with Section 70.51 (22), Florida Statutes, this Agreement constitutes the written decision of the City regarding the uses available to the Property; and WHEREAS, Developer agrees that the uses and the terms specified in this Agreement as applied to the Property are acceptable and, upon fulfillment of the terms hereof, resolve the dispute raised in its FLUEDRA petition; and NOW, THEREFORE, the City and Developer, for $10.00 and other good and valuable consideration, including the terms and conditions of the Agreement, the receipt and sufficiency of which is acknowledged by each party, hereby agree as follows: 1. Recitals. The above recitals are true and correct, and incorporated herein and made part of this Agreement. 2. Exhibits. All Exhibits to this Agreement are incorporated in and made part of this Agreement. 3. Intent. It is the intent of the City and Developer that this Agreel1)ent shall be adopted in conformity with the FLUEDRA and the Development Agreement Act and should be construed and implemented so as to effectuate the purpose and intent of those Acts. 4. Comprehensive Plan Consistency. The City Commission has determined that the mixed uses permitted by this Agreement would be consistent with the Future Land Use designation of the Property and would promote the policies of the City's Comprehensive Plan and the City's Transit Oriented Development District ("TODD"). 5. Current Zoning. The Property is comprised of three contiguous platted lots and lies within the City's TODD boundary. The southernmost lot fronting on Sunset Drive and the center lot are presently zoned MU-5, and the northernmost lot is zoned MU-4. 6. Zoning Consistency. The City and Developer agree that the zoning consistency of the Site Plan attached hereto as Exhibit B is to be determined according to the City zoning regulations in effect on March 20, 2012, the date of government action subject of Developer's FLUEDRA petition. The City Commission has determined that the mixed uses permitted by this Agreement are consistent with the MU-5 and MU-4 zonings so applicable, except that certain mutually beneficial adjustments to residential parking and height requirements are appropriate and permissibly approved upon entry of this Agreement under FLUEDRA § 70.51(19)-(21). Specifically, the City Commission has determined that the following adjustments are appropriate under the facts and circumstances: (a) Residential Parking Adjustment. The Commission hereby approves the parking depicted in Exhibit B to include a total of 106 spaces, 79 of which are for the 91 dwelling units proposed (reflecting a residential parking ratio of .87 instead of 2.0) and 27 of which will meet commercial parking requirement for 2,645 square feet of commercial square footage located on the ground floor. (b) Northern Lot (MU-4) Height Adjustment. The Commission hereby approves the northern lot height increase depicted on Exhibit B to permit approximately 4 stories in height (52'), stepping down to 2 stories at the northern wall. 7. Site Plan Approval. Entry of this agreement shall constitute final site plan approval of the Site Plan attached as Exhibit B, and the Developer may proceed to obtain building permits for construction in substantial compliance therewith in accordance with City zoning and building regulations in effect as of March 20,2012. 8. Concurrency. The Developer shall meet City concurrency infrastructure requirements applicable as of March 20, 2012, if any, necessary for construction of the project depicted in Exhibit B including, but not limited to traffic, water, sewer, roads and drainage. Upon issuance of a certificate of occupancy, the Developer shall pay the sum of $30,000.00 to the City in full satisfaction of Developer's contribution obligations for parks I open space, if any, for the affordable housing project depicted in Exhibit B. a. Drainage. The Developer shall provide drainage as required by law in accordance with the Rules of the Department of Environmental Regulation and the South Florida Water Management District and the regulations of the City's Code. b. Water and Sanitary Sewer. As required by law, the Developer shall comply with the requirements of the City's Water utility provisions of water and sewer services. c. Water and Sanitary Sewer Distribution Lines. Developer is responsible for construction of water and sanitary sewer distribution lines, collection lines, pump stations, lift stations and fire hydrants within the boundaries of the Property. Such construction shall be undertaken in accordance with the City's standards and specifications and shall be inspection and approved by the City. d. Solid Waste Collection. The Developer shall provide waste collection service to the Property through a solid waste collection franchise previously approved by the City e. Law Enforcement. The City provides police service to the Property. f. Fire Rescue and Emergency Medical Services. Miami-Dade County provides fire rescue and emergency medical services to the Property. g. Traffic. The City is responsible for Levels of Service and concurrency determinations for local City roadways. The Developer shall meet traffic requirements of the City's code as applicable on the effective date of this Agreement. h. Landscaping. Landscaping on the property shall be in substantial compliance with the landscape plan attached hereto as Exhibit C (Landscape Plan). Owner covenants and agrees that it shall, perpetually and at all times, care for and maintain all plants, trees and shrubs in a professional and diligent manner to insure substantial compliance with the Landscape Plan. Owner shall regularly monitor the health and appearance of the landscaping and, where necessary, shall replace dead or permanently damaged plants, trees or shrubs with like or similar plant material to insure substantial compliance with the Landscape Plan. Failure of Owner to comply with this section shall constitute a civil offence enforceable under the Code Enforcement provisions of the City Code. 9. Construction Permitting. Subject to the other provisions of this Agreement, the failure of this Agreement to address a particular permit, condition, term or restriction shall not relieve the Developer of the necessity of complying with the law governing said permitting requirements, conditions, terms or restrictions. The parties agree that the Developer will be required to comply with the City building code and permitting requirements in effect as March 20, 2012, or as otherwise provided by this Agreement. The Developer shall pay fees and costs imposed by the City and Miami-Dade County, if any. 10. Taxation. In the event that the Developer changes to a non-profit ownership entity, Developer shall not apply for any exemption that affects the taxable value of the property. 11. Due Diligence and Time of Essence. The City and Developer acknowledge that time is of the essence in implementing this Agreement and processing related building permits, given the tax credit financed nature of the Developer's proposed project. Upon execution of this Agreement, the City and Developer shall immediately commence all reasonable actions necessary to fulfill their obligations hereunder and likewise agree to use their best efforts to expeditiously process construction permitting. The City further agrees that all necessary plan review inspections will be conducted by the City Building Department on a timely and efficient basis, except that the City agrees to allow the use of qualified independent third party building inspectors (at Developer's expense) to conduct plan reviews and inspections as necessary to comply with the terms of this Agreement and to facilitate the valid issuance of building permits (or a building permit ready letter) for the project depicted in Exhibit B, on or before September 15, 2012. 12. Effective Date. This Agreement shall become effective upon delivery of a copy of this Agreement, signed by the City Manager, to the Developer ("Effective Date"). 13. Duration. The term of this Agreement shall be for a period of 20 years from its Effective Date, unless this Agreement is terminated as provided for herein or extended as may be provided for in Section 163.3229, Florida Statutes. Any amendments to the Agreement within the term shall comply with the statutory requirements of Section 163.3220-3243, Florida Statutes. 14. Recording. The City shall record a copy of this Agreement in the public records of Miami-Dade County as soon as practicable after its execution by the City Manager and the Developer (and in any event, within 14 days of adoption by the Commission) and shall also submit a copy to the Florida Department of Economic Opportunity within 14 days of recordation. If this Agreement is amended, extended, terminated, revoked, or nullified, the Clerk shall have notice of such action recorded in the public records and such recorded notice shall be submitted to the Florida Department of Economic Opportunity. 15. Termination. The Developer may terminate this Agreement upon written notice if building permits (or a building permit ready letter) are not issued by September 15, 2012 or if for any reason beyond Developer's control it is unable to close on the purchase of the Property from its present legal owner. This Agreement may otherwise be terminated by mutual written consent of the parties pursuant to the same the notice requirements for the initial adoption of a development agreement. 16. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the City and the Developer, as well as their respective successors in interest and assigns. In the event of an Assignment of this Agreement, the Developer shall provide notice to the City as provided herein. 17. Governing Law. This Agreement shall be governed by the laws of the State of Florida, and judicial venue for any actions between the parties arising from this Agreement shall be in Miami-Dade County, Florida. 18. Enforcement. In the event the Board or the Developer is required to seek enforcement of the provisions of this Agreement, the prevailing party shall be entitled to recover from the other party all costs of such action, including reasonable attorney's fees. 19. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original. 20. Construction. This Agreement shall be construed as the joint and equal work product of the parties and shall not be construed more or less favorably on account of its preparation. 21. Entire Agreement. This Agreement constitutes the entire Agreement between the parties relating to the subject matter hereof and is the only agreement reached concerning the Site Plan attached as Exhibit B. All preceding discussions pertaining to the development of the Property as depicted in Exhibit B were had pursuant to law and subject to full consideration by the City Commission at duly noticed public hearings. 22. Notices. The parties designate the following persons as representatives to be contacted and to receive notices, if any, regarding this Agreement. For the City: with a copy to: City Manager 6130 Sunset Drive South Miami, FL 33143 City Attorney 6130 Sunset Drive South Miami, FL 33143 For the Developer: with a copy to: Metro South Senior Apartments Limited Partnership Mr. Donald Paxton 2206 Jo An Drive Sarasota, FL 33231 [REMAINDER OF PAGE LEFT BLANK. SIGNATURE PAGE FOLLOWS] IN WITNESS WHEREOF, the parties hereto have caused the execution of this Agreement by their duly authorized officials as of the day and year first above written. Signed, sealed and delivered in the presence of: Print Name: _______ _ Print Name: _______ _ STATE OF FLORIDA COUNTY OF MIAMI-DADE Metro South Senior Apartments Limited Partnership, a Florida limited partnership 8y: __________ _ Name: ---------Title: ________ _ The foregoing instrument was acknowledged before me this _ day of , 2012, by , as of Metro South Senior Apartments Limited, a Florida limited partnership, who is personally known to me, or who has produced _______ _ as identification and who did/_ not take an oath. Notary Seal Notary Public, State of Florida Print Name:, _________ _ My Commission Expires: _____ _ *** NO FURTHER TEXT ON THIS PAGE*** Attested: ~ Maria Menendez City Clerk Witness ---------------------- Witness ---------------------- STATE OF FLORIDA COUNTY OF MIAMI-DADE CITY OF SOUTH MIAMI By ____________________ _ Hector Mirabile, PhD. City Manager Approved as to form, language, legality and execution thereof: By Thomas F. Pepe City Attorney The foregoing instrument was acknowledged before me this _ day of , 2012, by Hector Mirabile, PhD., as City Manager of the City of South Miami, on behalf of City Commission, who is personally known to me. Notary Public, State of Florida My Commission Expires: ATTACHMENT B DEVELOPMENT AGREEMENT THIS DEVELOPMENT AGREEMENT ("Agreement") is made and entered into this __ day of ,2012, by and between the CITY OF SOUTH MIAMI, a Florida municipal corporation ("City) and METRO SOUTH SENIOR APARTMENTS LIMITED PARTNERSHIP, a Florida Limited Partnership ("Developer") for the purposes of implementing the resolution of a land use dispute pursuant to § 70.51 Florida Statutes (2012), the Florida Land Use and Environmental Dispute Resolution Act ("FLUEDRA"), and establishing the development rights and obligations of the Developer for certain real property located within the City in accordance with the applicable provisions of §§ 163.3220 -163.3243, Florida Statutes (2012) ("the Development Agreement Act"). RECITALS WHEREAS, Developer is the equitable owner of land located within the City at 6101 Sunset Drive, depicted and legally described in Exhibit "A" attached and incorporated herein (hereafter "Property'), having contracted to purchase same from its present legal owner,6101 Sunset LLC, for the purpose of developing a senior housing project; and WHEREAS, the City and Developer have participated in a duly noticed FLUEDRA mediation held June 8, 2012, upon the Developer's timely petition for relief concerning the City's March 20, 2012 action on Developer's application for a zoning boundary change to rectify a split zoning condition on the Property; and WHEREAS, the § 70.51 (17)(a) mediation conducted June 8, 2012 resulted in the mutually acceptable solution of presenting for the City Commission's consideration modifications to Developer's proposed use of the Property intended to address the articulated concerns of the both the City staff and Developer, and accordingly, the presiding Special Magistrate recessed the FLUEDRA proceedings with a recommendation to consider implementation of mutually acceptable modifications by development agreement pursuant to FLUEDRA § 70,51(19)(c) and § 163.3225 of the Development Agreement Act; and WHEREAS, the Site Plan documents attached hereto and incorporated herein as composite Exhibit "B" depict the project modifications developed through the referenced mediation process and were submitted to the City on June 29, 2012; and WHEREAS, on August 7,2012, the City Commission considered entry of this Agreement at a public hearing, after publishing notice of same on or before August 1, 2012 and ID! mailing a Notice of Intent to Consider this Agreement to the to all property Developersowners, as reflected on the current year's tax roll, lying within 500 feet of the Propertyjyia certified mail to contiguous owners); and WHEREAS, on August 21,2012, the City Commission considered entry of this Agreement at a second public hearing, after publishing notice of same on or before August 10, 2012 and after announcing at the first public hearing the day, time, and place of said second public hearing; and WHEREAS, the City Commission finds that the Property possesses desirable and requisite characteristics to accommodate the 91 unit senior apartment project depicted in the Site Plan documents attached as Exhibit B, and that the project is consistent with the land use designation for the Property under the City's Comprehensive Plan and in keeping with the policies of the Transit Oriented Development District ("TODD") in which the Property is located; and WHEREAS, the Commission further finds that the project depicted in the Site Plan attached as Exhibit B complies with the requirements of the MU-4 and MU-5 zoning requirements applicable to the Property except for the adjustments to height and parking requirements implemented by this Agreement pursuant to FLUEDRA, which the Commission finds to be in the interest of both the City and Developer, to wit: a reduction in residential parking requirements in order to relieve hardship to Developer of meeting parking ratios that substantially exceed industry standards for senior housing and to facilitate the City's request that the Developer provide more street level commercial space and associated parking than originally designed; and an increase from the two story height limitation of MU-4 on the north side of the proposed building to permit a 4 story to 2 story step-down height transition, in order to facilitate industry standard sizing of the proposed 91 dwelling units, resolve the disputed rezoning of the northern portion of the Property--: (subject of the instant FLUEDRA petition), and to meet the City's request for a more aesthetic height transition from the MU-5 portions of the Property to adjacent MU-4 district than originally proposed; and WHEREAS, in accordance with Section 70.51 (22), Florida Statutes, this Agreement constitutes the written decision of the City regarding the uses available to the Property; and WHEREAS, Developer agrees that the uses and the terms specified in this Agreement as applied to the Property are acceptable and, upon fulfillment of the terms hereof, resolve the dispute raised in its FLUEDRA petition; and NOW, THEREFORE, the City and Developer, for $10.00 and other good and valuable consideration, including the terms and conditions of the Agreement, the receipt and sufficiency of which is acknowledged by each party, hereby agree as follows: 23. Recitals. The above recitals are true and correct, and incorporated herein and made part of this Agreement. 24. Exhibits. All Exhibits to this Agreement are incorporated in and made part of this Agreement. 25.lntent. It is the intent of the City and Developer that this Agreement shall be adopted in conformity with the FLUEDRA and the Development Agreement Act and should be construed and implemented so as to effectuate the purpose and intent of those Acts. 26. Comprehensive Plan Consistency. The City Commission has determined that the mixed uses permitted by this Agreement would be consistent with the Future Land Use designation of the Property and would promote the policies of the City's Comprehensive Plan and the City's Transit Oriented Development District ("TODD"). 27. Current Zoning. The Property is comprised of three contiguous platted lots and lies within the City's TODD boundary. The southernmost lot fronting on Sunset Drive and the center lot are presently zoned MU-5, and the northernmost lot is zoned MU-4. 28.Zoning Consistency. The City and Developer agree that the zoning consistency of the Site Plan attached hereto as Exhibit B is to be determined according to the City zoning regulations in effect on March 20, 2012, the date of government action subject of Developer's FLUEDRA petition. The City Commission has determined that the mixed uses permitted by this Agreement are consistent with the MU-5 and MU-4 zonings so applicable, except that certain mutually beneficial adjustments to residential parking and height requirements are appropriate and permissibly approved upon entry of this Agreement under FLUEDRA § 70.51 (19)-(21). Specifically, the City Commission has determined that the following adjustments are appropriate under the facts and circumstances: (a) Residential Parking Adjustment. The Commission hereby approves the parking depicted in Exhibit B to include a total of 144-spaces, 117 of which are for the 91 dwelling units proposed (reflecting a residential parking ratio of 1.5 instead of 2.0) and 27 of which will h1eetcornrnerci~:lIpai:kjng reql.litementlrljfor 2,645 of commercial square footage located on the ground floor. (b) Northern Lot (MU-4) Height Adjustment. The Commission hereby approves the northern lot height increase depicted on Exhibit B to permit 4 stories (50), stepping down to 2 stories at the northern wall. 29. Site Plan Approval. The site plan shall comply with the approval process in accordance with City zoning and building regulations in effect as of March 20, 2012 as modified by this agreement. -3{hConcurrency. The Developer shall meet City concurrency infrastructure requirements applicable as of March 20, 2012, if any, necessary for construction of the project depicted in Exhibit B including, but not limited to traffic, water, sewer, roads and drainage. The Developer shall provide the city with one (1) acre of land, suitable for a park and satisfactory to the City or an amount of money equal to the average assessed value in the City of South Miami of one (1) acre of land a. Drainage. The Developer shall provide drainage as required by law--aoo in accordance with the Rules of the Department of Environmental Regulation and the South Florida Water Management District and the regulations of the City's Code. b. Water and Sanitary Sewer. Water and sanitary sewer service aSJequir~d by law and=Developer shall comply with the requirements of JHe·W~teFutility i (1z~provisions of water and sewer services_ c. Water and Sanitary Sewer Distribution Lines. Developer is responsible for construction of water and sanitary sewer distribution lines, collection lines, pump stations, lift stations and fire hydrants within the boundariesoft~eProPf3rty. Such construction shall be undertaken in accordance with the p.ol..il1tY.$tand~rd$1 [I3land specifications and shall be inspection and approved by the City. d. Solid Waste Collection. The Developer shall provide waste collection service to the Property through a solid waste collection franchise previously approved by the City-;- e. Law Enforcement. The City provides police service to the Property. f. Fire Rescue and Emergency Medical Services. Miami-Dade County provides fire rescue and emergency medical services to the Property. g. Traffic. The City is responsible for Levels of Service and concurrency determinations for local City roadways. The Developer shall meet traffic requirements of the City's code as applicable on the effective date of this Agreement. h. Construction Permitting. Subject to the other provIsions of this Agreement, the failure of this Agreement to address a particular permit, condition, term or restriction shall not relieve the Developer of the necessity of complying with the law govern.ing said permitting requirements, conditions, terms or restrictions. The parties agree that the Developer will be required to comply with the apt;mcabJe bujldihgcod~:h4]and permitting requirements in effect as March 20, 2012~ or as otherwise provided by this 8greement. The Developer shall pay fees and costs imposed by the City and Miami-Dade County, if any. 31. Land Development Code. The provisions of the City's current Land Development Code, including section 20-8.9, shall apply to this agreement, with the exception of review by the City's Planning Board, and unless otherwise provided in this Agreement. The City Commission shall be responsible for all reviews that section 20-8.9 requires. The Developer shall also comply with all other site plan review and revisions including the City's Environmental Review and Preservation Board ("ERPB"). 32. Taxation: The Developer shall not apply for any exemption that affects the taxable value of the property. In any event, the Developer agrees to pay the City any difference in the City's share of the ad valorem taxes that may result from an appraisal of the property on any basis other than one that is based on the highest and best use of the property. In the event that the property becomes exempt from taxation, the owner agrees to pay the same amount as would have been the City's share of the ad valorem taxes, based on the highest and best uses of the property, as the City would have received had the property not become tax exempt. 33. ~Due Diligence and Time of Essence. The City and Developer acknowledge that time is of the essence in implementing this Agreement and processing related building permits, given the tax credit financed nature of the Developer's proposed project. Upon execution of this Agreement, the City and Developer shall immediately commence all reasonable actions necessary to fulfill their obligations hereunder and likewise agree to use their best efforts to expeditiously process construction permitting. The City further agrees that all necessary plan review and inspections will be conducted by the City Building Department on a timely and efficient basis to facilitate the valid issuance of building permits for the project depicted in Exhibit B. 34. Effective Date. This Agreement shall become effective upon delivery of a copy of this Agreement, signed by the City Manager, to the Developer ("Effective Date"). 35. Duration. The term of this Agreement shall be for a period of 20 years from its Effective Date, unless this Agreement is terminated as provided for herein or extended as may be provided for in Section 163.3229, Florida Statutes. Any amendments to the Agreement within the term shall comply with the statutory requirements of Section 163.3220-3243, Florida Statutes. 36. Recording. The City shall record a copy of this Agreement in the public records of Miami-Dade County as soon as practicable after its execution by the City Manager and the Developer (and in any event, within 14 days of adoption by the Commission) and shall also submit a copy to the Florida Department of Economic OpportuJ2l!y within 14 days of recordation. If this Agreement is amended, extended, terminated, revoked, or nullified, the Clerk shall have notice of such action recorded in the public records and such recorded notice shall be submitted to the Florida Department of Economic Oppo~. 37. Termination. The Developer may terminate this Agreement upon written notice if building permits (or a building permit ready letter) are not issued by September 15, 2012 or if for any reason beyond Developer's control it is unable to close on the purchase of the Property from its present legal owner. This Agreement may otherwise be terminated by mutual written consent of the parties pursuant to the notice requirements contained in this Agreement. 38. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the City and the Developer, as well as their respective successors in interest and assigns and all future owners of the property for the term of this agreement. In the event of an Assignment of this Agreement, the Developer shall provide notice to the City as provided herein. 39. Governing Law. This Agreement shall be governed by the laws of the State of Florida, and judicial venue for any actions between the parties arising from this Agreement shall be in Miami-Dade County, Florida. 40. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original. 41. Construction. This Agreement shall be construed as the joint and equal work product of the parties and shall not be construed more or less favorably on account of its preparation. 42. Entire Agreement. This Agreement constitutes the entire Agreement between the parties relating to the subject matter hereof and is the only agreement reached concerning the Site Plan attached as Exhibit B. All preceding discussions pertaining to the development of the Property as depicted in Exhibit B were had pursuant to law and subject to full consideration by the City Commission at duly noticed public hearings. 43. Notices. The parties designate the following persons as representatives to be contacted and to receive notices, if any, regarding this Agreement. For the City: with a copy to: For the Developer: with a copy to: City Manager 6130 Sunset Drive South Miami, FL 33143 City Attorney 6130 Sunset Drive South Miami. FL 33143 Metro South Senior Apartments Limited Partnership Mr. Donald Paxton 2206 Jo An Drive Sarasota, FL 33231 [Attorney] [address] IN WITNESS WHEREOF, the parties hereto have caused the execution of this Agreement by their duly authorized officials as of the day and year first above written. Signed, sealed and delivered in the presence of: Print Name: _______ _ Print Name: -------- STATE OF FLORIDA COUNTY OF MIAMI-DADE Metro South Senior Apartments Limited Partnership, a Florida limited partnership By: ________ ---,-__ Name: _______ _ Title: ________ _ The foregoing instrument was acknowledged before me this _ day of ,2012, by , as of Metro South Senior Apartments Limited, a Florida limited partnership, who is personally known to me, or who has produced _______ _ as identification and who did/_ not take an oath. Notary Seal Notary Public, State of Florida Print Name: ----------My Commission Expires: _____ _ *** NO FURTHER TEXT ON THIS PAGE*** Attested: Maria Menendez City Clerk Witness ----------------------- Witness. ______________________ _ STATE OF FLORIDA COUNTY OF MIAMI-DADE CITY OF SOUTH MIAMI By ____________________ ___ Hector Mirabile, PhD. City Manager Approved as to form, language, !§gplity and execution thereof: By Thomas F. Pepe City Attorney The foregoing instrument was acknowledged before me this _ day of , 2012, by Hector Mirabile, PhD., as City Manager of the City of South Miami, on behalf of City Commission, who is personally known to me. Notary Public, State of Florida My Commission Expires: ATTACHMENT C 20-8.8 -Parking. (A) T.O.D.D. Parking Regulations. Parking in the T.O.D.D. must be developed and managed primarily as an element of infrastructure critical to enhancing South Miami's tax base through economic success of the district. The Hometown District Parking Committee shall be charged with oversight of the supply, convenience, safety, and management of parking shall also be responsible for this district as well. (8) Required Parking. Within the T.O.D.D. District, the following adjustments to the number of parking spaces required by Section 20-4.4 (8) of the Code are provided: 1. Parking requirements, adjustments or bonus as indicated in the bonus allocation section (section 20-S.1 0). 2. All parking to be located at the rear of building. If not feasible, then the side of the building, but as noted in this section. 3. Parking spaces on the streets in front of property may be counted toward parking requirement. . 4. 70% of required parking must be on-site, except as otherwise permitted by section 20- 4.4. 5. Off-site parking permitted with contractual obligations or in accordance with section 20- 4.4, except that the required covenant may be a long-term lease. That lease shall not be required to be longer than thirty (30) years. 6. Parking fees shall be permitted under the ordinance. 7. Off-site parking is permitted in accordance with section 20-4.4. In addition, the distance requirement shall be amended to allow for any location within the boundaries of this district. S. No open air storage of vehicles is permitted. (C) Required Parking Uses. 1. Residential: A minimum of two (2) cars per unit is required for residential uses. 2. Commercial/Retail: One (1) space per 150 sq. ft. to 400 sq. ft. of gross floor area (see schedule section 20-7.12A). 3. Office: One (1) space per 200 sq. ft. to 400 sq. ft. of gross floor area (see schedule section 20-7.128). 4. Light Industrial: (a) One space per 100 sq. ft. to 1,000 sq. ft. (See schedule section 20-3.3 and 20- 4.4). (b) No parking of vehicles in driveway at any time. (c) In any area with light industrial uses, any vehicle under repair must be stored inside buildings at all times. (d) For light industrial uses, any garage areas must be totally enclosed and have garage doors closed when not in use. (D) Garages in MU-5. 1. At the rear of the property you may eliminate the setback requirement for garages only, if garage: backs to existing garage backs to permanent open space 2. May face Side Street but must have some fenestration as the rest of the building. 3. Underground parking defined as having more than sixty (60) percent of its structure below grade. 4. Garage structures must be designed or landscaped so as to either appear to be a floor of the building or obstructed from street view. 5. All garages must be at the rear of the building as required by subsection 20-8.8(8)(2). 6. The regulations for arcades or awnings shall apply to all garages. The ground floor on the sides facing any street shall contain any uses indicated on the permitted ground floor uses in section 20-8.5. Any exterior facing streets shall be designed to look similar to the facade of a commercial office building, unless amended by the city commission via special use permit procedures. 7. Freestanding garages, not to exceed six (6) levels in height, may be permitted on any site within the district (MU-5). (Ord. No. 9-97-1630, § 1,4-1-97; Ord. No. 14-07-1915, § 1, 6-5-07) ATTACHMENT D DEVELOPMENT AGREEMENT THIS DEVELOPMENT AGREEMENT ("Agreement") is made and entered into this __ day of ,2012, by and between the CITY OF SOUTH MIAMI, a Florida municipal corporation ("City) and METRO SOUTH SENIOR APARTMENTS LIMITED PARTNERSHIP, a Florida Limited Partnership ("Developer") for the purposes of implementing the resolution of a land use dispute pursuant to § 70.51 Florida Statutes (2012), the Florida Land Use and Environmental Dispute Resolution Act ("FLUEDRA"), and establishing the development rights and obligations of the Developer for certain real property located within the City in accordance with the applicable provisions of §§ 163.3220 -163.3243, Florida Statutes (2012) ("the Development Agreement Act"). RECITALS WHEREAS, Developer is the equitable owner of land located within the City at 6101 Sunset Drive, depicted and legally described in Exhibit "A" attached and incorporated herein (hereafter "Property'), having contracted to purchase same from its present legal owner,_6101 Sunset LLC, for the purpose of developing a senior housing project; and WHEREAS, the City and Developer have participated in a duly noticed FLUEDRA mediation held June 8, 2012, upon the Developer's timely petition for relief concerning the City's March 20, 2012 action on Developer's application for a zoning boundary change to rectify a split zoning condition on the Property; and WHEREAS, the § 70.51(17)(a) mediation conducted June 8, 2012 resulted in the mutually acceptable solution of presenting for the City Commission's consideration modifications to Developer's proposed use of the Property intended to address the articulated concerns of the both the City staff and Developer, and accordingly, the presiding Special Magistrate recessed the FLUEDRA proceedings with a recommendation to consider implementation of mutually acceptable modifications by development agreement pursuant to FLUEDRA § 70,51(19)(c) and § 163.3225 of the Development Agreement Act; and WHEREAS, the Site Plan documents attached hereto and incorporated herein as composite Exhibit "8" depict the project modifications developed through the referenced mediation process and were submitted to the City on June 29,2012; and WHEREAS, on August 7,July 31,2012, the City Commission considered entry of this Agreement at a public hearing, after publishing notice of same on or before August 1July 21, 2012 and ~ mailingafter a Notice of Intent to Consider this Agreement was mailed on July 6,2012 to the to all property Developersownersowners, as reflected on the current year's tax roll, lying within 500 feet of the Property (via certified mail to contiguous owners); and WHEREAS, on August 24Z, 2012, the City Commission considered entry of this Agreement at a second public hearing, after publishing notice of same on or before August -1-QJuly 27, 2012 and after announcing at the first public hearing the day, time, and place of said second public hearing; and WHEREAS, the City Commission finds that the Property possesses desirable and requisite characteristics to accommodate the 91 unit senior apartment project depicted in the Site Plan documents attached as Exhibit B, and that the project is consistent with the land use designation for the Property under the City's Comprehensive Plan and in keeping with the policies of the Transit Oriented Development District ("TODD") in which the Property is located; and WHEREAS, the Commission further finds that the project depicted in the Site Plan attached as Exhibit B complies with the requirements of the MU-4 and MU-5 zoning requirements applicable to the Property except for the adjustments to height and parking requirements implemented by this Agreement pursuant to FLUEDRA, which the Commission finds to be in the interest of both the City and Developer, to wit: a reduction in residential parking requirements in order to relieve hardship to Developer of meeting parking ratios that substantially exceed industry standards for senior housing and to facilitate the City's request that the Developer provide more street level commercial space and associated parking than originally designed; and an increase from the two story height limitation of MU-4 on the north side of the proposed building to permit a 4 story to 2 story step-down height transition, in order to facilitate industry standard sizing of the proposed 91 dwelling units, resolve the disputed rezoning of zoning boundary change for the northern portion of the Property -;-(subject of the instant FLUEDRA petition), and to meet the City's request for a more aesthetic height transition from the MU-5 portions of the Property to adjacent MU-4 district than originally proposed; and WHEREAS, in accordance with Section 70.51 (22), Florida Statutes, this Agreement constitutes the written decision of the City regarding the uses available to the Property; and WHEREAS, Developer agrees that the uses and the terms specified in this Agreement as applied to the Property are acceptable and, upon fulfillment of the terms hereof, resolve the dispute raised in its FLUEDRA petition; and NOW, THEREFORE, the City and Developer, for $10.00 and other good and valuable consideration, including the terms and conditions of the Agreement, the receipt and sufficiency of which is acknowledged by each party, hereby agree as follows: 1. Recitals. The above recitals are true and correct, and incorporated herein and made part of this Agreement. 2. Exhibits. All Exhibits to this Agreement are incorporated in and made part of this Agreement. 3. Intent. It is the intent of the City and Developer that this Agreement shall be adopted in conformity with the FLUEDRA and the Development Agreement Act and should be construed and implemented so as to effectuate the purpose and intent of those Acts. 4. Comprehensive Plan Consistency. The City Commission has determined that the mixed uses permitted by this Agreement would be consistent with the Future Land Use designation of the Property and would promote the policies of the City's Comprehensive Plan and the City's Transit Oriented Development District ("TODD"). 5. Current Zoning. The Property is comprised of three contiguous platted lots and lies within the City's TODD boundary. The southernmost lot fronting on Sunset Drive and the center lot are presently zoned MU-5, and the northernmost lot is zoned MU-4. 6. Zoning Consistency. The City and Developer agree that the zoning consistency of the Site Plan attached hereto as Exhibit B is to be determined according to the City zoning regulations in effect on March 20, 2012, the date of government action subject of Developer's FLUEDRA petition. The City Commission has determined that the mixed uses permitted by this Agreement are consistent with the MU-5 and MU-4 zonings so applicable, except that certain mutually beneficial adjustments to residential parking and height requirements are appropriate and permissibly approved upon entry of this Agreement under FLUEDRA § 70.51 (19)-(21). Specifically, the City Commission has determined that the following adjustments are appropriate under the facts and circumstances: (a) Residential Parking Adjustment. The Commission hereby approves the parking depicted in Exhibit B to include a total of 444106 spaces, 44779 of which are for the 91 dwelling units proposed (reflecting}re~idential parking ratio of ~.87 instead of 2.0) and 27 of which will ~~eteomfll~rci<:ll pafRil"lg't~q~lr~m~r1[J+5]for 2,645 square feet of commercial square footage located on the ground floor. (b) Northern Lot (MU-4) Height Adjustment. The Commission hereby approves the northern lot height increase depicted on Exhibit B to permit approximately 4 stories twin height (52'), stepping down to 2 stories at the northern wall. 7. Site Plan Approval. =FAeEntrv of this agreement shall constitute final site plan shall comply vvith the approval processof the Site Plan attached as Exhibit B, and the Developer may proceed to obtain building permits for construction in substantial compliance therewith in accordance with City zoning and building regulations in effect as of March 20, 2012 as modified by this agreement..:. 8. Concurrency. The Developer shall meet City concurrency infrastructure requirements applicable as of March 20, 2012, if any, necessary for construction of the project depicted in Exhibit B including, but not limited to traffic, water, sewer, roads and drainage. The Developer shall provide the city 'Nith one (1) acre of land, suitable for a park and satisfactory to the City or an amount of money equal to the average assessed value in the City of South Miami of one (1) acre of land Upon issuance of a certificate of occupancy, the Developer shall pay the sum of $30,000.00 to the City in full satisfaction of Developer's contribution obligations for parks / open space, if any, for the affordable housing project depicted in Exhibit B. a. Drainage. The Developer shall provide drainage as required by law--aflG in accordance with the Rules of the Department of Environmental Regulation and the South Florida Water Management District and the regulations of the City's Code. b. Water and Sanitary Sewer. VVater and sanitary sewer service asAs r~quire9 byla\JV--aflG, the Developer shall comply with the requirements of the City's Waterutility!rrqJProvisions of water and sewer services. c. Water and Sanitary Sewer Distribution Lines. Developer is responsible for construction of water and sanitary sewer distribution lines, collection lines, pump stations, lift stations and fire hydrants within the boundaries of the Property. Such .... construction shall be undertaken in accordance with the ~ot.JRlYCitY's staQcjards b'1]and specifications and shall be inspection and approved by the City. d. Solid Waste Collection. The Developer shall provide waste collection service to the Property through a solid waste collection franchise previously approved by the City:- e. Law Enforcement. The City provides police service to the Property. f. Fire Rescue and Emergency Medical Services. Miami-Dade County provides fire rescue and emergency medical services to the Property. g. Traffic. The City is responsible for Levels of Service and concurrency determinations for local City roadways. The Developer shall meet traffic requirements of the City's code as applicable on the effective date of this Agreement. h. Landscapina. Landscaping on the property shall be in substantial compliance with the landscape plan attached hereto as Exhibit C (Landscape Plan). Owner covenants and agrees that it shall, perpetually and at all times, care for and maintain all plants, trees and shrubs in a professional and diligent manner ~insure substantial compliance with the Landscape Plan. Owner shall regularly monitor the health and appearance of the landscaping and, where necessary, shall replace dead or permanently damaged plants, trees or shrubs with like or similar plant material to insure substantial compliance with the Landscape Plan. Failure of Owner to comply with this section shall constitute a civil offence enforceable under the Code Enforcement provisions of the City Code. a-~Construction Permitting. Subject to the other provisions of this Agreement, the failure of this Agreement to address a particular permit, condition, term or restriction shall not relieve the Developer of the necessity of complying with the law governing said permitting requirements, conditions, terms or restricti8ns. ..!he parties agree that the Developer will be required to comply with the ~pplisal)l~CjtY lJ~ilijjhgq9cte·>hijand permitting requirements in effect as March 20, 2012, or as otherwise provided by this Agreement. The Developer shall pay fees and costs imposed by the City and Miami-Dade County, if any. 44. band Development Code. The provisions of Taxation. In the City's current Land Development Code, including section 20 8.9, shall apply to this agreement, 'Nith the exception of review by the City's Planning Board, and unless otherwise f*OVided in this Agreement. The City Commission shall be responsible for all revie'Nsevent that section 20 8.9 requires. The the Developer shall also comply with all other site plan revievJ and revisions including the City's Environmental Review and Preservation Board ("ERPB"). 1 O. Taxation: The changes to a non-profit ownership entity, Developer shall not apply for any exemption that affects the taxable value of the property. In any event, the Developer agrees to pay the City any difference in the City's share of the ad valorem taxes that may result from an appraisal of the property on any basis other than one that is based on the highest and best use of the property. In the event that the property becomes exempt from taxation, the ovmer agrees to pay the same amount as would have been the City's share of the ad valorem taxes, based on the highest and best uses of the property, as the City would ha'/e received had the property not become tax exempt. 11. -t2-o---Due Diligence and Time of Essence. The City and Developer acknowledge that time is of the essence in implementing this Agreement and processing related building permits, given the tax credit financed nature of the Developer's proposed project. Upon execution of this Agreement, the City and Developer shall immediately commence all reasonable actions necessary to fulfill their obligations hereunder and likewise agree to use their best efforts to expeditiously process construction permitting. The City further agrees that all necessary plan review aM inspections will be conducted by the City Building Department on a timely and efficient basis-, except that the City agrees to allow the use of qualified independent third party building inspectors (at Developer's expense) to conduct plan reviews and inspections as necessary to comply with the terms of this Agreement and to facilitate the valid issuance of building permits (or a building permit ready letter) for the project depicted in Exhibit B, on or before September 15,2012. 12. Effective Date. This Agreement shall become effective upon delivery of a copy of this Agreement, signed by the City Manager, to the Developer ("Effective Date"). 13. Duration. The term of this Agreement shall be for a period of 20 years from its Effective Date, unless this Agreement is terminated as provided for herein or extended as may be provided for in Section 163.3229, Florida Statutes. Any amendments to the Agreement within the term shall comply with the statutory requirements of Section 163.3220-3243, Florida Statutes. 14. Recording. The City shall record a copy of this Agreement in the public records of Miami-Dade County as soon as practicable after its execution by the City ManagerManager and the DeveloperDeveloper (and in any event, within 14 days of adoption by the Commission) and shall also submit a copy to the Florida Department of Economic Opportunity within 14 days of recordation. If this Agreement is amended, extended, terminated, revoked, or nullified, the Clerk shall have notice of such action recorded in the public records and such recorded notice shall be submitted to the Florida Department of Economic Opportunity. 15. Termination. The Developer may terminate this Agreement upon written notice if building permits (or a building permit ready letter) are not issued by September 15, 2012 or if for any reason beyond Developer's control it is unable to close on the purchase of the Property from its present legal owner. This Agreement may otherwise be terminated by mutual written consent of the parties pursuant to same the notice requirements contained in this Agreementfor the initial adoption of a development agreement. 16. Successors and Assigns. This Agreement shall be binding upon aRd-and inure to the benefit of the City and the Developer, as well as their respective successors in interest and assigns and all future o'lmers of the property for the term of this agreement..:. In the event of an Assignment of this Agreement, the Developer shall provide notice to the City as provided herein. 17. Governing Law. This Agreement shall be governed by the laws of the State of Florida, and judicial venue for any actions between the parties arising from this Agreement shall be in Miami-Dade County, Florida. 18. Enforcement. In the event the Board or the Developer is required to seek enforcement of the provisions of this Agreement, the prevailing party shall be entitled to recover from the other party all costs of such action, including reasonable attorney's fees. 9-o~Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original. -W-:20. Construction. This Agreement shall be construed as the joint and equal work product of the parties and shall not be construed more or less favorably on account of its preparation. #:21. Entire Agreement. This Agreement constitutes the entire Agreement between the parties relating to the subject matter hereof and is the only agreement reached concerning the Site Plan attached as Exhibit B. All preceding discussions pertaining to the development of the Property as depicted in Exhibit B were had pursuant to law and subject to full consideration by the City Commission at duly noticed public hearings. 4-b22. Notices. The parties designate the following persons as representatives to be contacted and to receive notices, if any, regarding this Agreement. For the City: with a copy to: For the Developer: with a copy to: {Attorney] City Manager 6130 Sunset Drive South Miami. FL 33143 City Attorney 6130 Sunset Drive South Miami, FL 33143 Metro South Senior Apartments Limited Partnership Mr. Donald Paxton 2206 Jo An Drive Sarasota, FL 33231 [address] [REMAINDER OF PAGE LEFT BLANK. SIGNATURE PAGE FOLLOWS] IN WITNESS WHEREOF, the parties hereto have caused the execution of this Agreement by their duly authorized officials as of the day and year first above written. Signed, sealed and delivered in the presence of: Print Name: _______ _ Print Name: -------- STATE OF FLORIDA COUNTY OF MIAMI-DADE Metro South Senior Apartments Limited Partnership, a Florida limited partnership 8y: __________ _ Name: _______ _ Title: ________ _ The foregoing instrument was acknowledged before me this _ day of ,2012, by , as of Metro South Senior Apartments Limited, a Florida limited partnership, who is personally known to me, or who has produced _______ _ as identification and who did/_ not take an oath. Notary Seal Notary Public, State of Florida Print Name: _________ _ My Commission Expires: _____ _ *** NO FURTHER TEXT ON THIS PAGE*** Attested: By:==================== Maria Menendez City Clerk Witness ---------------------- Witness ---------------------- STATE OF FLORIDA COUNTY OF MIAMI-DADE CITY OF SOUTH MIAMI By ____________________ _ Hector Mirabile, PhD. City Manager Approved as to form, language, legality and execution thereof: By ____________________ _ Thomas F. Pepe City Attorney The foregoing instrument was acknowledged before me this _ day of , 2012, by Hector Mirabile, PhD., as City Manager of the City of South Miami, on behalf of City Commission, who is personally known to me. Notary Public, State of Florida My Commission Expires: 1 RESOLUTION NO. _____ _ 2 3 A Resolution to consider the adoption of a development agreement proposed 4 by Metro South Senior Apartments Limited Partnership, pursuant to 5 sec.70.51 and 163.3225, Fla. Stat., for the construction of commercial space 6 and 91 affordable senior apartments at 6101 Sunset Drive, South Miami, 7 Florida, which will require concessions, including parking and height 8 variances and which will either be rejected, accepted or accepted with 9 amendments. 10 11 WHEREAS, Metro South Senior Apartments Limited Partnership ("Metro South") 12 sought rezoning of a portion of the property located at 6101 Sunset Drive, South Miami, Florida 13 which was denied by the City of South Miami ("City"); and 14 15 WHEREAS, Metro South made a demand for mediation pursuant to sec.70.51, Florida 16 Statutes; and 17 18 WHEREAS, Metro South and the City have been engaged in mediation proceedings 19 pursuant to sec. 70.51, Florida Statute, which has resulted in a development agreement proposed 20 by Metro South; and 21 22 WHEREAS, it is the obligation ofthe City to review the proposed development 23 agreement pursuant to sec. 70.51, Florida Statute, and to either reject it, approve it or approve it 24 with amendments. 25 26 NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY 27 COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA: 28 29 Section 1: The City Commission hereby the development agreement 30 proposed by Metro South Senior Apartments Limited Partnership. 31 32 Section 2. If any section clause, sentence, or phrase of this resolution is for any reason 33 held invalid or unconstitutional by a court of competent jurisdiction, the holding shall not affect 34 the validity of the remaining portions of this resolution. 35 36 Section 3. This resolution shall become effective immediately upon adoption by vote of 37 the City Commission. 38 39 PASSED AND ADOPTED this __ day of ,2012. 40 41 42 ATTEST: APPROVED: 43 44 45 46 CITY CLERK MAYOR Page 1 of2 1 2 3 4 5 6 7 8 READ AND APPROVED AS TO FORM, COMMISSION VOTE: LANGUAGE, LEGALITY AND Mayor Stoddard: EXECUTION THEREOF Vice Mayor Liebman: Commissioner Newman: Commissioner Harris: CITY ATTORNEY Commissioner Welsh: Page 2 of2 HI Summer's BIGGEST SALE 099%APR Available 2008 BMW328ia Brown/Beige.34KM~es ................................ $20,777 2009 BMW328ia Groy/Black. 37K M~e3 ....•.. 2007BMW335ia Slock/Saddle. 45K Miles ..... 2010BMW328ia Silver/Block. 17KMi\es ..... ......... $23,777 ...................... $25,777 . . .$25,7?7 2009BMW328Ci Black/8eige.33KMi/e' ............................... $26,777 2009BMWX33.0 Brock/Black. 36K Mir~ ..... . ................... $26,777 2008 BMW328 CiC Slock/Cream. 34KMiIes.... • ........................... $29,777 ;~~!!.~B~M~.~Drive30i ................. $35,777 2009 BMW328 CiC Gray/Black. lBK Miles.... . .............................. $35,777 2008 BMW335 CiC MIcJl3bck. 231( Mile... • .......................... $37,777 2009 BMWX5 Diesel .................. $38,777 White/Black. 27K Mil~ 2008 BMW M5 Sedan Blue/Block.29KM~&$...... .. .................. $45,777 2010BMWX63.5 Groy/Oyster.27KMil~ .•... 2012BMW650CiC Groytlffld.6KM;I~ ....... . ............. $84,777 NE 20th Street & Biscayne Blvd' MiamI Just North of the AmerIcan Alrtines Arena BramanMotorsBMW.com 866.339.4809 Sales: Mon-Fri S;30am-Bpm • Sat 9am.Spm • Sun 11am-5pm Service Open 7 Days a Week STAY AHEAD WITH THE MIAMI HERALD AND OUR PARTNERS ~l{lli,~ The TED Radio Hour at 7 p.m.: Fixing our broken systems. @)4 At U: 30 a..m.: A debate between Katherine Fernandez Rundle and Rod Vereen, rivals in the race for ----.:::. Miami-Dade state attorney. AURORA THEATER SHOOTING At funerals, 2 spirits are honored BY AHANDA L£E HYERS McQ¢nn. 27, dove in front of AsSO(iated Prn!.s hisgirlfriend,.Samantha Yow- SPRINGFIELD. Ohio -le!;andwasshotthteetimes. A man who dove in front of Yawler, who was shot in his girlfriend and saved her the knee and survived. ar- life at the Colorado movie rived at Mc:Q!linn's funeral shooting was remembered on crutches Saturday and Cor his selfless sacrifice Sat-wept quietly with his pat'- urday. while an aspiring ents and other family mem- sportscasterwaspraisedfor hers. Neither she nor his her boundless energy. parents addressed moum- The girlfriend whom ers at the Maiden Lane MattMcQ!rlnnsavedbytak-ChwchofGod. ing three bullets aimed at Pastor Herb Shaffer, who berweptaspastorsspokeo( is also McQ!llnn's uncle. the senselessness of the said his nephew had been a shooting spree at the subur-gift since he was born. and banDenver theater where 12 that his actions in Colorado peoplewerekilledjust more were just one example ofMs I'IAtSHALlGORIJ'f/AP FAMilY'S SORROW: Pastor Herb Shaffer, victim Matt McQuinn's uncle, hugs McQuinn's brother, Eric. than a week ago. selflessness. Mourners packed a McQ.Unn called his church in this Ohio town mother three times the day whereMcQyinncamefrom. before she bad surgery be- while tiunily and friends cause he was upset that he gathered in San Antonio to couldn't be there in person, remember Jessica Ghawi.. Shaffer said. Whenhe was 7, When gunfire broke out in he put his arm around his the Aurora. CoJo.. theater. YOWlger cousin because he was wooled sbewasn't haY- ~~~~~~~~ inga good day, he said. I ~ Then he talked about McQ!Iinn's greatest sacri- fice of all, saving YowIer, who Shaifer descn'bed as the love ofhis nephew's life. "In moments of crisis, true character comes out," he said. "'His immediate re- sponse was to protect the woman he loved." Mourners at Ghawi's fu- neral also touched on the massacre. "If this coward could have done this with this nruch hate, imagine what we can do with this much love," her brother said at the C0m- munity Bible Church in San Antonio. But most of the service focused on the life of the aspiring 24-year-old sports journalist. "What we will not do to- day is focus on how she left us," said Peter Bums, a friend from Colorado, read- ing a statement from Gba- wi's mother, Sandy. jess was a force to be reckoned with. She was a jolt oflight- Ding. A whirlwind. A Labm- dor puppy running clumsily with innocent joy." Ghawi was a pretty, blue- eyed redhead who moved to Colorado about a year ago. She had survived a June 2 shooting at a Toronto mall that left two dead. She blogged about the experi- ence, writing that it remind- edher''howfragiIelifewas.'' James Holmes. 24, is ac- cused of opening flre on the theater. killing McQ!llnn. Ghawi and 10 others. He is due to be fonnally charged Monday in Colorado. Called Curiosity, new Mars rover has a human approach BY AMINA KHAN los Angeles Times LOS ANGELES -In a matter of days, a geologist unlikeanyonEarthwillven- ture into alien temtory. It has six leg!; and one arm. Instead of feet. it rides around on metal wheels as thin as cardboard. Its brain is in its belly, where it also di- gests and analyzes the Ie- HARS ROVER: Curiosity, the most advanced rover, is expected to land on Marson Aug. 5. NKl(tJI/A' ~~~~~~~~ mains of Martian rocks. h there life on Mars in its eats plutonium for breakfust. wanner, wetter past -and Despite its resemblance could it sustain life today? WOl1ldn~ it be great to have assisted living in the privacy snd com/ott of your own home? :::~~~:=:~~O:::!elh::..r"'m ADYAHCAlIE to a one-armed, Hon pmy-The rovet"s suite oCtO prl- ing mantis. Curiosity is the mary instruments was de- most advanced machine ev-signed with these questions er sent to another planet. If in mind.It can shoot lasers at all goes according to plan, rocks to see what they're the rover will touch down made ot:. It can record hours onMars onAug. 5 and begin ofhigh-quality colorvideoof rolling along the SUIface a the Martian landscape and few days lateL relay the footage back to AfierlHounlofSe<YIce..-Iv.NT £xtl"IhltUrFlft!l Hou." Keeping Service Now A"ilililbf" www.sdvancartl.net Curiosity will be the eyes Earth. It can even drill into and ears for an international stone to look for specific or- team of about 350 earth-gamc compounds thought to bound scientists. The rovei's be necessary for life to begin. goal is to climb a 3-mile-tall "We're really talking mountain and gather evi-about, effectively, a field ge- dence that could resolve a ologistlastrobiologist re- long-standing mystery: Was motely operating on Mars," I ~!!!!!!~~~~~~~~~::::::~~saidJeffSimmOnds,thesci-ti ence payload manager for CITY OF SOUTH MIAMI NOTICE OF PUBLIC HEARING NonCE IS HEREBY given that the City COmmission of the City of South Miami, Rorida will conduct a Public Hearfng at a City COmmission meeting scheduled forTuesdaY,August 7, 2012 beginning at 7:30 p.m. in the City COmmission Chambers, 6130 Sunset Drive,IO consider the following Item: Pursuantto Rorida StabJes sections 70.51 and 163.3225, two publiC hearings will be held before the City COmmission oftheCily of SOuth Miami at which the Commission will consider entering Into a Development Agreement for the conslructlon of a mixed use building located at 6101 Sunset Drive, including street level commercial space, 91 affordable senior apartments, and associated parking garage. The proposed building height on the south side (facing Sunset Drive) is 8 stories, stepping down to 4 stories toward the rear, and 2 stories at the rear (north) side. A ropy of the proposed Development Agreement as associated site plan can be obtained al 6130 Sunset Drive, South Miami, fL (~City Hall"). The first public hearfng shall be held at City HaU on August 7, 2012 at 7:30 p.m. The second public hearing Shall be held atCily Hall on August 21, 2012 at 7:30 p.m. The matter wilt be heard as scheduled on the City agenda that will be prepared on the Friday before the Tuesday City COmmission meeting. AI...1.lnterested parties are Invited to attend and will be heard. For furtller information, please contact the Planning & Zoning 9lfice at: 305-663-6331. Maria M. Menendez, CMC City Clerk Pursuant to Aorida Statutes 286.0105, the City hereby advises the public that if a person decides to appeal any decision made by this Board, Agency or Commission with respect to any matter considered at its meetillg or hearing, he or she will need a record of the proceedings, and that for such purpose, affected person may need to ensure that a verbatim record of the proceedings Is made which record inCludes the testimony and evidence upon which the appeal Is to be based. the mission. Mars Science Laboratory, as this machine is officially known. is the product of more than seven years of work by hundreds of scien- tists and engineers. At first glance, Curiosity -so named by a sixth- grade girl from Kansas who won an essay contest - doesn'tappeartobemadein the image of a geologist. But closer inspection re- veals that it bas its own ve~ sions of the basic human senses and the tools a geolo- gist would take into the field, including a rock hammer, a hand lens and several sets of "eyes!' There are also a few fancy gadgets that, on Earth. would be confmed, to a lab. Curiosity is an impressive machine. It stands about 7 feet talL 9 feet wide and 10 feet long. Its body is be- decked with cameras, and thick wires sn.ake 3roWld its metal shell. Itslongarmgrips a fistful oftoo1s: ascooper to collect soil samples, a drill to bore into stone, a specialized lens to peer at microscopic structures and a "tongue" of sorts that can press aglinst rock to taste the chemicals within. Inspiteofitsalmost 2,000 pounds. everything on board the rover bas been pared down to its most min· imalistversion, tomakeit as '-_____________________ -' Jight as possible.