11I I
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.S1 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 .S1, 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 of the 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
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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:
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MIAMI DAILY BUSINESS REVIEW
Publi shed Daily except Saturday, Sunday and
Legal Holidays
Miami, Miami-Dade County, Florida
STATE OF FLORIDA
COUNTY OF MIAMI-DADE:
Before the undersigned authority personally appeared
O.V. FERBEYRE, who on oath says that he or she is the
VICE PRESIDENT, Legal Notices of the Miami Daily Business
Review flk/a Miami Review, a daily (except Saturday, Sunday
and Legal Holidays) newspaper, published at Miami in Miami-Dade
County, Florida; that the attached copy of advertisement,
being a Legal Advertisement of Notice in the matter of
CITY OF SOUTH MIAMI
PUBLIC HEARING 11/20/12
in the XXXX Court,
was published in said newspaper in the issues of
11/09/2012
Affiant further says that the said Miami Daily Business
Review is a newspaper published at Miami in said Miami -Dade
County, Florida and that the said newspaper has
her~tofore been continuously published in said Miami-Dade County,
Florida, each day (except Saturday, Sunday and Legal Holidays)
and has been entered as second class mail matter at the post
office in Miami in said Miami -Dade County, Florida, for a
period of one year next preceding the first publication of the
attached copy of advertisement; and affiant further says that he or
she has neither paid nor promised any person, firm or corporation
any discount, rebate , commission or refund for the purpose
of securing t' adverti t for publication in the said
newspap .
Sworn to and subscribed before me this
09 day of NOVEMBER ,A.D. 2012
(SEAL)
O .V. FERBEYRE personally known to me
Notary Public State of Florida
Cheryl H Marmer
My CommisSion EE 189528
Expires 07/18/2016
[REVISED DRAFT NOV. 2012 -THIRD DRAFD
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 an affordable
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,November , 2012, the City Commission considered
entry of this Agreement at a public hearing, after publishing notice of same on or before
July 29,November , 2012 and after Notices of Intent to Consider this Agreement
werea notice of intent to consider development agreement was mailed on JtHy
e,November , 2012 and July 31, 2012 to the to all property owners, as reflected on
MIA _ACTIV E 4047870.1 404 7870140478702 . 1
the current years tax roll, lying within 500 feet of the Property (via certified mail to
continguous 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 July 29 ,November . 2012 and after announcing at the August
-7,November , 2012 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 reasonable accommodations 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 facilitateto settle a federal lawsuit alleging that the
City 's parking requirements violate the Fair Housing Act ("FHA") and the American with
Disabilities Act ("ADA") by impeding the number of available units of affordable senior
and disabled housing when there is some evidence that the parking requirements are
excessive for this particular development and to facilitate the City's demand that the
Developer insure that there is adequate parking for this development and 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 (including 19 disabled accessible units), to 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 the FHA and ADA
complaint filed in federal court ; and
MIA_ACTIVE 4047870 .140478 70140478702 2
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 in order to
reasonably accommodate the Developer's request to provide 91
affordable senior apartment units (age-restricted to 55 and over), 19 of
which are disabled accessible and the balance of which are disabled
adaptable, as well as the City's desire to foster mixed uses and
commercial activity at the street level. The Commission has further
determined that these adjustments and site plan approval for the project
depicted in Exhibit B are permissibly granted upon approval of this
Agreement for execution pursuant to FLUEDRA § 70.51 (19)-(21).
Specifically, the City Commission has determined that the following
adjustments are appropriate under the facts and circumstances:
MIA_ACTIV E 4047870 .140 47870 1404 7870 2 3
(a) Residential Parking Adjustment. The Commission hereby
approves the parking depicted in Exhibit B to include a total of 106
spaces, 9479 of which shall be designated for the 91 dwelling units
proposed (reflecting a residential parking ratio of 1.0 instead of 2.0)
and 15 and 27 of which will be designated for commercial parking
requirements associated with 2,645 square feet of commercial
space located on the ground floor. The residential parking ratio for
the project shall be no less than recommended by the parking study
conducted pursuant to the overflow off-site parking provisions of
paragraph herein.
(b) Resident Shuttle Service. Consistent with the location of the
project within the City's TODD District and industry research
indicating lower vehicle ownership ratios for senior housing, the
Developer shall provide scheduled shuttle service for residents to
and from the South Miami Metrorail Station and the nearest grocery
store and stops along the way as requested by residents .
(c) Post Construction Parking Study one year from
issuance of a certificate of occupancy, the Developer shall, at its
sole expense, retain the services of a licensed traffic engineer to
perform a parking study based on actual parking usage patterns for
the project approved herein. The results of the study shall be in
published form and a copy shall be provided to the City upon
Developer's receipt from the retained engineer. If the parking study
indicates a shortage of parking based on actual usage, the
Developer shall promptly address the documented parking
shortage by means available under Section 20.4.4 (A) or (F) of the
City Code.(d) 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. Execution 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. Architectural Review. The Developer shall construct the project depicted
in Exhibit B in substantial compliance with the color rendering included at
Exhibit B except that the Developer shall accommodate reasonable
modifications to architectural features, material selection or colors
requested by the City's Environmental Review and Preservation Board
(ERPB) if the ERPB provides review and comment on or before
September 4,December ,2012.
MIA_ACTIVE 4047870.1 4047870 140478702 4
9. Concurrency. The Developer shall meet any applicable City concurrency
infrastructure requirements effective as of March 20, 2012, and shall
otherwise meet applicable requirements of Miami-Dade County and the
Florida Building Code, necessary for construction of the project depicted in
Exhibit B including, but not limited to traffic, water, sewer, roads and
drainage.
a. Parks I Open Space. Upon issuance of a certificate of occupancy,
the Developer shall pay the sum of $250,000.00 to the City to the City the
sum of $250.000.00. less any documented costs due to contract extension
payments demanded by the landseller, incurred by the Developer to
maintain site control of the Property after August 26. 2012. except that
said payment shall not be reduced below $130.000.00 . The payment
made pursuant to this shall be in full satisfaction of Developer's
contribution obligations for parks / open space, if any, for the affordable
housing project depicted in Exhibit B.
h. 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.
c. Water and Sanitary Sewer. As required by law, the Developer
shall comply with the requirements of the Miami-Dade County MDWASAD
for provision of water and sewer services.
d. 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 Miami-Dade County MDWASAD standards and
specifications and shall be inspected and approved by the County.
e. Solid Waste Collection. The Developer shall provide waste
collection service to the Property through a solid waste collection franchise
previously approved by the City
f. Law Enforcement. The City provides police service to the
Property.
g. Fire Rescue and Emergency Medical Services. Miami-Dade
County provides fire rescue and emergency medical services to the
Property .
MIA_ACTIVE 4047870.1 4047870140478702 5
h. Vehicular 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.
i. Pedestrian Traffic -The Developer shall construct, at Developer's
sole expense, an at-grade pedestrian crosswalk at a point on the Sunset
Drive frontage of the Property agreeable to the City, with decorative
pavers and signage similar to the existing crosswalk in front of the Sunset
Place development (on Sunset Drive, east of U.S. 1), subject to the City
obtaining any necessary permits or approvals for installation of the
crosswalk within the public right of way.
10. Commercial Uses. The Developer shall make best efforts to recruit and
lease to a restaurant tenant as soon as practicable upon completion of
construction so that at least one sandwich shop or cafe type restaurant
shall be located in the ground floor commercial space depicted in the site
plan attached as Exhibit B.
11. Facilitation of Resident Activities -The Developer shall meet all
requirements of [citation] concerning provision of activity opportunities for
the senior residents of the Project.
12. Potential Overflow Off-Site Parking. The Developer shall provide
overflow off-site parking on the approximate 23,088 square foot portion of
the City-owned property known as the inspection station site located at
5890 S.W. 69th Street and depicted on Exhibit C hereto ("IS Site'').
pursuant to the terms of this paragraph. which shall satisfv City parking
requirements for the project. Concerning this off-site parking, the parties
specifically agree as follows:
(a) The City warrants that the IS site is zoned suitably for
use as offsite parking for the development depicted in the
site plan and that it will cooperate in the necessary
permitting for improvements by the Developer to
implement this off-site parking condition.
(b) The City warrants that the IS site has no known
environmental contamination, and in any event hereby
agrees to indemnify Developer from any environmental
clean up costs that may be required by any agency,
should contamination predating the use of the IS site by
the Developer be discovered.
(e) Stacking style parking shall be permitted for the
contemplated off-site parking on the IS site.
MIA _ACTIV E 404+&+0 .140478 70140478702 6
(d) The parking ratio for the development depicted in the
referenced site plan shall not be less than 1.5 or greater
than 2.0 per residential unit. inclusive of off-site parking
located both within the parking garage depicted in the
referenced site plan and the parking accommodated on
the IS-site. except as potentially modified under the
parking study provisions of this paragraph.
(e) The Developer shall provide written notice to the City
upon the sooner of (a) the date that the Development
Project achieves six (6) consecutive months of 90%
physical occupancy or (b) the date that the Development
achieves stabilization as that term is defined in the
amended limited partnership agreement for the
Developer and as required by the investor limited partner
("Stabilization Date''). Upon receipt of such notice, the
City shall undertake to procure a parking study ("Study")
to analyze parking usage of the project as of that time.
The City shall have sole discretion to choose the
consultant to undertake the Study: however, the
consultant must be a nationally recognized firm with prior
experience in undertaking parking studies for the
purposes of multi-family development. The Study shall
be for such a time period as the Consultant recommends
pursuant to the commercial reasonable industry
standards utilized in the ordinary course for the study of
parking requirements but in no event will extend longer
than 12 months. The Developer shall pay for all
expenses of the Study provided that the study is bid
through the City 's proper competitive process and does
not exceed $25,000.00. The purpose of the Study shall
be to determine, including through on-site analysis and
observation, the actual usage of parking by tenants within
the Development. including commercial uses, if any. If
the Study concludes that all parking for the Development
site can be accommodated within the Development
Project garage, then, notwithstanding any other provision
of the City Code, Charter or other applicable criteria, a
parking ratio of (##) space per residential unit shall be
deemed to have been approved by the City, and the total
number of garage parking spaces shall be applicable to
and established for all uses in the Development Project.
including commercial uses, if any, without requiring
additional administrative, public hearing or other approval
from the City . In that event. a copy of the Study shall be
recorded in the Public Records of Miami-Dade County,
MIA_ACTIV E 4047870 .14047870140478702 7
Florida. and such recordation shall serve as legal notice
to the public that a parking ratio of (##) space per
residential unit has been approved by the City.
(0 The City shall enter into a lease / purchase agreement of
the IS Site to the Developer ("Lease Purchase
Agreement") the terms of which shall include. among
others, that:
(1) The shall be for not less than 30 years.
(2) The lease shall have two rental periods. The
first period ("Staging Period") shall commence upon
the approval of the Revised DA through the date that
at least ninety percent (90%) of the residential units at
the Development Project are leased and occupied .
The second period ("Occupancy Period") shall
commence upon the Development Project having no
less than ninety percent (90%) occupancy. The rent
during the Staging and Occupancy Periods shall be a
flat rate of $15,000 per period, subject to conversion
to an annualized lease amount upon determination of
the fair market value of the IS site according to sub-
paragraph under 3C( ) of this paragraph.
(3) Any rent payable under the Lease Purchase
Agreement shall be triple net and will therefore
require the lessee Developer to pay all costs of
maintenance, including, without limitation: mowing the
grass at least twice a month in between May 1 and
November 1 and at least once a month between
November 2 and April 30 of each year during the
Staging Period: all costs of general liability,
commercial lines, and other insurance as required by
the City's normal insurance requirement: all
applicable taxes accruing after , 2013:
and all costs of permitting that the Developer may be
required to pay for using the IS Site as a staging area,
if any: and all other costs of the property, except the
environmental clean up costs which must be borne by
the City under this paragraph.
(g) The Lease/Purchase terms shall provide that if the
parking study described in the foregoing sub-paragraph (v)
above concludes that parking is required off-site in order to
meet the Development Project's parking requirements, the
MIA_ACTIVE 4047870 .14047870140478702 8
Developer shall then have a 60 day election period.
commencing upon receipt of a copy of the study by the
Developer. within which to either purchase the IS Site
pursuant to the Lease/Purchase terms or provide the
Alternate Lease (defined below). In the event. that the
Developer elects to proceed with the purchase of the IS Site .
it shall pay fair market value for the IS Site assuming the
current zoning of Transportation Oriented Design District LI-
4 as set forth in the City's Land Development Code. Fair
market value and price shall be the average of three
appraisals undertaken by the City in conformity with the
process typically undertaken for sales of real property by the
City and in further conformity with state law and City Code.
The City shall commence the process of determining the
purchase price of the IS site no later than the date of
execution of the Revised DA. If Developer is required to
purchase the IS Site. Developer shall enter into a purchase
agreement (Purchase Agreement) with the City similar to
those used in South Florida for similar properties and shall
contain standard terms. warranties and representations,
including a 60-day due diligence period allowing Developer
to review. among other things, status of title and
environmental reports. and requiring the City to deliver good,
marketable and insurable title by General Warranty Deed to
Developer. No deposit shall be required of Developer under
the Purchase Agreement.
(h) If at the end of the due diligence period Developer is
not required to purchase the IS Site then Developer may
terminate the Lease/Purchase agreement or provide the
Alternate Lease (as defined below). If, after purchase of the IS
Site, Developer elects to meet the off-site parking requirement
by leasing parking area from another owner that would meet the
requirements of the City code, then such lease shall (a) satisfy
the City that such lease shall be for a term of not less than thirty
(30) years ("Alternate Lease"). and (b) upon execution of an
Alternate Lease, the City shall. pursuant to the Lease Purchase
terms , have a right of first refusal to purchase the IS Site from
the Developer for a price equal to the purchase price the
Developer paid the City plus 3% per year . The Developer may
elect the Alternate Lease at any time regardless of whether
Developer initially elects to purchase or lease the IS Site. The
City represents that the IS Site zoning permits commercial
parking on the site in addition to Off-Site Parking for the
Development site. Developer shall have the right to rent and/or
lease parking spaces on the IS Site for both automobiles and
MIA_ACTIVE 1017870.1 1017870 110478702 9
trucks in addition to Off-Site Parking for the Development Site.
If the Study concludes that all parking for the Development site
can be accommodated within the Development site Developer.
at his sole option and discretion. may cancel the lease and/or
Alternate Lease without penalty or detriment and all of
Developer's obligations under the lease and/or Alternate Lease
shall be extinguished.
(i) The Developer may use the IS Site without
improvement from the date of commencement of the Lease
term through the date that is six (6) months after the Study is
completed and delivered to the City. Notwithstanding any
conflicting provision of the City Code. the City shall issue
Developer all permits required for construction staging and
surface parking on the IS Site . Construction permitting and
temporarv or final CO of any portion of the Development site
shall not be delayed or conditioned on Code required
improvements or surfacing of the IS Site. The Study shall be
based on the parking usage of the existing tenants.
13. l-h-Landscaping. Landscaping on the property shall be in substantial
compliance with the landscape plan attached hereto as Exhibit GD
(Landscape Plan). Developer 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. Developer 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 Developer to comply with this section shall
constitute a civil offence enforceable under the Code Enforcement
provisions of the City Code. A separate agreement or covenant
("Covenant"), prepared by the City, shall be executed by Developer and
held in escrow by the City Attorney for recording pending the Developer's
closing on the purchase of the Property. Said covenant shall incorporate
the provisions of this section and provide for severability. A condition
precedent to this Development Agreement is the execution of the
Covenant in a form acceptable to the City. The Covenant shall be treated
as a covenant running with and binding the land upon which the
Development is situated and it shall be recorded in the land records of
Miami-Dade County and, at the option of the City and if allowed by law,
the Covenant may be re-recorded when necessary or required to
maintain, uninterrupted, the effectiveness of the covenant running with the
land.
14. Y.Construction Permitting. Subject to the other provisions of this
Agreement, the failure of this Agreement to address a particular permit,
MIA_ACTIVE 4047870 .140478 7014047870 .2 10
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 Florida Building Code or as
otherwise provided by this Agreement. The Developer shall pay fees and
costs imposed by the City and Miami -Dade County, if any.
15... ll.-Taxation. The Developer shall not apply for any exemption or
discount that affects the taxable value of the property developed as
affordable senior and disabled apartments pursuant to this Agreement. In
any event, should the property assessor, or the taxing authority, apply any
discount or exemption to the property, or should the Owner of the property
become tax exempt, the Developer/Owner agree to pay the City, in lieu of
taxes, the amount of money that would have otherwise been paid to the
City out of ad valorem taxes assessed against the property developed as
affordable senior and disabled apartments pursuant to this Agreement,
had the property or the Owner not received an exemption or discount or
had the Owner not become tax exempt. The Developer and Owner hereby
knowingly and voluntarily waive any legal right to claim a tax exemption or
discount that is contrary to the provision of this section of the development
agreement. The provisions of this section shall run with the land and
become binding on all heirs, successors and assigns of the Developer and
Owner. A separate agreement or covenant ("Covenant"), prepared by the
City, shall be executed by Developer and held in escrow by the City
Attorney for recording pending the Developer's closing on the purchase of
the Property. Said covenant shall be signed by the owner of the property
in question which shall incorporate the provisions of this section and
provide for severabilitY. A condition precedent to this Development
Agreement is the execution of the Covenant in a form acceptable to the
City . The Covenant shall be treated as a covenant running with and
binding the land upon which the Development is situated and it shall be
recorded in the land records of Miami-Dade County and, at the option of
the City and if allowed by law, the Covenant may be re-recorded when
necessary or required to maintain, uninterrupted, the effectiveness of the
covenant running with the land .
~ !4.-Due Diligence and Time of Essence (Permits). 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 cooperate with
any qualified independent third party building inspectors retained by the
MIA_ACTIV E 4047870.1 4047870 140478702 11
Developer pursuant to state law (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, as soon
as practicable. The City shall also use its best efforts to facilitate and
expedite permits which may be required by other agencies including
without limitation the Miami-Dade Water & Sewer Authority and Fire
Department.
17. Due Diligence and Time of the Essence (Certificate of Occupancy).
Both parties shall undertake best efforts and will help demonstrate their
respective good faith intent through participation in scheduling with the
General Contractor and or Developer and through written correspondence
as may be necessary from time to time . such that the Development
Project shall have a certificate of use that permits occupancy of at least
one unit or a temporary certificate of occupancy that permits occupancy of
at least one unit on or by December 30. 2013.
l.8... lS.-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").
19. Termination. The Developer may terminate this Agreement upon written
notice if building permits (or a building permit ready letter) for the project
depicted in Exhib it B are not issued by December 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. The Developer may also
terminate this Agreement if Developer is unable to close on its tax credit
equity funding ("Equity Closing") before 11 :59 p.m. on December 31. 2012
or if the Developer provides written notice of its determination that Equity
Closing cannot occur at or prior to that time . This Agreement may
otherwise be terminated by mutual written consent of the parties pursuant
to same the notice requirements for the initial adoption of a development
agreement.
20. Release by Developer. If the Developer achieves Equity Closing on or
before 11 :59 p.m. on December 31. 2012. Developer shall at the time of
Equity Closing execute and deliver to the City a specific release of the City
from all federal claims that Developer had or may have had arising from
circumstances relating to the project occurring prior to the date of the
release .
21. Dismissal & Mutual Release. Upon execution of this Agreement. a
voluntary dismissal without prejudice of the federal litigation pending as
Southern District Court Case No. 12 -CV-23240 shall be filed, and the
parties shall also execute a mutual release ("Mutual Release") releasing
one another from all claims prior to the date of the Mutual Release relating
MIA_ACTIVE 4047870.1 4047870110478702 12
to the project. but this Mutual Release shall not take effect unless and until
Equity Closing occurs. If Equity Closing fails to occur on or before 11 :59
p.m. on December 31. 2012. the Mutual Release shall terminate along
with this Agreement unless otherwise extended by written consent of the
parties.
22. MoDuration. The term of this Agreement shall be for a period of 30 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.
2.3... l+.-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 of an authorizing resolution 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 . The
executed covenant(s) required under sections 10 and 12 above, shall not
be recorded by the City until the City Attorney receives written notice from
Developer that it has closed on the purchase Property .
18. Termination. The Developer may terminate this Agreement upon II/ritten
notice if building permits (or a building permit ready letter) for the project
depicted in Exhibit B 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 milner. This Agreement may otherwise
be terminated by mutual written consent of the parties pursuant to same
the notice requirements for the initial adoption of a development
agreement.
24. !9.-Successors and Assigns. This Agreement shall be binding upon nd
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.
2..5... ~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.
2..6... 2-h-Enforcement. In the event the Board or the Developer is required to
seek enforcement of the provisions of this Agreement, the prevailing party
MIA_ACTIVE 4Q4787Q .14Q4787Q 140478702 13
shall be entitled to recover from the other party all costs of such action,
including reasonable attorney's fees.
27. 22.--Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original.
28. ~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.
29. ~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 .
30. ~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
[REMAINDER OF PAGE LEFT BLANK. SIGNATURE PAGE FOLLOWS]
MIA_ACTIV E 4047870 .14047870 140478702 14
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***
MIA_ACTIVE 4OO81{),1 4047870 140478702 15
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.
MIA_ACTIVE 4047870 .140478 70 140478702 16
Notary Public, State of Florida
My Commission Expires: