61 RESOLUTION NO. _____ _
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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.
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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
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15 WHEREAS, Metro South made a demand for mediation pursuant to s~c.70.51, Florida
16 Statutes; and
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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
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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.
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·26 NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY
27 COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA:
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29 Section 1: The City Commission hereby the development agreement
30 proposed by Metro South Senior Apartments Limited Partnership.
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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.
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36 Section 3. This resolution shall become effective immediately upon adoption by vote of
37 the City Commission.
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39 PASSED AND ADOPTED this __ day of ,2012.
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42 ATTEST : APPROVED :
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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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[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 "An 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 2Q ,November , 2012 and after Notices of Intent to Consider this I\greement
wefea notice of intent to consider development agreement was mailed on JtH.y
6;November ,2012 and July 31, 2012 to the to all property owners, as reflected on
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 rocilitate to 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 nu mber 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 ~ourt ; and
MIA_ACTIVE 404787g .1 ~04787 0 2 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_ACTIVE 4947879 .11:M7879J 4 047 8l.Q...2 3
(a) Residential Parking Adjustment. The Commission hereby
approves the parking depicted in Exhibit B to include a total of 106
spaces, 9-+79 of which shall be designated for the 91 dwelling units
proposed (ref lecting a resideffiial 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 residentia l 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 a long the way as requested by residents .
(c) Post Construction Parking Study one year from
issuance of a certificate of occupansy, the Deve loper SRaIl , at its
sale expense , reta in the services of a licensed traffic engineer to
pefform a parking study based on actua l park ing usage patterns for
t:Ae project approved herein . The results of the study shall be in
published form and a copy shall be provided to the City upon
Developers receipt from the retained engineer . If the parking stuey
indicates a shortage of parking based on astual usage , the
Developer shall promptly address the docum ented parking
shortage by means a'Jffiia91e 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
S~temgef-4;December , 2012.
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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 CRy to the City the
sum of $250,000 ,00. less any docume nted 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 I 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 4047~047870.2 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 orov ide
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 (illS Site").
pursuant to the terms of this paragraph. which shall satisfy City parking
requirements for the project. Concerning this off-site parking. the parties
specifically agree as follo~
Ca) 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 necessarv
permitting for improvements by the Developer to
implement this off-site park ing condition .
(b) The City warrants that the IS site has no known
environmental contamination. and in any event. hereby
agrees to indem nify 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.
Ce) Stacking style parking shall be permitted for t he
contemplated off-site parking on the IS site .
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(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
Citv 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 industrv
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 tota l
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 ,
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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 C itv .
(D The City shall enter into a lease I 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
fi rst 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 annual ized lease amount upon determination of
the fair market value of the IS site according to sub-
paragraph under 3C( ) of this paragraph.
(3) An y 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 liabilitv .
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
requi red 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) T he LeaselPurchase 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
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Deve loper shall then have a 50 day election period .
comme ncing upon receipt of a copy of the study by the
DevelopeL within which to ei t her purchase the IS Site
pursuant to the Lease/Purchase terms or provide the
Alternate Lease (defi ned below). In the event. that the
Developer e lects to proceed with the pu rchase 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 Cit y's Land Develo pment 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 Deve loper 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 propert ies and shall
contain standard terms. warranties and representations.
including a 50-day due diligence period allowing Developer
to review. among other things . status of title and
environmental reports. and requiring the City to deliver good.
marketab le and insurable title by General Warranty Deed to
DevelopeL 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). It, after purchase of the IS
Site, Developer elects to me,et 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 su c h lease shall be for a term of not less than thirty
(30) years ("Alternate Lease"). and (b) upon execution of an
A lternate Lease. the City shall. pursuant to the Lease Purchase
terms. have a r ight 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 in itially elects to purchase or lease t he IS Site . The
City represents that the IS Site zoning permits commerc ial
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
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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.
(j) The Develo per ma y 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
temporary 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. t-h--Landscaping. Landscaping on the property shall be in substantial
compliance with the landscape plan attached hereto as Exhibit GO
(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. n.Construction Permitting. Subject to the other provisions of this
Agreement, the failure of this Agreement to address a particular permit,
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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. !J..-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.
16. l4-.----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
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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 Citv 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 Occupancvl.
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 Develo per 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 .
18. 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 pro ject
depicted in Exhibit 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 Develo per 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
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to the pro ject. 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 Mu t ual Release shall terminate along
with t his Agreement unless otherwise extended by wr itten 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 .
23. 1-1.--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 .
J 8. Termination . The De¥elo~nate this Agreement upon '.witten
fl9ti6e jf building permits (or a building permit ready letter) for the project
dep icted in Exh ibit B are not issued by September 15 , 2012 or if for any
reason beyond Del/eloper 's contro l it is unable to close on the purchase of
the-PfOperty from its present legal own e r. Th is Agreement may other.vise
be terminated by mutual wAtten consent of the parties pUFSl.:.lant to same
the notice req~ents for the initial a~Gfl--9f a dev~opment
agreement.
24... 19.5uccessors 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.
25. ~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.
26. 2t-.--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 404·181 .14G4f&.1Gd4 0478 70.2 13
shall be entitled to recover from the other party all costs of such action,
including reasonable attorney 's fees.
27. n.-Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original.
28. 2J.-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.
2..2.. 24.-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. 2$.--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]
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
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***
MIA_ACTIVE 4947879.l4947879 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 404787(U4047870 140478702 16
Notary Public, State of Florida
My Commission Expires:
MIAMI DAILY BUSINESS REVIEW
Published Dally except Saturday. Sunday and
Legal Holidays
Miami, Miami.Dade County. Aorida
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 Dally BusIness
Review flkla .Miami Review, a daily (except Saturday, Surday
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 ClF SOUTH MIAMI
CITY COMMISSION MEETING FOR 1214/2012
in the XXXX Court,
was published in said 'newspaper in the Issues of
<'" • •• • ~ '-", I I
11/23/2012
Affiant further says thatlhe said Miami I)ally 81.{siness
Review Is a newspaper published at Miami In said Miami ·Dade
County . Rorlda and that the s.ald n'ewspaper has
he retofore been oontinuou'sly publls l1ed In ' said Mlaml-Dada .County,
Florida, each day (exoept Saturday. Su nday arid Legal Holidays)
and has been entered as second cla.ss mall matter at the post
office In Miami in said Miami-Dade County, Florida, for a
period of one year next preceding. the nrst pubJloallon .of.-the
attacHed copy of advertisement; and affiant further says that he or
she has neIther paid nor prom ised any person, firm or corporatIon
any discount, rebate, commission or refun~ for the purpose •
of securin · l'IIs adve fo~ publication In the said
Sworn to and subscribed before me this
23 day of NOVEMBER ,A.D. 2012
:P~ ."\. Notary Public SI818 01 Florida
• ~ , Cheryl H Marmer \~',_.".3 My Commission EE 189528
v _.ct" E~pfros 0711812016
publ ic ttia1 If '9 ·person decl!les 10
Board, AgencY or Commission wilh
Its meeting or hearing , he''of shQ
and thai for such purpOsEi::aflEfCted
verbatim record 'o1lhe p'roceedlngs
testimony and evidence upon which the appeal 15 10 be based. .: ......
11123 . . ;.;', ." .• , .. ::.:'-,:;>,: 1.2-3-221i~B602BM
MIAMI DAILY BUSINESS REVIEW
Published Daily except Salurday, 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 11k/a Miami Review, a daily (except Saturday, Sunday
and Legai Holidays) newspaper,published at Miami In Miami-Dade
County, Rorida; that the attached copy of advertisement,
being a Legal Advertisement of Notice In the matter of
CITY OF SOUTH MIAMI
CITY COMMISSION MEETING FOR 1214/2012
In the XXXX Court,
was published in said newspaper in the -Issues of
11123/2012
Affiant further says that the said Mla~1 baily Business
Review is-a newspaper published at.MiamHn-said Miami-Dade
County, Florida-and that the sald newspaper has -
heretofore been continuously publlshed'l" said Miami-Dade County,
Florida, each day (except Saturday, Sunday and Legal Holidays)
and has been entered as second clas.s mail matter at the post
office in Miami in said Miami-Dade County, -Rorida, for a
period of one year next preceding the flrs~ 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 securin s adve for pLibllcation In the said
Swom to and subscribed before me thIs
23 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 189526
Expires 0711612016
THE MIAMI HERALD I MiamiHerald.com
MIAMI
Santa to make a visit at mall
with special-needs children
Miami International Mall
will hold a holiday event
geared toward families with
special-needs children.
The Caring Santa event
takes place from 9:30 to
10:30 am. Dec, 2 and allows
families with children who
have special needs take a
photo with Santa while in a
subdued environment.
Caring Santa has been de-
veloped by Simon Property
Group and is guided by
AbilityPath,org, a national
online resource hub and
special-needs community.
The events typically re-
duce sensory triggers, such
as turning off in-mall music,
stopping escalators located
near the Santa set, dimming
the lights and shutting down
fountains during the dura-
tion of the event.
Caring Santa events also
eliminate lines through the
use of a numbering system
and include activities and
stories while children wait.
Participants are encour-
aged to RSVP by going to
wwwAbilityPath.org.
NEIGHBORS CALENDAR
• CALENDAR, FROM 26SE
make the city magical by hosting an
annual fund raising gala. This en-
chanting evening will pay special
tribute to the arts and those who
contribute their creative, artistic
genuis to our city ..
B p.m. Nov. 30. New World Sym-
phony, 541 Lincoln Rd ., Miami Beach ,
www.jlmiami.org/.
Fifth Annual Superlest -Presented
by Fox Sports Florida/SunSports:
SOUTH FLORIDA AFTER-SCHOOL
ALL-STARS SETS THE STAGE FOR
ONE OF SOUTH FLORIDA'S LARGEST
KIDS' HOLIDAY PLAYGROUNDS
Miami October 31, 2012. The South
Florida After School All-Stars is
preparing for its fifth annual Su-
perfest slated for December 1, 2012
from 9 a ..
9 a.m. Dec. 1. FlU Modesto A.
Ma,dique Campus, 11200 S.w. 8th
Street, University Park. Free/ Dona-
tion accepted. 305-576-4026.
sfasas.org.
Listeners/Oyentes Program: Non-
judgmental English-or Spanish-
speaking adults who relate well with
kids needed as sounding boards to
make a difference in the life of a
child; a Miami-Dade County Public
School program ..
9 a.m. Nov. 25. Listeners/Oyentes,
1450 NE Second Ave" Media and
Entertainment District.
305-935-0045.
wwwJistenersprogram.org .
Rotary Club Miami-Granada Meet-
ings at Big Five Club: Come join us
for an evening of fellowship. net·
working, and community service.
Weekly speakers & social fund raising
events. The only Spanish Speaking
Rotary Club in the U.S ...
7:45 p.m , Nov. 28 . Big Five Club,
600 SW 92nd Ave". $15 Dinner -
optional .
www.rotaryclubmiamigranada.org.
Rotary Club of Miami Luncheon
Meeting: Find out how you can
make a difference in our community,
have fun with others and how taking
a break from work on Thursdays can
be very rewarding.
You can see a list of upcoming
speakers, events and projects at our
website -www ..
12:15 p.m. Nov. 29. Hard Rock Cafe
Miami, 401 Biscayne Blvd" Down-
town Miami. $25.305-443-5787.
www.miamirotary.org.
The Education Fund's 2012 Celebrity
Teach-A-Thon Fundraiser: Pao Town
will host The Education Fund's 2012
Celebrity Teach-A-Thon Fundraiser at
6 p.m. on Wednesday, Nov. 28. Pao
Town and its owner Abe Ng, a
Teach-A-Thon volunteer. have gener-
ously offered to donate 15% percent
of all sales from 6 -9 p ..
6 p.m. Nov. 28. Pao Town, 2624
Ponce de Leon. Coral Gables. No cost
to participate. 305-892-5099 ext 14.
www.educationfund.org.
CIVIC/GOVERNMENT
Allapattah Neighborhood Associa-
tion Meeting: Group provides an
opportunity for the residents of
Allapattah to strengthen the com-
munity by sharing ideas and dis-
cussing the issues facing the neigh-
borhood. Meetings are held
monthly ..
6:30 p.m. Nov. 28. Village of
Allapattah YMCA Family Branch,
2370 NW 17th Ave" Allapattah.
allapattah.wordpress.com/.
CLUBS
Fly Sexy Fridays: Swaggafield Ent. &
King of Promotions Presents: Fly
Sexy Fridays @ Skyline Miami -Bar &
Lounge! First flight November 30th!
Ladies fly free until 121 Flight Tickets:
$20 the most sexiest exciusive flight
you will ever take ..
10 p.m. Nov. 30. Skyline Miami -
Bar & Lounge. 645 Washington
Avenue, Miami Beach , $20, Ladies
free until 12. 786-597-3933 .
www.skylinemia.com.
Goldcoast Chorus: Do you love to
sing? Goldcoast Chorus is seeking
adult women singers. We are an
acapella women's chorus singing in
4-part harmony. No experience is
necessary, just an ability to carry a
tune and a love of singing ..
7:30 p.m. Nov. 27. Dice House,
10000 SW 82nd Ave .. Kendall. Dues.
305-974-6334.
Monthly Game Day: New Neighbors
Club of South Dade invites game
loving folks to join us on the last
Wednesday of each month for game
day. Bring any game you choose (i.e.
Scrabble, Rummy Cube, Canasta.
etc ..
12 p.m. Nov. 28. Miami Elks Club
#948. 10301 SW 72 ST, Sunset. Free -
Attendees pay for their lunch.
305-279-3197.
Old Culler Republican Women's
Club: Join us for great speakers and
to discuss current events and topics.
RSVP: Joanne Connolly at
jdconn@hotmail.com or
305-253-4938.
6:30 p.m. Nov. 27. Red Lobster,
8705 SW 136th St.,. 305-299-8840.
www.republicansready.org.
Take 011 Pounds Sensibly (T.O.P.S.):
A weight loss program ..
9:30 a.m. Nov. 29. Killian Pines
United Methodist Church, 10755 SW
112th St., Kendall . $5 per month $28
per year. 305-598-1397.
COMMUNITY
4th Chakra: This concert has influ-
ences from North Indian Ragas &
Talas, Classical Western themes, a
little rock fusion, ethereal sounds
and some Americana in an eclectic
blend ,
Featuring: Vicki Richards -violin,
Jeff Deen -tabla, Mitch Kopp -guitar
Each musician is a leader, com-
poser, and improviser in his/her own
right"
2 p.m. Nov. 25. Arts at St. John's,
4760 Pine Tree Dr" Miami Beach. $20
at door. $15 Seniors or online. $5 at
door for students with I.D.s.
786-309-1275.
www.artsatstjohns.com.
AGUAVIVA by Cecilia Sanchez
Vegas: AGUAVIVA by Artist Cecilia
Sanchez Vegas presented at the
Caridi Gallery.
AGUAVIVA explores the Water
hexagonal molecule in all its splen-
• TURN TO CALENDAR, 28SE
SE SUNDAY, NOVEMBER 25, 2012 I 27SE
MOTORS
US-1 & South 160-180 Street in Miami southmotors.com
CITY OF SOUTH MIAMI
COURTESY NOTICE
NOTICE IS HEREBY given that the City Commission of the City of South Miami,
Florida will conduct Public Hearing(s) at its regular City Commission meeting
scheduled for Tuesday, December 4. 2012. beginning at 7:30 p.m., in the City
Commission Chambers, 6130 Sunset Drive, to consider the following item(s):
An Ordinance amending the development agreement originally adopted by
Ordinance No. 05-05-1827 and amended by Ordinance No. 18-05-1840
concerning the project known as "Project Sunset" and located generally at
5750 Sunset Drive, for the purpose of clarifying the effective date of the
agreement and term of agreement.
An Ordinance amending the Future Land Use Map of the South Miami
Comprehensive Plan by changing the future land use map category from
TODD (4+4 Story) to Hospital, for an area identified as 7031 SW 62 Avenue
(Larkin Community Hospital) -Folio #09-402S-027 -0010.
An Ordinance relating to a request to amend the official zoning map of the
City of South Miami land development code by changing the zoning use district
from "TODD MU-S" mixed use S to "H" hospital, for property located 7031 SW
62 Avenue (Larkin Community Hospital) -Folio #09-402S-027-0010.
A Resolution to consider the adoption of a development agreement proposed
by Metro South Senior Apartments Limited Partnership, pursuant to sec.70.51
and 163.322S, 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.
A Resolution related to a request for five variances from Section 20-3.S(E)
of the City's Land Development Code, to allow a 37.S feet of frontage where
60 feet of frontage is required; to allow the lot area of 3,S25 square feet
where 6,000 square feet is required; to allow 12 foot front setback when
2S feet is required; to allow a side street setback of 6.67 feet where 15 feet
is required; and to allow maximum building coverage of 37% where 30%
is required, to construct a LEED Certified single family affordable home
on a nonconforming lot of record in an RS-4 zoning district, located at the
NE corner of SW 62 Ave. and SW 62 Terrace.
ALL interested parties are invited to attend and will be heard.
For further information, please contact the City Clerk's Office at: 30S-663-6340.
Maria M. Menendez, CMC
City Clerk
Pursuant to Florida 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 meeting 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.
MIAMI DAILY BUSINESS REVIEW
Published Oaily except Saturday, Sunday and
Legal Holidays
Miami, Miami·Oade 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
heretofore 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 . advert! I 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 Commluion EE 189526
Explrea 07/18/2016