5aTHE CITY OF PLEASANT LIVING
CITY OF SOUTH MIAMI
OFFICE OF THE CITY MANAGER
INTER-OFFICE MEMORANDUM
To: The Honorable Mayor & Members of the City Commission
To: Steven Alexander, City Manager
DATE: June 16, 2015 Agenda Item No.: 5(eL)
FROM: Dwayne Williams, Director of Planning
SUBJECT:
A Resolution accepting the annual report required by the South Miami Development
Corporation development agreement with the City of South Miami.
BACKGROUND:
In March 2005, the City Commission approved a mixed use project entitled "Project Sunset"
located at 5750 Sunset Drive. The project is a unified development covering 2-Yz blocks (4.5
acres) in the Hometown District that includes 108 residential units and 87,212 square feet of
commercial space. The approval included the approval (by Resolution #31-05-12010) of two
special exceptions to allow lot coverage and building square footage to exceed the maximums
permitted and to allow four (4) drive-through teller lanes where only two are permitted. A
second item approved was an ordinance to accept a site plan for the project and a
Development Agreement pursuant to Florida Statutes 163.3220-163.3243 via Ordinance #05-
05-1827.
In June of 2005, the City Commission approved an amendment to the development agreement
via Ordinance #18-05-1840. This amendment consisted of two (2) changes to the development
agreement. The first change was to the phasing of the project which can be found in Section 4
titled "Use of Property." The second change was to Section 5(b), entitled "Public Facilities
Serving the Project." This change modified the projects responsibility in meeting park and
recreation concurrency. While construction of the project has not yet commenced, the
developer did initiate a process to change the project site plan, the special exceptions granted,
and the Development Agreement itself in 2008. However, the developer did notify the City that
the proposed changes have been put on hold.
The Development Agreement, although adopted by the City in March 2005, was not signed
(executed) by both parties until December 26, 2007. This agreement was further updated on
December 4, 2012 (Ordinance #28-12-2144) following a public hearing where the City
Commission approved and amended the development agreement and on February 27, 2013,
this revised development agreement was recorded with the county. The amended
development agreement is listed as Exhibit "2" of the backup material.
South Miami Corporation Annual Report -5750 Sunset Drive
June 16, 2015
Page 2 of 3
The 2014 Annual report was submitted to the City on May 8, 2015 by Mr. Jerry Proctor, Esq.,
representing the developer, South Miami Corporation and is listed as Exhibit "1". The report
concludes that all of the obligations set forth in the Development Agreement are met. The
executed Development Agreement and amendments are attached.
At the June 2, 2015 City Commission meeting; a motion to defer the South Miami Development
Corporation Annual Report passed by 5-0 pending a resubmission of a full section by section
report to the Commissioners.
The annual report must be reviewed by the City Commission at a public meeting, where they
may accept the report.
RECOMMENDATION:
The submitted report is in compliance with the terms ofthe Agreement and it is recommended
that the report be accepted by adoption of the attached resolution.
ATTACHMENTS:
• Exhibit 1
• 2014 South Miami Corporation Annual Report, dated May 8,2015
• Development Agreement, recorded on February 7,2008
• Exhibit 2
• Amended Development Agreement, recorded on February 27, 2013
• Ordinance #18-05-1840
• Ordinance #28-12-2144
• Resolution #31-05-12010
MWl
Z: \Commission Items\201S\06-16-1S\South Miami Development AgreemenCCM Report.docx
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RESOLUTION NO. ________ _
A Resolution accepting the annual report required by the South Miami
Development Corporation development agreement with the City of South
Miami.
WHEREAS, in March, 2005 the City Commission approved a mixed use project entitled
"Project Sllllset" located at 5750 Sllllset Drive, which project is a llllified development covering
1-Yz blocks (4.5 acres) in the Hometown District and includes 108 residentialllllits and 87,212
square feet of commercial space.; and
WHEREAS, a Development Agreement was executed between the City of South Miami
and the South Miami Corporation by the adoption of Ordinance No. 05-05-1827 in March 2005
and is legally considered effective for a maximum period of 10 years from the effective date of
February 7,2008; and
WHEREAS, the Development Agreement includes the requirement (Section 27, p.l3)
that the developer submit an armual report 30 days before the armiversary of the effective date
which report is a status report showing that obligations have been met and that there has been
compliance with the provisions of the Agreement. A copy of the Annual Report is attached as
Exhibit "1"; and
WHEREAS, on December 4, 2012 following a public hearing, the City Commission
approved an amended development agreement; and
WHEREAS, on February 27, 2013, the revised development agreement was recorded
and is attached as Exhibit "2"; and
WHEREAS, the revised armual report submitted to the Plarming & Zoning Department
on Jlllle 9, 2015 in accordance with the Development Agreement, must be reviewed by the City
Commission at a public meeting and the City Commission may accept the report or if there is a
finding by the Commission that there has been a failure to comply with the terms of the
Development Agreement, the Agreement may be revoked or modified by the City.
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA:
Section 1: The 2014 Annual Report of the South Miami Corporation (First National
Bank of South Miami) on their proposed "Project Sllllset" located at 5750 Sllllset Drive as
required by Section 27 of the Development Agreement, a copy of which is attached, is hereby
approved.
Section 2. Effective Date. This resolution shall become effective immediately upon
adoption by vote of the City Commission.
PASSED AND ADOPTED this __ , day of ___ , 2015.
1 ATTEST: APPROVED:
2
3 CITY CLERK MAYOR
4
5 READ AND APPROVED AS TO FORM, COMMISSION VOTE:
6 LANGUAGE, LEGALITY AND Mayor Stoddard:
7 EXECUTION THEREOF Vice Mayor Harris:
8 Commissioner Liebman:
9 Commissioner Welsh:
10 Commissioner Edmond:
11 CITY ATTORNEY
12
~~ Bilzin Sumberg
ATTORNEYS AT LAW
Jerry B. Proctor, Esq.
Tel 305.350.2361 • Fax 305.351.2250
jproctor@bilzin.com
June 9,2015
REVISED
Mr. Dwayne Williams
Planning Director
City of South Miami
6130 Sunset Drive
South Miami, Florida 33143
Re: South Miami Corporation
Property: 5750 Sunset Drive and 1-112 blocks to the south and
southwest, City of South Miami
Tax Folio Numbers: 09-4036-022-0060, 09-4036-022-0070, 09-4036-
022-0400, 09-4036-022-0410, 09-4036-022-0450, 09-4036-022-0420, 09-
4036-022-0430, 09-4036-022-0320, 09-4036-022-0310, 09-4036-022-
0300, 09-4036-022-0330, and 09-4036-022-0290
Annual Report of Development Agreement
Dear Mr. Williams:
This law firm represents the owner, South Miami Corporation ("Owner"), of the property
located at 5750 Sunset Drive and the 1-1/2 blocks to the south and southwest, South Miami,
Florida ("Property"), The Property includes the twelve (12) folio numbers referenced above, and
includes the headquarters of the First National 8ank of South Miami.
The Owner and the City of South Miami ("City") entered into a Development Agreement
("Agreement") related to the development of the Property. The Development Agreement, a
copy of which is attached as Exhibit "A", was approved by the City Commission and was
recorded in the Public Records on February 7, 2008, On December 4, 2012, by public hearing
approval of the City Commission, an Amended Development Agreement (the "Updated
Development Agreement") was approved, The revised Development Agreement was recorded
on February 27, 2013 and is attached as Exhibit "8", In accordance with Section 27 of the
Updated Development Agreement, the Owner is required to submit an Annual Report to the
City. Please accept this correspondence as the Annual Report, This submittal supplements the
earlier submittal dated May 8, 2015 and addresses each clause in the updated Development
Agreement.
The development contemplated in the Updated Development Agreement, approved by
the City Commission has not commenced, As a result, the following commitments remain
outstanding and will apply at the time building permit permits from the City are sought:
BILZIN SUMBERG BAENA PRICE & AXELROD LLP MIAMI 462839Q,1 76813/29325
1450 Brickell Avenue, 23rd Floor, Miami, FL 33131-3456 TeI305,374,7580 Fax 305.374,7593 www.bilzin.com
Page 2
June 9, 2015
4. Use of the Property. The property described in Exhibit "A" is to be utilized for the
project described in Exhibit "C": a mixed use residential, office and retail project
with a residential use not to exceed 1 08 dwelling units on approximately 4.5 +/-
acres. The project will include "chamfered" corners where it abuts roadway
intersections pursuant to Exhibit "C". The occupied space of the project will not
exceed four stories or fifty six (56) feet in height unless otherwise permitted by
the South Miami comprehensive plan or its land development regulations. The
total of occupied space of the project shall not exceed four stories. Non-occupied
space shall not exceed a maximum height of fifty six feel. The project shall be
built in two phases as follows:
• Phase I shall consist of Blocks "A" and "B" described in Exhibit "C".
• Phase II shall consist of Block "C" described in Exhibit "C".
• The Company may elect to implement the development plan in one
phase.
• The Company may elect to utilize Block "C" as a temporary bank facility
with drive-through lanes (not to exceed four lanes) which facility shall be
removed upon the issuance of the Certificate of Occupancy for the Bank
facility on Block "A".
The overall development of the property shall be conducted in accordance with
the approved site plan on file at the City, (attached and incorporated as Exhibit
"B") including elevations, architectural features and estimated commercial square
footage pursuant to Section 20.3-7, of the LDC.
5. Public Facilities. In order to enhance public facilities in the City of South Miami,
the Company agrees to provide the services listed below in compliance with
Section 20-4.1 of the LDC, including;
(a) Roadways
An operational traffic study was conducted by the city and the Company
agrees to the recommendations of city staff as set forth in their staff report
which recommendations are incorporated herein by reference.
(b) Parks and Recreation
Based on the projected residential population on the Property, Company
agrees to donate $232,000 in one lump sum as its responsibility for
meeting park and recreation concurrency. Payment shall be made on or
before receipt of the first building permit and shall include any interest or
carrying cost incurred by the City until receipt of the paymenl."
(c) Sanitary Sewers
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Water and Sewer services that comply with all requirements of Miami-
Dade County for any building prior to issuance of a final Certificate of Use
and Occupancy.
(d) Solid Waste
Solid Waste services that comply with all requirements of Miami-Dade
County for any building prior to issuance of a final Certificate of Use and
Occupancy.
(e) Schools
The Company commits to pay upon the issuance of the initial certificate of
occupancy any required Miami-Dade County School Board school impact
fees.
6. Concurrency. The City of South Miami has determined that the Company's
performance under the Agreement satisfies the concurrency requirements, as
delineated in Section 20-4.1, City Code. By execution of this Agreement, the City
acknowledges that the application for site plan approval meets all concurrency
regulations enumerated in Section 20-4.1 of the City Code, and that the site plan
application and this Agreement are consistent with the City Comprehensive Plan
and Land Development Regulations.
7. Permits. The permits preliminarily identified as necessary for development of the
project are described as follows:
(a) Special Exception to permit four drive-through teller lanes within the site.
(b) Special Exception to provide 72.2% +/-Iot coverage.
(c) Special Use permit to permit up to four restaurants with a maximum total
of 13,820+/-square feet with parking to be supplied from any excess
parking within the site. Retail and restaurant parking shall be marked and
signed.
8. Development Conditions. The following conditions shall apply to the
development of the project:
(a) The Company shall meet all applicable building codes, land development
regulations, ordinances and other laws.
(b) The Company shall adhere to the requirements of all permits for the
project.
(c) The Company shall develop the project in conformance with the
parameters set forth in this agreement.
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caps.
(d) All development shall be in accord with the site plan submitted with the
special exception and special use applications, said site plan incorporated
in Exhibit "C".
(e) The Company shall provide the Department of Planning with a temporary
parking plan, including an operational plan, which addresses construction
employee parking during the construction period, said plan shall include
an enforcement plan and shall be subject to the review and approval by
the planning director prior to the issuance of any building permits and
shall be enforced during construction activity.
(f) All conditions imposed by the City Commission shall be incorporated in
this Development Agreement.
(g) Company shall reimburse the City its lost parking revenue from any
metered parking spaces adjacent to the Property which it occupies or
uses during the construction period.
(h) The Company shall donate to a city trust fund $40,000.00 to be used by
the city for traffic calming or other traffic mitigation programs within the
City of South Miami. This money shall be donated to the City, prior to the
issuance of its first building permit.
16. Work Force. The Company agrees to use its best efforts to enhance job
opportunities for local citizens in connection with the project. To that end and in
order to maximize job opportunities for applicants from South Miami, the
Company shall send notice to the Community Redevelopment Agency Director of
the City of South Miami, or a substitute designee by the City Manager, regarding
employment opportunities related to any (1) construction work on the Property,
(2) temporary or permanent maintenance work on the Property, or (3) proposals
for leasing of retail space or employment opportunities associated with retail
space located on the Property.
36. Abandonment of Right-of-Way. The Company agrees to use its best efforts to
enhance job opportunities for local citizens in connection with the project. To that
end and in order to maximize job opportunities for applicants from South Miami,
the Company shall send notice to the Community Redevelopment Agency
Director of the City of South Miami, or a substitute designee by the City Manager,
regarding employment opportunities related to any (1) construction work on the
Property, (2) temporary or permanent maintenance work on the Property, or (3)
proposals for leasing of retail space or employment opportunities associated with
retail space located on the Property.
In addition, please note the following clauses, and the update following each clause in
1. Incorporation of Recitals. The recitals set forth above are true and correct and are
incorporated herein by this reference. THIS CLAUSE IS UNCHANGED.
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2. Property. The Company owns the property as described in Exhibit "A". This
property is deemed to be one unified parcel and is subject to the unity of title
pursuant to the requirements of sections 20-7.30 and 20-5.14 of the City Land
Development Code (the "LDC") attached hereto as Exhibit "0". THE COMPANY
REMAINS PROPERTY OWNER OF THE LAND DESCRIBED IN EXHIBIT "A".
3. Effective Date; Duration of Agreement. This Agreement shall be effective as of
June 14, 2005 (the "Effective Date"), the date that the City passed and adopted a
resolution agreeing to the terms and conditions of the first Amended
Development Agreement. This Agreement, as currently amended, shall terminate
ten years from the Effective Date of this Agreement, unless otherwise extended
or terminated as provided for herein or in the act. The maximum period of this
agreement shall be ten (10) years from the Effective Date unless extended by
mutual consent of all legal and equitable owners of the Property and the city
upon approval at a public hearing, as provided in the Act. THE COMPANY
SOUGHT AMENDMENT OF THE DEVELOPMENT ORDER, TO EXTEND THE
EFFECTIVE DATE, BY APPLICATION IN MAY 2015. THE REQUEST WAS
DENIED BY THE CITY COMMISSION ON JUNE 2,2015.
9. Consistency with City of South Miami Comprehensive Plan and Land
Development Regulations. The city has adopted a Comprehensive Plan and
Land Development Regulations in accordance with Chapter 163, Part II, Florida
Statutes. The city finds that the project is consistent with the city's
comprehensive plan and the city's land development regulations. The project, a
mixed use residential, office and retail development, as set forth herein, is
consistent with the "Mixed-Use Commercial/Residential (Four Story)" deSignation
on the future land use map, and the HD-OV zoning district on the Official Zoning
Atlas of the City of South Miami. Goal 2 of the Future Land Use Element
identifies the home town district which consists of the "Hometown District Overlay
Zone," as defined in Article VII, sections 20-7.1 through 20-7.52 of the city's land
development regulations. THE PROJECT REMAINS CONSISTENT WITH THE
COMPREHENSIVE PLAN AND LAND DEVELOPMENT REGULATIONS IN
PLACE AT THE EFFECTIVE DATE.
10. Vesting. As long as the development on the Property is in compliance with this
Development Agreement, and all applicable laws, ordinances, codes and poliCies
in existence on June 14, 2005 as well as other requirements imposed by the City
Commission upon the ratification of the site plan approval on the Property, the
Property shall not be the subject of a down zoning application by the City and
shall not be subject to any development moratorium, referenda action,
ordinances, policies, or procedures enacted by the City that limits the
development contemplated by this Agreement and depicted in the site plan. Any
failure by this Agreement to address a particular permit, condition, term or
restriction shall not relieve the Company of the necessity of complying with the
law governing said permitting requirements, conditions, terms or restrictions.
THERE HAS NOT BEEN DOWNSIZING OF THE PROPERTY OR LIMITATIONS
IMPOSED BY THE CITY TO LIMIT THE DEVELOPMENT.
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11. Permits, Conditions, Terms and Restrictions not Addressed. The failure of this
agreement to address a particular permit, condition, term or restriction shall not
relieve the Company or the city of the necessity of complying with the law
governing said permitting requirements, conditions, terms, or restrictions.
THERE HAVE BEEN NO PERMITS, CONSITIONS, TERMS AND
RESTRICTIONS THAT HAVE ARISEN THAT ARE NOT IN THE UPDATED
DEVELOPMENT AGREEMENT.
12. Duration of Permits. The Company acknowledges that this agreement does not
extend the duration of any permits or approvals. THIS ACKNOWLEDGEMENT
REMAINS IN EFFECT.
13. Law Governing Development of the Property. The ordinances, policies and
procedures of the City of South Miami concerning development of the property
that are in existence as of the Effective Date of this agreement shall govern the
development of the property for the duration of the term of this agreement. No
subsequently adopted ordinances, policies, or procedures shall apply to the
property except in accordance with the provisions of section 163.3233 (2),
Florida Statutes, and Ordinance No. 05-05-1827, as attached. THIS
PROVISION REMAINS IN EFFECT.
14. Termination. This agreement may be terminated by mutual written consent of
the city and Company, subject to the terms and conditions herein. Either party
may terminate this Agreement if the other party commits or allows to be
committed any material breach of this Agreement. A "material breach" of this
Agreement shall include, but not be limited to, a failure of either party to perform
any material duty or obligation on its part for any thirty (30) consecutive day
period. Neither party may terminate this Agreement on grounds of material
breach of this Agreement unless it has provided written notice to the other party
of its intention to declare a breach and to terminate this Agreement (the "Notice
to Terminate") and the breaching party thereafter fails to cure or take steps to
substantially cure the breach within sixty (60) days following the receipt of such
Notice to Terminate, with the exception of monetary breaches which shall be
cured within thirty (30) days after receipt of notice. THERE HAVE BEEN NO
ATTEMPTS TO TERMINATE THE AGREEMENT IN THE PAST YEAR.
15. Assignment. This Agreement may not be assigned by the Company except to an
affiliated entity, without the prior written consent of the City. Subject to the
preceding sentence this Agreement shall be binding upon the successors,
assigns, and representatives of the parties hereto. An affiliated entity is an entity
of which South Miami Corporation or a majority of its shareholders, directly or
indirectly owns at least 51% of the beneficial interest. THERE HAS BEEN NO
ASSIGNMENT OF THE AGREEMENT.
17. Joint Preparation. This Agreement has been drafted with the participation of the
city and Company and their counsel, and shall not be construed against any
party on account of draftsmanship. THERE IS NO CHANGE TO THIS
PROVISION.
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18. Binding Effect. The burdens of this Agreement shall be binding upon, and the
benefits of this agreement shall inure to, all successors in interest to the parties
of this agreement. THERE IS NO CHANGE TO THIS PROVISION.
19. Captions and Headings. Paragraph headings are for convenience only and shall
not be used to construe or interpret this Agreement. THERE IS NO CHANGE
TO THIS PROVISION.
20. Applicable Laws, Jurisdiction and Venue. This Agreement shall be governed by
and interpreted, construed, and enforced in accordance with the internal laws of
Florida without regard to principles of conflicts of law. This agreement may be
enforced as provided in Section 163.3243, Florida Statutes. Venue for any
litigation pertaining to the subject matter hereof shall be exclusively in Miami-
Dade County Florida. THERE IS NO CHANGE TO THIS PROVISION.
21. Enforcement. In any litigation arising out of this agreement, the prevailing party
shall be entitled to recover its costs and attorneys fees. Attorney's fees payable
under this paragraph shall not exceed 25% of the amount of damages awarded
to the prevailing party and no party shall be entitled to pre-judgment interest. In
any injunctive or other action not seeking damages under this paragraph, legal
fees may be awarded in the discretion of the court, but shall be reasonable and
shall not exceed an hourly rate of $300.00 per hour. THERE IS NO CHANGE
TO THIS PROVISION.
22. Inspection. Nothing in this Agreement shall be construed to waive or limit the
City's governmental authority as a municipal corporation and political subdivision
of the State of Florida. The Company therefore understands and agrees that any
official inspector of the City of South Miami, or its agents duly authorized, have
the right to enter, inspect and investigate all activities on the premises to
determine whether the Property complies with applicable laws including but not
limited to building and zoning regulations and the conditions herein. THERE IS
NO CHANGE TO THIS PROVISION.
23. Authorization to Withhold Permits and Inspections. In the event the Company is
obligated to make payments or improvements under the terms of this Agreement
and such payments are not made as required, or such improvements are not
made as required, in addition to any other remedies available, the City of South
Miami is hereby authorized to withhold any further permits on the portion of the
Property failing to comply with this Development Agreement, and refuse any
inspections or grant any approvals, with regard to that portion of the Property
until such time this Development Agreement is complied with. THERE IS NO
CHANGE TO THIS PROVISION.
24. Representations of the Company. The Company represents to the City as
follows:
(a) The execution, delivery and performance of this Agreement and all other
instruments and agreements executed in connection with this Agreement
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have been properly authorized by the Company and do not require further
approval by Company.
(b) This Agreement has been properly executed, and constitutes Company's
legal, valid and binding obligations, enforceable against Company in
accordance with its terms.
(c) There are no actions, suits or proceedings pending or threatened against
or affecting Company before any court or governmental agency that
would in any rnaterial way affect Cornpany's ability to perform this
Agreement.
(d) Company shall not act in any way whatsoever, directly or indirectly, to
cause this Agreement to be arnended, rnodified, canceled, or terrninated,
except pursuant to its express terms, and shall take all actions necessary
to ensure that this Agreement shall remain in full force and effect at all
times.
(e) Company has the financial capacity to payor advance to the City all fees
and payments as required under this Agreement.
THERE IS NO CHANGE TO THIS PROVISION.
25. Severability. In the event that any of the covenants, agreements, terms, or
provisions contained in this agreement shall be invalid, illegal, or unenforceable
in any respect, the validity of the remaining covenants, agreements, terms, or
provisions contained herein shall be in no way affected, prejudiced, or disturbed
thereby. THERE IS NO CHANGE TO THIS PROVISION.
26. Waivers. No failure or delay by Company or the City to insist upon the strict
performance of any covenant, agreement, term or condition of this Agreement, or
to exercise any right or remedy consequent upon the breach thereof, shall
constitute a waiver of any such breach or any subsequent breach of such
covenant, agreement, term or condition. No covenant, agreement, term, or
condition of this Agreement and no breach thereof shall be waived, altered or
modified except by written instrument. No waiver of any breach shall affect or
alter this Agreement, but each and every covenant, agreement, term and
condition of this Agreement shall continue in full force and effect with respect to
any other then existing or subsequent breach thereof. THERE IS NO CHANGE
TO THIS PROVISION.
27. Annual Report and Review. It shall be the responsibility of the Company to
submit an annual report to the City sufficient to fulfill the requirements as stated
in the provisions of Section 163.3235, Florida Statutes, and Ordinance No. 05-
05-2005. This agreement shall be reviewed annually on the anniversary of the
Effective Date of this Agreement. The Company, or its assign, shall submit an
annual report at least 30 days prior to the annual review date following the first
annual report submitted in 2012 which shall be filed 30 days following the
execution of this Amended Development Agreement. All annual reports shall
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June 9, 2015
contain a section-by-section listing of what obligations have been met and the
date finalized, as good faith compliance with the terms of the agreement. The city
commission shall review the annual report at a public meeting. If the City
Commission finds, on the basis of substantial competent evidence, that there has
been a failure to comply with the terms of the Agreement, the Agreement may be
revoked or modified by the City. The obligation to submit an annual report shall
conclude upon the date on which the agreement is terminated. ANNUAL
REPORTS HAVE BEEN TIMELY SUBMITTED AND APPROVED BY THE CITY
COMMISSION.
28. Notices. Any notices or reports required by this Agreement shall be sent to the
following:
For the City:
Copy to:
For the Company:
Copy to:
City Manager
City of South Miami
6130 Sunset Drive
South Miami, Florida 33143
Planning Director
Planning and Zoning Department
City of South Miami
6130 Sunset Drive
South Miami, Florida 33143
South Miami Corporation
Attn: Bruce W. MacArthur,
Chairman of the Board
5750 Sunset Drive
South Miami, Florida 33143
And
Nadine Heidrich
Chief Financial Officer
Wirtz Corporation
680 N. Lake Shore Drive
Suite 1900
Chicago, Illinois 60611
Jerry B. Proctor, Esq.
Bilzin Sum berg Baena Price & Axelrod LLP
1450 Brickell Ave., Suite 2300
Miami, Florida 33131-3456
THERE IS NO CHANGE TO THIS PROVISION.
29. Exhibits. All exhibits attached hereto contain additional terms of this Agreement
and are incorporated herein by reference. THERE IS NO CHANGE TO THIS
PROVISION.
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30. Amendment. This Agreement may be amended by mutual written consent of the
city and Company so long as the amendment meets the requirements of the act,
applicable city ordinances and Florida law. THERE IS NO CHANGE TO THIS
PROVISION.
31. Entire Agreement. This Agreement represents the entire agreement and no prior
or present agreements or representations shall be binding upon either the city or
Company, unless specifically incorporated herein by reference, whether such
prior present agreements have been made orally or in writing. Each party
affirmatively represents that no promises have been made to that party that are
not contained in this Agreement, and the Exhibits, and stipulates that no
evidence of any promises not contained in this Agreement, and the Exhibits, shall
be admitted into evidence on its behalf. This Agreement shall not be
supplemented, amended or modified by any course of dealing, course of
performance or uses of trade and may only be amended or modified by a written
instrument duly executed by officers of both parties. THERE IS NO CHANGE
TO THIS PROVISION.
32. Third Party Beneficiary. This Agreement is exclusively for the benefit of the
parties hereto and their Affiliates and it may not be enforced by any party other
than the parties to this Agreement and shall not give rise to liability to any third
party other than the authorized successors and assigns of the parties hereto.
THERE IS NO CHANGE TO THIS PROVISION.
33. Period of Time. Whenever any determination is to be made or action is to be
taken on a date specified in this Agreement, if such date shall fall on a Saturday,
Sunday or legal holiday, then in such event said date shall be extended to the
next day which is not a Saturday, Sunday or legal holiday. THERE IS NO
CHANGE TO THIS PROVISION.
34. Counterparts. This Agreement may be executed (including by facsimile) in one
or more counterparts, and by the different parties hereto in separate
counterparts, each of which when executed shall be deemed to be an original but
all of which taken together shall constitute one and the same agreement.
THERE IS NO CHANGE TO THIS PROVISION.
35. Recordation. Within 20 days after the Amended Development Agreement has
been signed by both the Company and the City, the City shall cause a copy of
the Amended Development Agreement to be recorded at the City's expense in
the registry of deeds in Miami-Dade County. THERE IS NO CHANGE TO THIS
PROVISION.
36. Abandonment of Right-of-Way. The City agrees to abandon the right-of-way
adjacent to the property to the buildable line. The Company shall
contemporaneously grant to the City an easement from the right-of-way adjacent
to the property to the buildable line for all future needs of the City. To ensure that
the proposed structure does not interfere with the City's future needs, any
permanent structure extending out over the City's easement shall provide the
City with clearance as provided in the Hometown Overlay District in the Land
MIAMI 4628390.1 76813/29325 10
e-.;:) BILZIN SUMBERG BAENA PRICE & AXELROD LLP
Page 11
June 9, 2015
Development Code (10-feet minimum). THERE IS NO CHANGE TO THIS
PROVISION.
Please give me a call if you have any questions.
JBPlwp
cc: Steven Alexander, City Manager
Thomas Pepe, Esq., City Attorney
Bruce MacArthur
Veronica Flores
Don Vitek
Nadine Heidrich
Maria Menendez, City Clerk
MIAMI 4628390.1 76813/29325
(~ BILZIN SUMBERG BAENA PRICE & AXELROD LLP
Sincerely,
f2i{~
11
" a,' .
EXHIBIT "An 111111111111111111111111111111111111111111111 CFH 2008R010+490
OR Bk 26203 P.s 1380 -HOll (22,ss)
RECORDED 1)2/0712008 10.53.06
HARVEY RUVIH, CLERK Of COURT
MIAMI ~OAOE CDUHTY, FLORIDA
THIS DKVELOPMJUI'l' ~ (~Agreement") is made as of
!Ian" j age. June U, 2005 by and between THE CITY OF --,
SOUTH MIAMI, FLORIDA a municipal corporation ("City") and
SOUTH MIAMI CORPORATION ("Company") or its assignee,
iU!lct'.l'ALS
WBlUUi:AS, the Florida Local Government De,velopment
Agreement Act, set forth in sections 163.3220 -163.3243,
Florida Statutes, set forth in Exhibit "A" (the "Act")
provides for the execution of development agreements for a
term not to exceed ten (10) years to insure that the law in
effect at the time of the execution of the development
agreement shall govern the development of the land for the
duration of the agreement; and
WHEREAS, the city commission of the City of South
Miami has adopted Ordinance No. 05~05-1827 which implements
the Act and permits the consideration and the adopt'ion of
this agreement; and
HHZRlI:AS, the Company owns approximately 4.5+/-acres,
zoned HD-OV, described in Exhibit ":8," (the "Property");
and
WBBREAS, the Company desires to construct a mixed use
development encompassing retail, -office and residential
components described in Il:xhibit "C," (the "Project") in the
Hometown District Overlay Zone within the City of South
Miami.
Paqe 1 of 17
Book26203/Page1380 CFN#20080 104490 Page 1 of 22
"
'.
NOW, TH2REFORE, in consideration of the above recitals
and the following covenants, terms and conditions the
receipt and sufficiency of which are expressly
acknowledged, the city and Company covenant and agree as
follows:
1. Incoxporation of RAcita1 •. The recitals set forth
above are true and correct and are incorporated herein by
this reference.
2. Property. The Company owns the property as
described in. Exhibit "A". This property is deemed to be one
unified parcel and is subject to the unity of title
pursuant to the requirements of sections 20.7.30 and 20-
5.14 of the City Land Development Code (the "LDC") attached
hereto as Exhibit "0".
3. Effective Da~.; Duration of Agreement. This
agreement shall become effective after it has been recorded
in the public records of Miami-Dade County and thirty (30)
days after it is received by the Florida Department of
Community Affairs (the "Effective Date"). This agreement
shall terminate ten years from the effective date of this
agreement, unless otherwise extended or terminated as
provided tor herein or in the act. The maximum period of
this agreement shall be ten (10) years from the effective
date unless extended by mutual consent of all legal and
equitable owners of the Property and the city upon approval
at a public hearing, as provided in. the act.
4. U.e of Property. The property described in Exhibit
"A" is to be utilized for the project described in Exhibit
"C": a mixed use residential, office and retail project
with a residential use not to exceed 108 dwelling units on
Page 2 of ).'1
Book26203/Page1381 CFN#20080104490 Page 2 of 22
'"
approximately 4.5 T/-acres. The project will include
"chamfered" corners where it abuts roadway intersections
pursuant to Exhibit "C", The occupied space of the project
will not exceed four stories or fifty six (56) feet in
height unless otherwise permitted by the South Miami
comprehensive plan or its land development regulations. The
total of occupied space of the project shall not exceed
four stories. Non-,occupied space shall not exoeed a maximum
height of fifty six feet. The project shall be built in two
phases as follows:
• Phase I shall consist of Blocks "A"l and ~"B"
described in Exhibit "C".
• Phase II shall consist of BlOCk "'"'" "C"described
in Exhibit "C".
• ~he Campanx may elect to
davalOE!l!!nt plan in Ontl pha.e.
• ~he Company III&Y elect to utilize Block "C" all II
t!ll!POr.uy bank facility with ddva-throuqh lane.
(not to exceed fel"" lan .. ) which facUlty shall
be removed !!pon the i •• uance of the Certificate
of ocaupancy for the Bank f&Oil1 ty on Blook "A".
The overall development of the property shall be
conducted in accordance with the approved site plan on file
at the City, (attached and incorporated as Exhibit "B")
including elevations, architectural features and estimated
commercial square footage pursuant to Seotion 20.3-7, of
the LOC.
5. PUblic Facilities Serving the Project. In order to
enhance public faoilities in the City of South Miami, the
Page 3 of l7
Book26203/Page1382 CFN#20080104490 Page 3 of 22
,.
Company agrees to provide the services listed below in
compliance with Section 20-4.1 of the LDC, including:
(al Roadways
An operational traffic study was conducted. by
the city and the Company agrees to the
recommendations of city staff as set forth in
their staff report which recommendations are
incorporated herein by reference.
(n) Parks and Recreation
Based on the projected residential popUlation
on the Property, Company agrees te pa) , ••• _
"ret/iEie • e ae!!'es e!@' laJlui aeeefl'Eaele 1!e ltoRe
Git!y 'el! a ,lIjsJ:ie lill)!')', 11\ tiRe. &l~e!!fta'i:; Sf
1!!iiae 8ibhtpa:fi:l lMal ,1'8. !s.e a "e1!ea1:!:!b:el!:fee pay",~P1~}'
.eases eft 'efts 8:V8!!'8:!e aale" ,:I!izee 8E
l!e8l:l'ieft~ial J!I!!'!lpeJ!'4!y :if!: ~ke !!II!:1:y e.e ... }lte ltae1:!
~ea!': iJ?ke ;e""sP:!t'e P&Yftt$ft'e:"sAB11 lse plaeel!i 5::"
I!l ap.sial il:!!ui fsS! el:U$neU:ftg eft 8Bf!1i.'6al
'ftl!J:reh elften, 8 tee ,a1P15 ana reel'eaeieft iaeioli:i::i:Be
iH efte 9:4:e): 'i'he PaytfteR1! shall lJe 1ft8a13 :l:" eRe
lem, 8~M 8fl e~ ~e£eee a Ge~~'i~eeae BE gee efta
Q81I14,_8) '8 !Waht!isa jete 'he iil'sa ifeeioaef!:t!ksl
tif\i~ eft eke Pl!'epe~t:); to dol1&~ $232,000 in
one ~ump s_ .. ita responsibility for _et:l.nq
park and recreation concurrency. Paymant shall
be III&da on or before receipt of the first
building pe:r:mit and. shall include any interest
or carrying cost incurred by the City until
",eceipt of the paymant."
(c) Sanitary Sewers
Water and Sewer services that comply with all
requirements of Miami-Dade County for any
building prior to issuance of a final
Certificate of use and Occupancy.
Page 4 of 17
Book26203/Page1383 CFN#20080104490 Page 4 of 22
;.
(d) Solid Naste
Solid Naste services that comply with aU
requirements of Miami-Dade County for any
building prior to issuance of a final
Certificate of Use and Occupancy.
(e) Schools
The Company commits to pay upen the issuance
of the initial certificate of occupancy any
required Miami-Dade County School Board sChool
impact fees.
6. Concurrency. The City of South Miami has determined
that the
Agreement
Company's
satisfies
performance under
the concurrency
the Development
requirements r as
delineated in Section 20-4.1, City Code. By e><ecution of
this Agreement, the City acknowledges that the application
for site plan approval meets all concurrency regulations
enumerated in Section 20-4.l of the City Code, and that the
site plan application and this Agreement are consistent
with the City Comprehensive Plan and Land Development
Regulations.
7. Permita. The permits preliminarily identified as
necessary for development of the project are described as
follows:
(a) Special E><ception to permit four drive-
through teller lanes within the site.
(b) Special Exception to provide 72 .2% +/-lot
coverage.
(c) Special Use permit to permit up to four
restaurants with a maximum total of 13,820+/-
square feet with parking to be supplied from any
Page 5 of 17
Book26203/Page 1384 CFN#20080 104490 Page 5 of 22
~~~~~~------.--... --.. --.-~~~--~~~~~~~~~~~~~--
"
'.
excess parking within the site. Retail and
restaurant parking shall be marked and signed.
8. Development Conditions. The following conditions
shall apply to the development of the project:
(a) The Company shall meet all applicable
building codes, land development regulations,
ordinances and other laws,
(b) The Company shall adhere to the requirements
of all permits for the project.
Ic) The Company shall develop the project in
conformance with the parameters set forth in this
agreement.
Id) All development shall be in accord with the
site plan submitted with the' special exception
and speCial use applications, said site plan
incorporated in Exhibit "C".
(e) The Company shall provide the Department of
Planning with a temporary parking plan, including
an operational plan, which addresses construction
employee parking during the construction period,
said plan shall include an enforcement plan and
shall be subject to the review and approval by
the planning director prior to the issuance of
any building permits and shall be enforced during
const;ruction activity.
f) All conditions imposed by the City Commission
shall be incorpo;rated in this Development
Agreement.
g) Company shall reimbu;rse the City its lost
parking revenue from any metered parking spaces
Page 6 of 17
Book26203/Page1385 CFN#20080104490 Page 6 of 22
. \ .
. '.
adjacent to the Property which it occupies or
uses during the construction period,
h) The Company shall donate to a city trust fund
$40,000.00 to be used by the city for traffic
calming or other traffic mitigation programs
within the City of South Miami. This money shall
be donated to the City , prior to the issuance of
its first building permit.
9. Consistency "i th C1 ty of south Miami Comprehenlli va
Plan and Land Development Ragulations. The city has adopted
a Comprehensive Plan and Land Development Regulations in
accordance with Chapter 163, Part II, Florida Statutes. The
city finds that the project is· consistent with the city's
comprehensive plan and the city's land development
regulations. The project, a mixed use residential, office
and retail development, as set forth herein, is consistent
with the "Mixed-Use Commercial/Residential (Four story)"
designation on the future land use map, and the HD-OV
zoning district on the Official Zoning Atlas of the City of
South Miami. Goal 2 of the Future Land Use Element
identifies the defines the home town district which
consists of the "Hometown District Overlay Zone," as
defined in Article VII, sections 20-7.1 tbrough 20-7,52 of
the city's land development regulations.
10. v •• tinq. As long as the development on the
Property is in compliance with this Development Agreement,
and all applicable laws, ordinances, codes and policies in
existence at the time of the execution of the Development
Agreement as well as. other requirements imposed by the City
Commission upon the ratification of the site plan. approval
Page 1 of 17
Book26203!Page1386 CFN#20080 1 04490 Page 7 of 22
. \.
on the Property, the Property shall not be the subject of a
down zoning application by the City and shall not be
subject to any development moratorium, referenda action,
ordinances, poliqies, or procedures enacted by the City
that limits the development contemplated by this Agreement
and depicted in the site plan. Any failure by this
Agreement to address a particular permit, condition, term
or restriction shall not re.lieve the Company of the
necessity of complying with the law governing said
permitting requirements, conditions, terms Dr restriotions.
11. Pemit., Conditions, Texms and batrictiona not
Addre •• ad. The failure of this agreement to address a
particular permit, condition, term or restriction shall not
relieve the Company or the city of the necessity of
complying with the law governing said permitting
requirements, conditions, terms, or restrictions.
12. Duration of Pexmits. The Company acknowledges that
this agreement does not extend the duration of any permits
or approvalS.
13. L." Governing De""lopsaant of the Property. The
ordinances, policies and procedures
Miami concerning development of the
existence as of the execution of
of the City of south
property that are in
this agreement shall
govern the development of the property for the duration of
the term of this agreement No subsequently adopted
ordinances, policies, or procedures shall apply to the
property except in accordance with the provisions of
section 163.3233 (2), Florida Statutes, and Ordinance No.
05-05-1B27,as attached.
Page a Of 17
Book26203/Page1387 CFN#20080104490 Page 8 of 22
. ~ .
14. T.:r:minat:l.on. This agreement may. be terminated by
mutual written consent of the oity and Company, subject to
the terms and conditions herein. Either party may terminate
this Agreement if the oth",r party commits or allows to be
committed any material breach of this Development
Agreement. A "material breaoh" of this Agreement shall
include, but not be limited to, a failure of either party
to perform any material duty or obligation on its part for
any thirty (30) consecutive day period. Neither party may
terminate this Agreement on grounds of material breach of
this Agreement unless it has provided written notice to
the other party of its intention to declare a breach and to
terminate this Agreement (the "Notice to Terminate") and
the breaching party thereafter fails to cure Dr take steps
to substantially cure the breach within siKty (60) days
following the receipt of such Notice to Terminate, with the
exception of monetary breaches which Shall be cured within
thirty (30) after receipt of notice.
15. A •• i;nm.nt. This Development Ag~eement may not be
assigned by the Company el<cept to an affiliated entity,
without the prior written consent of the City. Subject to
the preceding sentence this Development Agreement shall be
binding upon the successors, aSSigns, and representatives
of the parties hereto. An affiliated entity is an entity of
which South Miami Corporation or a majority of its
shareholder", directly or indirectly OwnS at least 51% of
the beneficial interest.
16. Work Fore •. The Company agrees to use its best
efforts to enhance job opportunities for local citizens in
connection with the project. TO that end and in order to
Page 9 of 17
Book26203/Page1388 CFN#20080104490 Page 9 of 22
'0:-'
maximize job opportunities for applicants
the Company shall send notice to
from South Miami,
the Community
Redevelopment Agency Director of the City of South Miami,
or a substitute designee by the City Manager, regarding
employment opportunities related to any (1) construction
work on the Property, (2). temporary or permanent
maintenance work on the Property, or (3) proposals for
leasing of retail space or employment opportunities
associated with retail space located on the Property.
17. JOint Preparation. This agreement has been drafted
with the participation of the city and Company and their
counsel, and shall not be construed against any party on
account of draftsmanship.
18. Binding affect. The burdens of this agreement
shall be binding upon, and the benefits of this agreement
shall inure to, all successors in interest to the parties
of this agreement.
19. Captions and Headinga. Paragraph headings are for
convenience only and shall not be used to construe or
interpret this agreement.
20 . Applicable La"., Ju .... l.d1ction, and Venl18. This
agreement shall be governed by and interpreted, construed,
and enforced in accordance with the internal laws of
Florida without regard to principles of conflicts of law.
This agreement may be enforced as provided in Section
163.3243, Florida Statutes. Venue for any
pertaining to the subject matter hereof
exclusively in Miami-Dade County Florida.
Page 10 of 17
Book26203/Page1389 CFN#20080104490
litigation
shall he
Page 10 of 22
~.' .
21. ~nforcament. In any litigation arising out of this
agreement, the prevailing party shall be entitled to
recover its costs and attorneys fees, Attorney's fees
payable under this paragraph shall not exceed 25% of the
amount of damages awarded to the, prevailing party and no
party shall be entitled to pre-judgment interest. In any
injunctive or other action not seeking damages under this
paragraph, legal fees may be awarded in the discretion of
the court, but shall be reasonable and shall not exceed an
hourly rate of $300.00 per hour.
22. Inap.at:ion, Nothing in this Agreement shall be
construed to waive or limit the City's governmental
authority as a municipal corporation and political
subdivision of the State of Florida. The Company therefore
understands and agrees that any official inspector of the
City of South Miami, or its agents duly authorized, have
the right to enter, inspect and investigate all activities
on the premises to determine whether the property complies
with applicable laws including but not limited to building
and zoning regulations and the conditions herein.
23. Authorization to Withhold Permits and Inapactions.
In the event the Company is obligated to make payments or
improvements under the terms of this Development Agreement
and such payments are not made as required, or such
improvements are not made as required, in add! tion to any
other remedies available, the City of South Miami is hereby
authorized to withhold any further permits on the portion
of the Property failing to comply with this Development
Agreement,
approvals,
and refuse any inspections
with regard. to that portion
Page 11 of 17
Book26203/Page 1390 CFN#20080104490
or grant any
of the Property
Page 11 of 22
','
until such time this Development Agreement is complied
with.
24 .. Rep~.8entation8 of tbe Company, The Company
represents. to the City ae follows:
(a) The execution, delivery and performance of
this Agreement and all other instruments and
agreements executed in connection with this
Agreement have been properly authorized by the
Company and do not require further approval by
Company,
(b) Th1s Agreement has been properly executed,
and constitutes Company's legal, valid and
binding obligations, enforceable against Company
in accordance with its terms.
(e) There are no actions, suits or proceedings
pending or threatened against or affecting
Company before any court or governmental agency
that would in any material way affect Company's
ability to perform this Agreement.
[d) Company shall not act in any way whatsoever,
directly or indirectly, to cause this Agreement
to be amended, modified, canceled, Or terminated,
except pursuant to its express terms, and shall'
take all actions necessary to ensure that this
Agreement shall remain io full force and effect
at all times,
(el Company has the financial capacity to payor
advance to the City all fees aod payments as
required under this Agreement.
Page 12 of 17
Book26203/Page1391 CFN#20080104490 Page 12 of 22
.,
25. Severability. In the event that any of the
covenants, agreements, terms, or provisions contained in
. this agreement shall be invalid, illegal, or unenforceable
in ,my respect, the validity of the remaining covenants,
agreements, terms, or provisions contained herein shall be
in no way affected, prejudiced, or disturbed thereby.
26. Waivers. No failure or delay by Company or the
City to insist upon the strict performance of any covenant,
agreement, term or condition of this Agreement, or to
exercise any right or remedy consequent upon the breach
thereof, shall constitute a waiver of any such breach or
~ny subsequent breach of such covenant, agreement, term or
condition. No covenant, agreement, term, or condition of
this Agreement and no breach thereof shall be waived,
altered or modified except by written instrument. No waiver
of any breach shall affect or alter this Agreement, but
each and every covenant, agreement, term and condition of
this Agreement shall continue in full force and effect with
respect to any other then existing or subsequent breach
thereof.
27. Annual a.port and Review. It shall be the
responsibility of the Company to submit an annual report to
the City sufficient to fulfill the requirements as. stated
in the provisions of Section 163.3235, Florida Statutes,
and Ordinance No. 05-05-2005. This agreement shall be
reviewed annually on the anniversary of the effective date
of this agreement. The Company, or its assign, shall submit
an annual report at least 30 days prior to the annual
review date. This report shall contain a
listing of what obligations have been
Fage 13 of 17
Book26203/Page1392 CFN#20080104490
section-by-section
met and the date
Page 13 of 22
,,---., -,.-.. __ .. _-------_.-"--,-_ ..• _---.. _----
finalized, as good faith compliance with the terms of· the
agreement. The city commission shall review the annual
report at a public meeting. U the City Commission finds,
on· the basis of substantial competent evidence, that there
has been a failure to comply with the terms of the
Development Agreement, the Agreement may be revoked or
modified by the City. The obligation to submit an annual
report shall conclude upon the date on which the agreement
is terminated.
2B. Notices. Any notices or reports required by this
agreement shall be sent to the following:
For the City:
Copy to:
For the Company:
Copy to:
City Manager
City of South Miami
6130 sunset Drive
South Miami, Florida 33143
Planning pirector
Planning and Community
Development Department
City of South Miami
6130 Sunset Orive
South Miami, Florida 33143
South Miami Corporation
Attn: Donald F. Hunter,
Vice President
And Wade R. Wacholz, counsel
5750 Sunset Drive
South Miami, Florida 33143
Wade R. Wacholz, Esq.
Gislason & ·Hunter, LLP.
P.O. Box 5297
Hopkins, Minnesota 55243-2297
w. Tucker Gibbs, Esq.
215 Grand Avenue
Coconut Grove, Florida
Page 14 of 17
33133
Book26203/Page1393 CFN#20080104490 Page 14 of 22
29. Exhibit.. All exhibits attached hereto contain
additional terms of this agreement and are incorporated
herein by reference.
30. Amendment. This agreement may be amended by mutual
written consent of the city and Company so long as the
amendment meets the requirements of the act, applicable
city ordinances and Florida law.
31. Entira agreement. Thh agreement represents the
entire agreement and no prior or present agreements or
representations shall be binding upon either the city or
Company, unless specifically incorporated herein by
reference, whether such prior present agreements have been
made orally or in writing. Each party affirmatively
represents that no promises have been made to that party
that are not contained in this Agreement, and the Exhibits,
and stipulates that no evidence of any promises not
contained in this Agreement, and the Exhibits, shall be
admitted into evidence on its behalf.' This Agreement shall
not be supplemented, amended or modified by any course of
dealing, course of performance or uses of trade and may
only be amended or modified by a written instrument duly
executed by officers of both parties.
32. Third Party Banafic;l.ary. This Agreement is
exclusively for the benefit of the parties hereto and their
Affiliates and it may not be enforced by any party other
than the parties to this Agreement and shall not give rise
to liability to any third party other than the authorized
successors and assigns of the parties hereto.
33. Periods of 'l'ime. Whenever any determination is to
be made or action is to be taken on a date specified in
Page 15 of 17
Book26203/Page1394 CFN#20080104490 Page 15 of 22
------------~--~--.--.-----------
.'
this Agreement, if such date shali fall on," Saturday,
Sunday or legal holiday, then in such event said date shall
be extended to the next day which is not a Saturday, Sunday
or legal holiday.
34. Counterpart.. This Agreement may be executed
(including by facsimile) in one, or more counterparts, and
by the different parties hereto in separate counterparts,
each of which when executed shall be deemed to be an
original but all of which taken together shall constitute
one and the same agreement.
35. Recordation. Within 20 days after the Development
Agreement has been signed by both the Company and the City,
the Applicant shall cause a copy of the Development
Agreement to be recorded at the Applicant's expense in the
registry of deeds in Miami-Dade County.
36. Abandonment of Riqht-of-Way. The City agrees to
abandon the right-of-way adjacent to the property to the
buildable line. The Company shall contemporaneously grant
to the City an easement from ,the right-of-way adjacent to
the property to the buildable line for all futUre needs of
the City. To ensure that the proposed structure does not
interfere with the City's future needs, any permanent
structure extending out over the City's easement shall
provide the City with clearance as provided in the Hometown
Overlay District in the Land Development Code (lO-feet
minimum) .
page 16 of 17
Book26203/Page1395 CFN#20080104490 Page 16 of 22
, ,
City
I?ASSBD AlID DULY Al)Ol?'r1ll) by th~ d~mmission of t~he
of South Miami, Florida, this, day o~ 200 ..
11 t1i ~ .{LPIJ
Pl'int Name I'..'{ NT!·1L \l! 'E Ii-~LH
STATE OF 1i'lQIU);l~ ;r~"'''''''S )
)
COUNTY OF IIUdlI BME eoo", )
The foregoing instrument was acknowledged befol'e
Qc" day of O.:<. ... ...,e.,\& , 2001.1oy \.I. gOq,wIi'LL WIR19
pers,~nown to me or who produced
=--;:c---=::::::::"'=-=:=~==:------as identi fica tion, of the corporation.
My commission expires:
L,,',--!.J
Page 17 of 17
Book26203/Page1396 CFN#20080104490
me this
who is
on behalf
Page 17 of 22
ORDINANCE NO. 05-05-1827
AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY
OF SOUTH MIAMI, FLORIDA ADOPTING A DEVELOPMENT AGREEMENT
PURSUANT TO FLORIDA STATE STATUE 163.3221. FOR A UNImED
DEVELOPMENT PROJECT KNOWN AS "PROJECT SUNSET" WHICH WILL
INCLUDE THREE BUILDINGS UP TO FOUR (4) STORIES IN HEIGHT AND
THE FOLLOWING USES: 108 MULTI-FAMILY RESIDENTIAL UNITS,
RETAIL USES, OFFICE USES, RESTAURANTS, BANK AND PARKING
GARAGES; ALL FOR PROPERTY LOCATED GENERALLY AT 5750 SUNSET
DRIVE AND LEGALLY DESCRIBED AS LOTS 6 THRU !), 40 THRU 45, .53
THRU 66 INCLUSIVE AND TH'E EAST 50 FEET OF LOTS 5'1. AND 52 OF W. A.
LARRINS SUBDMSION ACCORDlNG TO THE PLAT THEREOF
RECORDED IN PLAT BOOK 3 AT PAGE 19!1 OF THE PUBLIC RECORDS OF
MIAMI-DADE COUNTY; PROVIDING FOR SEVERABILITY; PROVIDING
FOR ORDlNANCES IN CONFLICT; AND PROVIDING AN EFFECTIVE DATE
WHEREAS, in 2005 the South Miami Corporation is requesting approval·of a Development
Agreement for a 4.5 acre proposed unified development to b. called "Project Sunset" which will include
a total of 108 dwelling units and 87,212 square feet of commercial space on property located genera1!y
at 5750 Sunset Drive and legally described as Lots 6 thru 9, 40 thru 45, 53 thru 66 inclusive and the east
50 feet of Lots 51 and 52 ofW. A Larkins subdivision according to the plat thereof recorded in plat book
3 at page 198 of the public records of Miami-Dade County; and
</I'-
. WHEREAS, the City Commission at its March 1, 200S meeting adopted a resolution allOwing
two special exCeptiOllB and adopted a special use resolution permitting the location of four restaurants in
Ibe unified development: and
WHEREAS, the Florida Local Government Development Agreement Act, set furth in sections
J 63.3220-163.3243, Florida Statutes, provides for the execution of development agreements to insure that
the law and regulatiollB in effect at tbe time of the execntion of the development agreement shall. govern
the development of the land for the duration of the agreement; and
WHEREAS, the South Miami Corporation has proposed the execution of a development
agreement with the City of South Mimpi pertaining to the mixed use project entitled "Project Sunset"
which agreement would set forth all of the conditions and commitments required by the City resulting
from the approval of the special exception and special use requests; and
WHEREAS, the Planning Board at a meeting on February 22, i005 after a public heariI).g,
adopted a motion by a vote of 4 aye I nay reconnnending approval of the proposed Development
Agreement subject to specific revisions and conditions, which have been included in the draft agreement;
and
WHEREAS, the Mayor and City Commission of tbe City of Soulb Miami desire to accept the
recommendation of the Planning Board.
NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND THE CITY
COMMlSSION OF TEE CITY OF SOUTH MIAMI, FLORIDA:
Section 1 That a Developmeut Agreement, attached as Exhibit "A" as Awended during the
March 15, 2005 public hearing, and dated March 1 5, 2005 between the City
of Soulb Miami, Florida, and the South Miami Corporation pertaining to a 4.5 acre proposed
Book26203/Page1397 CFN#20080104490 Page 18 of 22
,
Ord. No. 05-05-1827 2
unified development to be called "Projeot Sunset" which will include a totsl of 108 dwelling Wlits and
87,212 square reet of commercial space on property located generally at 5750 Sunset Drive and legally
described as Lots 6 thru 9, 40 thru 45,53 thru 66 inclusive and the cast SO feet of Lots 51 and. 52 ofW.
A. Larkins subdivision according to the plat thereof recorded in Plat Book 3 at page 198 of the public
records of Miami-Dade County is approved. .
Section 2 If any section, clause, sentence, or phrase of this ordinance is for any reason held invalid or
unconstitutional by • court of competent jurisdiction, this holding shall not affect the validity ofthe
remaining portions of this ordinance ..
. .
Section 3 All ordinances or pmts of ordinanoes in conflict with the provisions of this ordinance are
hereby repealed. .
Section 4 This ordinance shall be effective inanediately after the adoption hereof.
PASSEDANDADOPTBDthis . IS.::t4 dayof !vt~ ,2005
A'ITEST: APPROVED:
1" Reading-3/1/05
2"" ading-3/15/05
COMMISSION VOTE: 4-1
Mayor Russell: Yea
Vice Mayor Palmer: Yea
Commissioner Wiscombe: Yea
Commissioner Birts-Cooper: Yea
CITYi ATTORNEY Commissioner Sherar Nay
achment: Exhibit"A" Development Agreement
E:\CotDDl It.msI200S\3-I-OSIDeve!opmeot Agreement Bank Ord.doc
Book26203/Page1398 CFN#20080104490 Page 19 of 22
---.-~.,~----.~--~-~~.----~"'--"'-' . -_ .. _-_._>---._ .. _------
· . (
O'RDINANCENO. 18-05-1840
AN ORDINANCE OF THE l\1AYO'R AND CITY CO'MMISSION O'F THE CITY O'F SOUTH
MIAMI. FLORIDA AMENDING THE DEVELO'PMENT AGREEMENT ADO'PTED AS PART
O'F O'RDINANCE NO'. 05-05-1827 WHICH APPROVED THE DEVELOPMENT AGREEMENT
FOR A UNIFIED DEVELOPMENT PROJECT KNO'WN AS "PRO'JECT SUNSET" LOCATED
GENERALLY AT 5750 SUNSET DRIV:E AND LEGALLY DESCRIBED AS LOTS 6 THRU 9.40
THRU 45, 53 THRU 66 INCLUSIVE AND THE EAST 50 FEET O'F LOTS 51 AND 52 O'F W. A.
LARKINS SUBDIVISION ACCORDING TO' THE PLAT THEREO'F RECO'RDED IN PLAT
BO'O'K 3 AT PAGE 198 O'F THE PUBLIC RECO'RDS O'F MIAMI·DADE CQUNTY; THE
PURPOSE O'F THE AMENDMENT IS TO' AUTHO'RIZE THE ADMINISTRATIO'N TO'
PROVIDE A SPECIFIC AMOUNT OF PARK AND O'PEN SPACE CO'NCURRENCY
PAYMENT TO THE CITY, AMENDING THE DATE FO'R PAYMENT, AND ADJUSTING THE
PHASING OF THE DEVELOPMENT; PRO'VIDING FO'R SEVERABILITY; PRO'VIDING FOR
O'RDINANCES IN CONFLICT; AND PRO'VIDING AN EFFECTIVE DATE
WHEREAS" the City Commission at its March 1, 2005 special meeting approved special
exceptions to permit "Project Suns.f', a unified mixed use development consisting of residential, office
and retail uses generally located at 5750 Sunset Drive; and
WHEREAS, the City Commission at its March 15, 2005 meeting adopted Ordinance No. 05·
05·1827 approving a Development Agreement between the City and the developer, the South Miami
Corporation for Project Sunset; and .
WHEREAS, Section 4 of the Development Agreement entitled "Use of Property" sets forth a
phasing schedule for the development of the project; and
WHEREAS, the Administration has now negotiated an amended phasing schedule which should
reduce the impact of the development program on traffic and parking in lb. area; and .
WHEREAS, Section 5 (b) of the Development Agreement entitled "Public Facilities Serving the
Project" provides a formula for determining the amount and timing of a park and open space concurrency
payment to be made by the developeftc the City; and
WHEREAS, the Administration has now negotiated a specific amount and revised timing of the
park and open space concurrency payment to be made by the developer to the City; and
WHEREAS, the Planning Board at a special meeting its May 10,2005 meeting after a public
hearing, adopted a motion by a vote of 5 aye 0 nay recommending approval of the proposed amendment
to the Development Agreement.
NOW, THEREFORE, BE IT ORDAlNED BY THE MAYOR AND THE CITY
COMMISSION OF THE ClTY O'F SOUTH MIAMI, ELO'RIDA: .
Section 1 .That Section 4 entitled "Use of PropertY' of the Development Agreement between the City
and the South Miami Corporation for Project Sunset adopted by Ordinance No, 05-05·1827 at the March
15,2005 City Commission meetiog, i. hereby amended to read:
4. "Use of Property. The property described in Exhibit "A" is to be utilized for the project
described in Exhibit "C": a mixed use residential. office and retail project with a residential use
Book26203/Page1399 CFN#2008010449Q Page 20 of22
drd. 'No. 18-05-1840
I
2
2
3 not to exceed 108 dwelling units on approximately 4.5 +/. acres. The project will include
4 "chamfered" comers where it abuts roadway intm:SectiOIlS pursuant to Exhibit "C". The occupied
5 space of the project will not exceed four stories or fifty six (56) feet in height urness otherwise
6 permitted by the South Miami comprehensive plan or its land development regulations. The total of
7 occupied space of the project nhall not exceed four stories. Non-occupied space shall not exceed a
8 maximum height of fifty six feet. The project shall be built in Wi<> pbases as follows:
9 • Phase I shall consist of Blocks "A" and llG'l "B" described in Exhibit "C".
1 0 • Phase II shall consist of Block !\Wl "e" described in Exhibit "C".
11 • The Company may eject to implement the development plan in one
12 pbase
13 • The Company may elect to utiliZe Block "CO as a temporary bank
14 facility with drive-through lanes (not to exceed four lanes) which
15 facility sball be removed upon the issuance of the Certificate of
16 Occupancy for the Bank facility on Block "A".
17
18 The overall development of the property shall be conducted in accordance with the
19 approved site plan on file at the City, (attached and incorporated as Exhibit "C")
20 including elevations, architectural features and estimated commercial square footage
21 pursuanttoSection20.3.-7,oftheLDC." .
22
23 Section 2 .That Section S(b) entitled "Public Facilities Serving the Project" of the Development
24 Agreement between the City and the South Miami Corporation for Project Sunset adopted by Ordinance
25 No. 05-05-1827 at the Marcb 15,2005 City Commission meeting, is bereby amended to read:
26
27 5. "l'nblic Facilities Serving the Project
28
29 ******
30 b) Parks and Recreation
31 Based on the projected residential population on the Property, Company agrees te j!B;' fe, Sf
32 flre"liss .8 aeP8e eflms 8:8Biil,wele ~8 tits Qfiy far a flliaKa p8!"k. Ifi the eltel'flliw/B; t:ks Qam,uy
33 ffi;S:Y pre :'iss a "Slieastute l'El'!1lllefM" has8a sa tee 8!fc$1t&g@ .IGB ,!iem mffS8siel~al ]3!'s,8ft;r if!:
34 ile 8i~ e'78f tlt8 hrat yBfH!. The G8fD!98ft5'8 lJIi5'ftlSM MaR be ,,1&888 kt Bo epee-illl fiHui fer 8f!IWtMftg
3S eft 8a,ital impreveeumts te pM!:M:e feerS_eft me:HMi8B:Hi @til gh~; 'Fhs Pa)tmBftt sbe 'l Be Hlaas
36 in 8ftS lu~ SHHt 8M €!If GeNre II GeftifiBllte 8f Use !mEl .Q8eapWlBY is ~fui fer ,the: -Mal
37 rBeiElelletial unit Bile Ifts pl'@f'~ to donate $232,000 in one lump slim as its responsibility f9r
38 meeting park and recreation concurrency. Payment .hall be made on or before receipt of
39 the f'U'st building permit and shall include any interest or carrying cost incurred by the
40 City until receipt of the payment." .
41
42
43 Section 3 Tf any section, clause, sentence, or phrase of this ordinance is for any reason held invalid or
44 unconstitutional by a court of competent jurisdiction, this holding shall not affect the validity of the
45 remaining portions oftbis ordinance.
46
47 Section 4 All ordinances or parts of ordinances in conflict with the provisions of this ordinance are
48 bereby repealed.
49
Book26203/Page1400 CFN#20080104490 Page 21 of 22
, ~ Ord. No. 18-05-1640
of
'"'
Section 5 'This ordinance shall be effective immediately after the adoption hereof.
PASSED AND ADOPTED this 11-r.1r.
ATTEST:
(fr)~Gt~
CITY CLERK ~
1" Reading-6/7/05
2Dd Reading-6/14/05
day of ~, 2005
APPROVED:
COMMISSION vorn:
Mayor Russell:
Vice Mayor Palmer:
Commissioner Wiscombe:
3
Commissioner Bms-Cooper:
4-0
Yea
absent
Yea
Yea
Yea Commissioner Sherer
New wording underlined; wording to be removed indicated by strikethrough
\\MCORUFF\PLANNING\Conun Ittms\1005\6~ 7-OS\DevclopmeDt Agreement Project SWlSet Ord..doc
Book26203/Page 140 1 CFN#20080104490 Page 22 of 22
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"
• . , EXHIBIT B 1IIIIIUlitI UUlI1Ui UllflUlIlIlllllIlIII
AMENDED DEVELOPMENT AGREEMENT
BEWEEN
THE CITY OF SOUTH MIAl\1l, FLORIDA
.AIm SQUTH MIAMJ COJU'ORATION
\
THIS.AMENDED DEVELOPMENT AGREEMENT (lfAgreemem") is madQ as··· ..... ;.,
/3-z1 day ~f i'd. .1013 !!y and between the CITY OF 80UTHMIAMl, 'FLORiDA a
ntunicipal corporation ("City,,) and 'SOUTH MiAMI CORPORATlON{"COmpany") or its assignee.
RE-<CITALS
WHEREAS. the City commission of.the ClfyofSouth M1~mi adopted Ordinance No, OS-[}S-
[1Il7 ~attaohed as Bl:hibit "B")whicb implemented the Florll\a Local GovorJ)ment Development
AgreementAct("~ Act") andpennits the oonsloeration and the ad~pti"l1 of this agr~ement; and
WHEREAS, th~ Company owns approximately 4.5+/· acres, zoned HD-OV, de~cribed ,in
Exhibit "A," (the "Properiy"); and
WHEREAS, the Company desires to construct a mixed use development enoompa$srn.g tolaU.
office and residential compoIr.>lIts ('!he "Project') described in site pl8Il on file with the City in tlle
HornetownDistrict OVl>rlayliJne wifuin the City of South Miami,
WltEREAS, the City has ~on""rns r.~J;,\l'ding th~ OI'illiaal DweJ()prnent Agreement .that was
dated Mal'ch 15. ZOOS, fully executed ()ll April 6, 2005 but which was never recorded; and
WHltRlliAS, the ·City and the Company amended the March 15, 2005 De"e!opment
Agre~ment Il.l1d this m>lSed Development Asreem~nt WAI Bawd JUrnl ;{4, :t-()OS and whlch was
eventually recorded as required by statute; however, the "amended" development ",greoment was
reoord", as tit" ol'iginal development agreement and it was not tided llS an !lm~nl'1~d .deverepmont
agreem~nti and
WHEREAS, the City has concern. regarding the signing and recordillg of the JUlle 14, 2{)OS
Developmen.t Agreement; and
WHEREAS, Ihe Company and the City desire 10 settle tlle concerns of the Cily by en~ring
into thIs Amended Dev610pment Agreement; ana.
" " , ,
.
WHEREAS, th(! Florida Local OQv~rnment l:)evelopment Aireemen1 kGt, eeotlolli tE3 .~220.
16l.3243, Plorlda Statutes, (tM • Aot"). In effect O~ the ~a!e a1tbe City pas$ed and adopted 1\ r~lolution
&greeing Qn the terms ~f' the origilllit Development Agreement, provided for the exeoution of
developmentRgt:eements for It t«m not!Q exoeed ten (lD) years to insure that the law in effec'! at the
time of the execution of the development ,agreement shall govern the development of the lan4 for the
dur~ti0n of the agreement.
NOW, THEREFORE. in consideration of th~ above recitals and the fonOVo'ing ;()ovl>nants,
temIS and condition& the reoeipt and sufficiellcy of whiph are expressly acknOWledged, the City and
Complll1Y oovenant and agree lIS fullows:
1. Ino~rporat!~n or Reoitals. The no!t.11 set forth above are tru~ and ¢Ql'f~Qt f.nd
are inOorporaled herein by Ihls reference.
2. Pro,perty. The Company owns the prop~r!)' &s described in Exhibit "A". This
property is deemed to be one unified parcel and 1s subject to the unity of title pursuant to the
requir~mcllts of seotiotls 2{)-7.3Q. and 20-.5.14 of the City Land Deve10pment Code (the "LDC")
atlllohed hereto a.s Exhibit "D"_
3. Effective Date; Duration of Agree!l1~ut. This AQOOnlenl shall be effective as
of lune 14, Z005 (the "~ffectiva Date"), the date that tho City passel! and adopted a resoMion agreeing
to the terms and oonditlorul of the fir,t Amended Development Asre<'l!lMt. This Agreement. as
l'UJ'fomtly ameucWd, shall tenninate fen years -from the EffeQtiw Date of this Agl'eement, un:!ess
otherwise e~tended or terminated as provided for henin or in the act-The maximum perm of this
lIgreement &hall be teli (10) years fioom the E££e~iiv. D~i. unIo.u extended by mutua! con~lnl of all
legal and eq~jtable 'Owner.1 of the Property ~nd' the ~i1y upon approval at a publio h~r,lng. M .p~oyided
jnth~Aot.
4.Uso of I:'ropcrly. The proporty described in Exhibit "A' [s to be ,u1iliud for the
project described in the site plan on file with the City: a mixed use residential, office and l'otaill'rcject
wilh a residential usc not to exceed lOB dwelling units on 2.pproximately 4..5 plus or minus aCl,",,~. The
project will inclUde "ohamfered" comers where it abuts roadWAY !nWsootKms pUl'SUallt to t!l~ site plan
on file with tlto City. The occupied space of the project will not:.)il)~ four stories or fifty six (56) feet
ill height unless otherwise pennitted by-the South Miami comprehensive plan 01' it~ l~nd development
reguJatl()Ps. The total of occupied space of the. project '911aU nat ~'l«JOOd four .stariM. Non,occupied
spnce shall not ,exceed a maximum height of filly six feet The project shall be built in two ~hases as
folloWJi
• Phas~ I sh.1I oons!~t ofBloo..~~ "A" am! '''13'' d(lScriQed inExlllolfl<C",.
MlAMl32931113,376813/29325 2
!
~,
•
" "
. ,.
• Phan II shan oonslstof!llook "C" ~eB0r!beQ In Exhibit ·'C" .
. , The Company may eleot to implement the development plan in "no phase,
.• The Company may eleot to utilize Block "C" lIS a lemporary bank facility with
drive-through lanes (not to exceed futu' lanes) which facility shall be removed upon the Issuanoe of the
Certllicate.ofOocupancy for dJoBank racUityon Block "A",
The .overall development of1be property shall be oonducted in accordance with the approved
site plan on file at the City, including elevations, architectural features and estImated commercial
squ2l'e footage pUl11Uant to Section 20.3-" of.the LDe.
S. Public Faeiliiles ServiJIll the Project. In .Qro<::r to en11ance Jmolic facillti.s In
dIe City of South MliIml, the Company ~gt'eet to provid~ (lie se!'l'ioes listed below In oompllf.l1ce with
Section 20·4, 1 Qfthe LDC, including;
(a) lWadwBf!
An opel'ational traffic study was· QQnduoted by the "ill' !tIld tlle Company agrees to the
recommendations ofoity staff as ~eeforth in their staffrep0l1 whicllreoommendatious are incorporated
herein by reference.
(b) Pat'ka and :Recreation
Based 011 the projectW residential population on the Propmy. Company agrees 1:0 donate
$232,000 in one-lump sum as its responsibility for meetlng p~rk and =eat.ioo· COllC\l11'ellcy. Payment
.. hall b. made on or before reoelpt of the first building permit and shall inolude any interest or carrying
\lOst incurred b)' the City u!till r~e!pt of the pa)'lllent,
(e) SI\I!!tI!ry Sowers
Water and Sewer services that comply with all requirements of Miaml-Dade CounIY for a~y
bulldlng prior to itsulncc ofa finat Certifloate of Use alld OCCUprulCY,
(d) SolfdWasfe
Sclid Waste s~rv;cea that "Gmp'ly with all l'equirements "r Miami-Dade Cbunty for any
building prior to issu(l!loe ofa final CertJfioate oiU.e and Occupancy_
(0) Schools.
The Compao)' commits to pay upon the issu~noe of the initW certificate ·01' occupancy nul'
required Miami-Dade County SohO(lI Sao1'd school impact fees.
6, ·Collctrrrency. The City of South M1i'.mi has determined that the Compan)"s
perfonnanoe under the Agreement satisfies the OOncllI'l'enc), l'equil'Oll1ents, as delineated In Seeflon 20-
4, I, City 'Code, 13)' eJteoution of Ihis Agreement, the City aoknowledges that th .. app!ioat1ol1 for slte
MIAM':I3293153.376813129325 3
.' .
"
pltn approval meeti all oonQUlTfnoy rc.gul&tioos enumerated In Section 204,1 of 111, City Cede, .&nd
th&t the site plan eppl!oatlon end this Agreement m·oonliatel<t with the City Comprel1ensi~6 prall and
Land Development Regu [atIOllt.
7. Perot!ts, The p:mn\ts preliminarily identified lUI necessur)I fur .development of
the project ate described as fe>Uows:
(.a) Special ElI'ception to p"nnit four dr1ve-through teller l.aneswithin the site,
(b) Special Ex1X'ptiou tcprl)vide 72.2% fl· lot QOverage.
(c) Special Use permit to penni! up to four restaur!\1)\s with 11 maximum to.t!ll cf
13,S20+f..squm "ie=1 willa parking to be supplied from any e)(~eSi parking wltllin the site, Retail nnd
restlturant pal'lclng shall be marked and signed,
8, Development Conditions, The fonowIng conditions sh~il apply to th=
developrmmt of the project:
(-a) The Campany Ilhall meot all apl'licabie building codes, lalld development
~gulations, ordin!ll)ces and Gther laws.
(b) 'The 'Company sIm1I adhete to the requir6ments of all permits fur the project
(0) The Company sIm1I develop the project [1\ conformance with the parameters set forth
in this agreement.
Cd) All development idlall be ill accord with the site plan submitted with the special
exception and spe~ial Use ~pplil'lltions, said siwl'lan On file with the City.
(~) . The Com?/U\)' shall provide the DerarttnOllt of Pillin!ng; with a t\llnporal')' par.kill$
plan, illQluding an opora.tiDnal Flan, whloh nddresee! oonstruotion employee parkini' cludnll the
ronstruction pen'iod, said plan shall inc:lucle eon enforeement plan and shall be subJeot to the review and
approvlll by the planning direct<>r prjD! to the issuance of any building pel'lnits !lilt! sna:U be enf~rGe~
during oonstruction nctivity.
(f) All >londitiolls [mposed by the City Commission shall be inC0.1'pot'ated in this
Devel0'Pment Agl'eemeot
(g) Company ~halll<limbllt .. e tbe City its iQzt parking .revenue from. ,any metel'ed parking
spaces adjacent to the Propertywhicb it o<)cupies Ol' uses ~uring the QOOStruction period.
(h) 'l1te Company shall donate to a Ditt trust !lJnd $4(l;Q.OI}.OQ to 'b~ used bY. the dty for
traffic olllming or oth.r traffic mitigation programs within the City of South MiamI. This money' Bb.lI
be donated to tile City, prior !a the issuilIIce of i.t. Ill'I! buUding'permit.
MIAMI 3293183.3 75813/2932; 4
.'
'.
Consistency with City of South Mliml Cllmpreheuslve· Plan and Lana
Devel&pment Re.:u!atlons. The city hat ad~pted a Compn>hensive Plan llodLand Develo?me!!l
R:egulatlons in acco;danoe with Chapter 163, PArt II, Florida Statutes. T/JI: city flllds thatthe projeot is
consistent \'lith the city"s cDrnprebensiy~ plalll1Jld the city's bmd devJlIo[l!Dent l'ej;ulations, The project.
amixed use resi.dential, office and retail developm.n~ as ~<;t forth ~ is coosistent with ilie
'Mixed"U$e Comm.r~iallRasld~ CFour Story)" de'ignllJ;;on on the futllro land UBe map, ana the
HO-OV zc>niug distriet on tile Official Zoning Atlas of the City of South Miami. Goal 2 ofth@ Future
Land Use Element ident!fres Ihe home tewn district whioh oon~ists of the "Hometown District Overlay
Zone,' as definec:l in Am!}I. VII, eectiGllllo20·i.l through 20-7.52 ",r the city's land deveh'pment
wgulAt!eM,
10. Vettll!t. As long as tho de'lolopm~nt on tho Property Is in ~Olt1\lU~noe with thi~
Development Agreement, and all appliqabl~ laws, ordinano.et, ood~s and poli<:,i~i In exlshnoe ·o~ 'Jtlfie
14, 2005 as well as oUler requirements imposed b~ the City Commission upon the ratlfloation of the
site plllD approval on th= l?rr>perty, the Property &hall not be ·the ~ubjeet of a down ZOn111g applicnti"n
by ~ City and &hall not be subject to 'any development moratorium, referenda actiol'. ·ordin!Uloesr
polioies,. 01' proC\\dul't;s euru:fed liy the City that limits the d~pm.ont oontemplated :by this
Agreement and depic!ed in the sile plan. Any falil1!e by this Agreement!o address a partioular pel'll:11i:,
condition, term 01' I'estrlctlon sba1I. not.reHeve the Company of the n_tty of complying with il1. law
r;overning said permitting re({Wrements, conditIons, lenns cnestrictksns.
11. Permf~ Conditions, Terms and Reltlicti(l\lS Jiot ;1.ddrmed. Tbe 'faihlr~ of
Ibis 'gF~emeIlt ·to ~tldress a partiClllar permit, condition, term or i-estriotion sbaH .not relIeve the
Company or the olty of the neoesslty of oomplyJng with the law governing salli permhting
requirements, oonditionB. tl;rms, or restriotions.
n. Duratinll (If Permits. The Company acknowledges that.this agreement do~s not
erJend the duration of allY permits or approvals.
13. Law G<>verlling De1'eloplttent of the Property. The ordinances, policies and
procedures of the City of SoufuMiami ooncerJililg development ()ftba property rnat are in e"'.renee .s
-of the Effeotive Date of this agreement shall govern the development ef!he property for the duration
ofth. term of tllls agr.eement No slrbsequently adopted ordillances, polrcies, or procedures shaH apply
to the property except in ao¢Qrdaaee with'the provisions ofse~tion 1103.3233 (:4), Florida Statutes, and
Ordillill1ce No, 05·05·1827, as Irtlacbed.
14. Termination. This agreement may b. terminated by mutual written cons.nt of
!he ~ity and Company. ·subJeot to the terms l..'1a oonditions bQroin. Either pMty .may termjnate this
MIAMI 1293183.3 76813129325· 5
I,
,
I'
,.
Agreement If tlt$ other part)' oommits or .allowl to· be Domrnittecl any m~terlal bre,aoh Cif thll
Agreement, A "matorJal br~Mh" of this Agreement shalt include. but not be limited to" a fallur~ 'oJ
eltber pa.rty to perform any Irulterlal duty or obligation 011 its pill'! ror any thirty (30) CGn5eOU~ve day
period. Neilher party 1M)' t~rminate this Agreement on grounds of 1lIllIcria! breach of this Agr~emen!
QIIless It has proyi~ written Ilotico to the other party of its intention to cleclare a breach and to
terminate this Agreement (tll'~ "Notice to Terminate"} and the breaching party th~reafter fails to cur" .or
lab steps to sui>s'tantially oure the breach within sildy (60) days fullowing!he receipt of such Notioe t6
Terminate, with the exception ofmonolaty breaches whiGh shall be cured within Ibirty {30) days after
rereipt of notice.
+0. AulgnmOl1t. This Agt:e~nent may not be assiined ~)' the Compl.llY eKeept to an
aftili:.~d entity. without ilia prior written consent of the City. Subject to the preoel!!1ns nnte.'10e this
Agreement shall 'be binding upon the suo¢essol'8, acsigns, and tepJ"eSen(atives of ths plll'lie! .hereto, An
aftlllated entity is an entity of whioh South Miami Corporation or a majority ·of it& Bhareholders,
directly ·or indirectly owns at least 5l% oHhe beneficiBllnterest.
16,. Work Force. The Company agrees to use its. best e:fi\brts to enharu>e job
opportunities for 10001 citizens in CQlIlleotion with the projeot. To that and and in ot'der to maximize job
oppoJtunities for applicants from South Miami, the Company shall send notice to the Community
R~d.velopml)fit Ag~ncy Dire:tor of the City of South Miami, or II snbsiliute designee by tlle City
MalJl\ger, l'eglll'ding emplol!rrlent opportunities related to any (1) oonstrnctic>n work on the Property, .(2)
temporary or p~rmancnt maiolenance work on the Prop.tty, or (3) proposals for leasing of retail space
or employment 0pp0r!\lnltles associated wlt!t;retail spaoe loca~ed on the PropeJtr.
17. Jo!nt Preparation. This Agr~ement hili been draft~ with the pW~.!~4tI0!l of
Ibe city and Cornpany and their OOUlIS<ll, and shaU not be 'construed against any Plll't>' en a~Gount 'of
draftsmanshIp.
18. B'indlng Meet. The burdens of this Agroom~nt shall be bindlng upon, a.nd 'ti)e
Dl)Ilefits oflhi. ag",~ent shall inure IQ, all succ~s.ors ih intel'e,l to th~ parties oflhls agreement.
19. Capti .. ns.and Headll;gB. Paragraph headings are for convenience on-ly and shal!
not be used to construe or illte!pret this Agreement,
20. . Applicable Laws, Julisdlctlon, and Venue, This Agreement -shall be g0vBrned
by and Inlerpretea. cODslrUed, and enforced in acc01'danc~ with the interllllllaws of Florida without
regard to prInciples of cotlflic($ of Jaw. This agreement mey b" enforced as provided in Section
163.3243, Florld~ StaM~, Venue for an)' Iltlgat!on per!ainln~ to the su1:>joct matter hereof 'shall be
MIAMI 3293183 ,3 76B 13/29325 6
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ex:clusively In Miami-Dado County Florida.
21. EnfofC$llent In any litigation arising cut of this a~ent, the ·prevailini party
shall be entItled to r.cever its C¢SlS and attorneys f.es. Allom.y', fees payable under this paragraph
sbal1ll¢t exoeed 25% of the amount of damages .awarded to the prevailing pmty and no party shall be
entitled to pm-judgment interest. In any .injunctiv~ or otb~r aotIon DOt 500ldng damages under this
p!U'agraph, regal fees may be awarded in the dlsQretion ofth. oourt, but shall be reasonable ano shall
not exceed an IIOUIly rate of $300.00 per hour.
21. Inspection. Nothiag in this Agreement ,hall be construed to waive or limIt the
C'1Iy's governmental authority as a municipal cQrpGrati~1l ~ntl politlCld subdlv.isiQIl of the State of
Florida. Tho Colnpany Ih.~reftlle unders1ands find t.g):oe; Illat Ally cfficial iuspe~tor oflbo Olt» ofSo~th
Miami, or Its agEonta dill}' ~uthorized, have tbe rIght to ol'Lter, In&pect and investlge.te all act!vlt!es on the
premises to detel'tllino whether the Property ¢ompl!ol' with 'a.ppltotlble laws in~luding 'bUI not Jimite:clto
building and zonillg rcgul.tltms and !'he·conditions hereill,
l3. Autnorl1JLtiQo to Wlthhold Permits ano! Iw:pectionB. In the event Iho
Company is obligatecl tD \1\akepaynumts or :improvements under the aorms ofthia Agre .• ment fUld such
payments RfO not macle as required, Of'SUcn llnprov.mentB are not m...w a8 required, in addition 1:0 allY
other remedies available, tbe Oily of South Miami is her.eby autb.dzed 10 "ith!)dld any furtber permits
on tlle portion of the Property fldling 10 compiy with this DevelQplnen\: Agreelnent, and l'efuae 'any
inspeotions 01' grant ·any approvals, with regard to that portiQn of the PropllI'ly until such time this
Dovelopment Ag~ement Is complied with.
24. RepreBetilations or ille Company. The Company rep~senta t~ the City as
follows:
(a) The ~~ution, delivery ana .perfonl\Knc~ oftllis Agreement end all other Instruments
and agreements e)teCuted itt connection with this Agr.eement ·have be~n properly authol~~clby the
Company and clo.not l'equil'!.' further o,»proval by-Company.
(b) This Agreement has ·been properly executed, and .constl!utes Comp~ny's legal, '1~1icl
and binding nbIigatiooB, emoIC" .... ble against Company in aCcOrd an"" with it« tenus,
Cel Thereal'~ no actions, suits or proceedinga ponding or threatened agmns! 01' affecting
Company befol'e any court or govemmentltl ~genc)' that would in MY material way affect Company's
.bility to perform this Agreement
(d) Company.shall no! ·net in MI1 wr!)' whatsoe~er. dlrootly or .indirectly, to cause this
Agreement to be amended, modified, canceled, or termlnr-ted, except pursuant to [ts express ~rms, and
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shall tako ~lI1>.Qt!Ol1B n.oess~1J' 10 ensure Chat fh!s A~em~nt shall remain in full f~roe ancl effect &1 all
times,
(e) Company has. the financial capacity to pal' or advance '\l;> the City all fees and
payments as required uruIer th~ Agreement,
25. Severllblli~ In the event tllat any of the oovooents, agreements, terms, or
provisions contained in this agreement Bhall be invalid, illegal, or unenforceable in ,any res.pllOt, the
YlIlidity of the remaining covenlllllB, agreements, tenns, Dr provisions QOntained herein shall be in 110
way iffec!ed, prej1ldiced, Dr distur&;d thereby,
26, W lIivers. No i1tiIure 01' delay by Company tlr the City to insist upon the strict
performance of any oovenant, agreemen~ term or oondition. ofthi~ Agreement, or 10 e!:eroise any right
tlr remedy OOl'lSl:\quent upon the breach theroof, shr.ll IIOnsiitu!e a waiver of Any Juoh brea.oh 'or an)'
subsequent brea.oh of snob ~ov~nt, Bgreenten~ !enn 'or oOljdll!~1\. No oovenant, agr~emQni, wlm, or
condrnon of t!!is Agreement ~d no breaoh thereof shall be walved, altered er m.odtfled except by
written instrument. No waiver of any breach shall aff~ct or alter tltis A,greemeut, but each. and every
covenant, agreement, wrm .and .. rulilian of this Agreement 'shall continue in full force and effect with
respect Ie any other then existing or subsequent breaob thereof.
ri. Annual Report and Review, It shall be the responsibility of the Company to
submit au annual report to the C"1ty r;ufficient to fulfill the requirements.as etuted in the provisions Df
Section ),63.3235, Florida St!\tute><,lttId Ordinance No, 05·05·2005. This alP"crne!lt~hal1 be reviewed
anrLuallyon the anniverSliry oithe Effective Date ofth!. Af!I";lement. The ComplUl)" '01' its assign, shall
Sllbm!i~n annual r~port at least:;O days pri~r to the"annual review date following the firet arulue.i rep~rt
submi~d in 20121'1'hloh sllnn be filed 30 days following j,i~ ~xe¢Utlon "fthis .A..!nended Development
Agreement, if not ·already .~ubmitted. All annual reports ghall oCllltain a seotlot\-by.sectlon llstJng of
what obligations have b~en met and the date finalized, as good faith oompliance with the terms of the
agreement, The city commission shall review the annoal report at a public meeting., If the City
Commission finds; Dn the bJlSis of substantial -eompetent evidence, that there has been a failure to
rompl)' with tbe tenl1s of the Agreement, the Agre.emellt 1M)' b. revoked or mDdified 'by. the Cit)'. The
obligation to submit an annual report shall conclude upon the date on which the e,gre.oment .ts
terminated,
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following:
Nofleer. Any notices or re~orts required by ibis Agreement shall be Ifnt:!o th~
For the Cit)':
Copy to:
Fur the Oompauy:
COPT tol
City Manager
City of -South Miaml-613 0 Sunset Drive
South Miam~ Florida 33143
Planlling Director
P.lannifig and Zonlng Decpartment
City of South Mlami
6130' Suns.t Dnw
South Mlaml. Florida 33143
South Mlnmf Corporation
Attn: Bruce W. MacArthur,
Cl\ainnan of the Soard
'5'75'0 SllnsetDrlYB
SDuth Miami, Florida 33 [43
Aud
N.dine Heidticlt
ChiefFciIlaucW Qffleer
Wirtz CoI:PomtiOll
680 N. Laka Slime Drlvo:>
Suite 1900
Chicago, llllnois 606J 1
Jerry B, Proctor, Esq.
:EliWn Bumberg Baf)na Prioo 8< AKelrod LLP
1450 13flck~1l Ave., Suite 2300
Miami, Florida 33131·3456
29. Exhibits. All elthlbits attached hereto contain additiomal terms of this Agree1l1ent
and ~ incorporated herein by ref<>ren.oo •
. 30, Amendment. This Agreement may be amended by mutual V>'ritron consent of tll~'
city and Comp;>ny so long as the amendment meets the .r.equirements <)f the .ct, applicable c-il}'
ordinances aod FlorIda la.w.
31. Entit'8 agreement, TItis Agreement repres~nbl fue·entit'e agreement aod 110 prior
or presenl agreemcIllS or representations shall be bi11ding upon either tho:> city or COII\Pru\y, unless
$paolflcally 1n~orporated h~ill by re&rellce, whether SUOll priot present ggreements hliv.e been made
or~lly Dr in writini. Baoh plU't)' affirmntlvGly represents th~t no promi$~' hay. been mi.a. 'to t11~! party
MIAMI 3293183.3 76813129325 9
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ilia! fol't not oontalned in ihis Agroo;eot, ,an~ the BlclItbits, aIld stipulates, that no evldenoe Gt any
promises not QOlltitn~a III tltl! Agreement, F.I\d the Exhlbits, ~hal\ be admitw.! inio ev!deuoe 011 i~
behalf, This Agreement SMU net be suPFlemented, M\ended ~r tru.>di£ied by any oourse of dealing.
course of performance or usos,,{1radellll.d mal' only be amended or~od[fjed hya wl'itten instrument
duly executed 'by officers of bolli parties.
32. Third party Beneficiary. This Agreement is exolusively for the benefit ,of the
parties hereto and their Affili!dl>s end it may not be ellforoed by eny patty ollier thau the parties to this
Agreement and shall not give rise to liabilfty to any third party oth.er than the authorized successors and
IlSsfgns of the parties heret~,
33. Porloas lie TIRle. Whenever ally determination is W be made 01' action is to be
taken on a date speotfled in this A~ment, If such date shall taU on a Saturday, 'Su.nQilj> Qr legal
holiday, 'tben In Buch event said date shall be ex.tende<:l to the next day whiob is Mt'l $atur!1av, Sunday
or lest! hoUd~)'.
34. CouuferpaJ1$. This Agreement may be executed (luc1udinll by facsimile~ in one
or more counterparts, and by the different parties hereto in i~parate COllnterperts, each of which when
executed shalt be deemed to be an original 'but all of which taken toge!her shall oonstitute one and ilia
same agreement.
35. Recordation. Withitl 20 days after the Amended Developmellt Agreement hllll
been signed by both the ComPIlll)' and the City. the -Gity shall caase II copy of the Amend""
Development Agl'eemtmt to b. rooorded .t the City's expense in the wgislry of,de~ds in Miami-Paue
Co.unty.
36. Ab~ndonment ot RIgllt.of.Wa)'. The City agrees to ~'bl>ndpo t~ dsht-of.way
adjacent 10 the prD,p&l't)i to the butldable line. The Compa!\~ shail cont~mporaneoU5'l)' &t .. nl fuJ the City
an easement from the rlght-of.way adja~ent 'to th~ PIQPerty to the buiklable line for aU future needs Ill'
the City, To en~urs that the proposed structure does not Interfere witb Ihe Cilis futwe !leeds, any
pel'mllllon! stl'ucture extending out ovel' the City's easement '.b.al! p",vido the City wiili clem-nl)e" as
provided 'in the Hometown Overlay District ·It, tbe Land Development Code (IO-feot minimum).
PASSED AND D-ULY ADOPTED by the Cfiy CommissionQf Sooth Miami, Florida,
this 4th clay ofDecembel~ 2012,
MANAGER
ATED: '2 -1'7-I :J
MlAMJ329m3.376813129325 10
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ACREEDTOtbi~ /3 dayof~ ,2012,
Witnesses:
r:/ifJ11fr4 x.. ' 7?4.U'U-
Print Name
STATE OF ILLINOIS )
)83:
COUNTY OF COOK, __ _ )
\ sour MIAMI CORPORATION
.... ( .:.... " ,..-~' '''''' \~I""·'!;.. ,
W,RockweU
The fo.egoing instruml:nt was acknllwledgeli befs~ me this loT 1-1 day of Ott \'E 'Nl,5;l'l9' ~12, b~ ow , 1t~~'L\o.,)I!l~\JLI'I,)\j,I~f!tIt.ls personalIyknovm (0 me or
produQed as iclentifioatlon"
-~<-, (, \~I,...-/
N \>(,\ lZ ' ll.jG.([.\'\
Sig~ Nam~:
Print Name:
My Commission Expires: NOTARYl'Ui3LlC
Serial No" (n0oe, ifblank): _____ _
[NOTARiAL SEAL 1
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