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Res No 099F-15-14438RESOLUTION NO.099F-1 5-1 4438 A Resolution accepting the annual report required by the South Miami Development Corporation development agreement with the City of South Miami. WHEREAS,in March,2005theCity Commission approved a mixed use project entitled "Project Sunset"located at5750SunsetDrive,which project isa unified development covering l->4 blocks (4.5acres)inthe Hometown District and includes 108 residential unitsand 87,212 square feet of commercial space.;and WHEREAS,a Development Agreement was executed between theCity of South Miami andthe South Miami Corporation bythe adoption of Ordinance No.05-05-1827 in March 2005 andis legally considered effective fora maximum period of 10yearsfromthe effective date of February 7,2008;and WHEREAS,the Development Agreement includes the requirement (Section 27,p.13) that the developer submit an annual report 30 daysbefore the anniversary of the effective date which report isa status report showing that obligations have been met and that there has been compliance with the provisions of the Agreement.Acopy 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,therevisedannualreportsubmittedtothePlanning&ZoningDepartment onJune9,2015 inaccordancewiththeDevelopmentAgreement,mustbereviewedbytheCity CommissionatapublicmeetingandtheCityCommissionmayacceptthereportor if thereisa findingbytheCommissionthattherehasbeenafailuretocomplywiththeterms of the DevelopmentAgreement,theAgreementmayberevokedormodifiedbytheCity. NOW,THEREFORE,BE IT RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF SOUTH MIAMI,FLORIDA: Section1:The 2014 AnnualReportoftheSouthMiamiCorporation(FirstNational Bank of SouthMiami)ontheirproposed "Project Sunset"locatedat5750SunsetDriveas required bySection27 of the Development Agreement,acopyofwhichis attached,ishereby approved. Section2.Effective Date.This resolution shallbecome effective immediately upon adoption byvote of theCity Commission. FAILED -P-ASSED AND AD0PTBD4his 16th day of June ,2015. Pg.2 of Res.No..099F-15-14438 ATTEST:MariaM.Menendez CITY CLERK READ AND APPROVED AS TO FORM, LANGUAGE,LEGALITY AND EXECUTION THEREOF CITY ATTORNEY APPROVED: MAYOR COMMISSION VOTE:2 -3 Mayor Stoddard:Yea Vice Mayor Harris:Nay Commissioner Liebman:Yea Commissioner Welsh:NaY Commissioner Edmond:Nay SOUthT Miarni OFFICE OF THE CITY MANAGER THE CITY OF PLEASANT LIVING CITY OF SOUTH MIAMI CE OF THE CITY MANA< INTER-OFFICE MEMORANDUM To:The Honorable Mayor &Members of the City Commission To:Steven Alexander,City Manager From:Dwayne Williams,Director of Planning Date:June 16,2015 Agenda Item No.:. Subject; A Resolution accepting the annual report required by the South Miami Development Corporation development agreement with the City of South Miami. Background: In March2005,the CityCommission approved amixed use project entitled "Project Sunset" located at 5750 Sunset Drive.The project isa unified development covering 2-%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 allowlot coverage andbuilding square footage to exceed the maximums permitted andtoallowfour(4)drive-through teller lanes where onlytwoare permitted.A second item approved wasan ordinance to accept a site planfor the project anda Development Agreement pursuant to Florida Statutes 163.3220-163.3243 via Ordinance #05- 05-1827. In June of2005,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.Thefirst change was to the phasing of the project whichcanbe found inSection4 titled"Useof 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 didnotify the City that the proposed changes have been putonhold. The Development Agreement,although adopted by the CityinMarch2005,wasnotsigned (executed)by both parties until December 26,2007.This agreement was further updated on December 4,2012 (Ordinance #28-12-2144)followingapublic 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 islistedas Exhibit "2"of the backupmaterial. SouthMiami Corporation AnnualReport-5750Sunset Drive June 16,2015 Page2of3 The2014Annual report was submitted to the City onMay8,2015byMr.JerryProctor,Esq., representing the developer,SouthMiami Corporation andislistedasExhibit"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 June2,2015CityCommissionmeeting;amotionto defer the SouthMiami Development Corporation AnnualReport passed by5-0 pending a resubmission ofafull section by section report to the Commissioners. The annual report must bereviewedby the City Commissionatapublic meeting,where they may accept the report. Recommendation: The submitted report isin compliance with the terms of the Agreement anditis recommended that the report be accepted by adoption of the attached resolution. Attachments: •Exhibit 1 •2014 South Miami Corporation AnnualReport,dated May8,2015 •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 ltems\2015X06-16-15\South MiamiDevelopment Agreement_CM Report.docx Bilzin Sumberg ATTORNEYS AT LAW June 9,2015 Jerry B.Proctor,Esq. Tel 305.350.2361 Fax 305.35*1.2250 jproctor@bilzin.com REVISED Mr.Dwayne Williams Planning Director Cityof South Miami 6130 Sunset Drive South Miami,Florida 33143 Re:South Miami Corporation Property:5750 Sunset Drive and 1-1/2 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: Thislawfirm represents theowner,South Miami Corporation ("Owner")i oftheproperty located at 5750 Sunset Drive and the 1-1/2 blocks to the south and southwest,South Miami, Florida ("Property").The Property includes the twelve (12)folio numbers referenced above,and includes the headquarters of the First National Bank of South Miami. The Owner and the Cityof South Miami ("City")entered intoa Development Agreement ("Agreement")related to the development oftheProperty.The Development Agreement,a copyofwhichis attached as Exhibit "A",was approved by the City Commission and was recorded inthePublic Records on February 7,2008.On December 4,2012,bypublic hearing approvaloftheCity Commission,an Amended Development Agreement (the "Updated Development Agreement")was approved.Therevised Development Agreement was recorded on February 27,2013 and is attached as Exhibit"B".In accordance with Section 27 of the Updated Development Agreement,theOwnerisrequiredto submit anAnnualReporttothe City.Please accept this correspondence as the AnnualReport.Thissubmittal supplements the earlier submittal dated May 8,2015 and addresses each clause in the updated Development Agreement. The development contemplated intheUpdatedDevelopmentAgreement,approvedby theCityCommissionhasnot commenced.Asaresult,the following commitmentsremain outstandingand will applyatthetime building permitpermitsfromtheCityaresought: BILZIN SUMBERG BAENA PRICE &AXELROD LLP MIAMI 4628390.1 76813/29325 1450 Brickell Avenue,23rd Floor,Miami,FL 33131-3456 Tel 305.374.7580 Fax 305.374.7593 www.bilzin.com Page 2 June 9,2015 UseoftheProperty,The property described inExhibit "A"istobeutilizedforthe project described inExhibit "C":amixed use residential,officeandretailproject witharesidential use notto exceed 108dwellingunitson approximately 4.5+/- acres.The project will include"chamfered"corners where itabutsroadway intersections pursuant toExhibit "C".The occupied space oftheproject will not exceed fourstoriesor fifty six(56)feetinheight unless otherwisepermittedby theSouth Miami comprehensive plan oritsland development regulations.The totalof occupied space oftheprojectshallnot exceed fourstories.Non-occupied space shallnot exceed a maximum height offiftysixfeet.The projectshall be builtin 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 planin one phase. •The Company may elect toutilizeBlock"C"as a temporary bank facility with drive-through lanes (notto exceed four lanes)whichfacilityshall be removed upon the issuance of the Certificate of Occupancy for the Bank facility on Block "A". The overall development of the propertyshall be conducted in accordance with the approved site planonfileat 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. PublicFacilities.Inorderto enhance publicfacilitiesin the Cityof South Miami, the Company.agrees toprovidethe 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 ofcity staff as set forthin 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 onor before receipt of the first building permit and shall include any interest or carrying cost incurred by the Cityuntil receipt of the payment." (c)Sanitary Sewers MIAMI 4628390.1 76813/29325 BILZIN SUMBERG BAENA PRICE &AXELROD LLP Page 3 June 9,2015 Water and Sewer services that comply withall requirements ofMiami- DadeCountyforany building prior to issuance ofa final Certificateof Use and Occupancy. (d)Solid Waste Solid Waste services that comply withall requirements ofMiami-Dade County for any building prior to issuance ofa final CertificateofUseand Occupancy. (e)Schools The Company commits topay upon the issuance of the initial certificateof occupancy anyrequiredMiami-Dade County School Board school impact fees. 6.Concurrency.The Cityof 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 applicationfor 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 topermitfour drive-through teller lanes within the site. (b)Special Exception toprovide 72.2%+/-lot coverage. (c)Special Use permittopermituptofour restaurants witha maximum total of 13,820+/-square feet with parking to be supplied from any excess parkingwithinthesite.Retail and restaurant parkingshall be marked and signed. 8.Development Conditions.The following conditions shallapplyto 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 tothe requirements ofallpermitsforthe project. (c)The Company shalldeveloptheprojectin conformance withthe parameters set forthin this agreement. MIAMI 4628390.1 76813/29325 BILZIN SUMBERG BAENA PRICE &AXELROD LLP Page 4 June 9,2015 (d)All development shallbeinaccordwiththesiteplansubmittedwiththe special exception andspecialuse applications,saidsite plan incorporated in Exhibit HC". (e)TheCompany shall provide the Department of Planning with a temporary parkingplan,includinganoperationalplan,which addresses construction employee parkingduringtheconstructionperiod,saidplanshallinclude an enforcement plan and shall besubjecttothereviewandapprovalby theplanningdirector prior tothe issuance ofanybuildingpermitsand shallbe enforced duringconstructionactivity, (f)All conditions imposed bytheCity Commission shallbeincorporatedin this Development Agreement. (g)Company shall reimburse theCityitslostparking revenue fromany metered parking spaces adjacent to the Property whichit occupies or uses during the construction period. (h)The Company shall donate toacitytrustfund $40,000.00 tobe used by the cityfortraffic calming or other trafficmitigation programs within the City of South Miami.This money shallbe donated to the City,priorto the issuance ofitsfirstbuildingpermit. 16.WorkForce.The Company agreesto use its best effortsto enhance job opportunities forlocal citizens in connection with the project.Tothat end and in order to maximize job opportunities for applicants from South Miami,the Company shall send notice to the Community Redevelopment Agency Directorof the Cityof South Miami,ora substitute designee by the City Manager,regarding employment opportunities related toany(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 withretail space located on the Property. 36.Abandonment of Right-of-Way.The Company agrees to use its best efforts to enhance job opportunities forlocal 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 Directorof the Cityof South Miami,ora substitute designee by the CityManager, 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 ofretail 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 caps. 1.Incorporation of Recitals.The recitals set forth above aretrueandcorrectandare incorporatedhereinbythisreference.THIS CLAUSE IS UNCHANGED. MIAMI 4628390.1 76813/29325 4 BILZIN SUMBERG BAENA PRICE &AXELROD LLP Page 5 June 9,2015 2.Property.The Companyownsthepropertyas described in Exhibit "A".This propertyis deemed tobeoneunifiedparcelandis subject totheunityoftitle pursuantto the requirementsof sections 20-7.30and 20-5.14 oftheCityLand Development Code (the MLDCM)attached hereto asExhibit "D".THE COMPANY REMAINS PROPERTY OWNER OF THE LAND DESCRIBED IN EXHIBIT "A". 3.Effective Date;Durationof Agreement.This Agreement shall be effective asof 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 Dateofthis Agreement,unless otherwise extended or terminated as provided for herein orin the act.The maximum period ofthis agreement shall be ten(10)years from the Effective Date unless extended by mutual consent ofalllegaland equitable owners of the Property and the city upon approval atapublichearing,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 Cityof 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 cityfinds 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 towndistrictwhich consists of the "Hometown DistrictOverlay Zone,"as defined inArticleVII,sections 20-7.1 through 20-7.52 of the city'sland 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 isin compliance withthis Development Agreement,andall applicable laws,ordinances,codes andpolicies in existence on June 14,2005 aswellas other requirements imposed bytheCity Commission uponthe ratification ofthesiteplanapprovalontheProperty,the Propertyshallnotbethe subject ofadown zoning applicationbytheCityand shallnot be subject toany development moratorium,referenda action, ordinances,policies,or procedures enacted by the Citythatlimitsthe development contemplated bythis Agreement and depicted inthesiteplan.Any failurebythis Agreement to address aparticularpermit,condition,termor restrictionshallnotrelieve the Company of the necessity ofcomplyingwith the law governing saidpermitting requirements,conditions,terms orrestrictions. THERE HAS NOT BEEN DOWNSIZING OF THE PROPERTY OR LIMITATIONS IMPOSED BY THE CITY TO LIMIT THE DEVELOPMENT. MIAMI 4628390.1 76813/29325 5 BILZIN SUMBERG BAENA PRICE &AXELROD LLP Page 6 June 9,2015 11.Permits,Conditions,Terms and Restrictions not Addressed.The failure of this agreement to address aparticularpermit,condition,term orrestriction shall not relievethe Company orthecityofthe necessity ofcomplyingwiththelaw governing saidpermitting requirements,conditions,terms,or restrictions. THERE HAVEBEENNO PERMITS,CONSITIONS,TERMS AND RESTRICTIONS THAT HAVE ARISEN THAT ARE NOT IN THE UPDATED DEVELOPMENT AGREEMENT. 12.DurationofPermits.The Companyacknowledges thatthis agreement does not extend the durationofany permits or approvals.THIS ACKNOWLEDGEMENT REMAINS IN EFFECT. 13.LawGoverning Development ofthe Property.The ordinances,policiesand procedures of the Cityof South Miami concerning development oftheproperty that arein existence as of the Effective Dateofthis agreement shall govern the development of the property for the durationof 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 cityand Company,subject to the terms and conditions herein.Eitherparty 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 limitedto,afailure of either partyto perform any material duty or obligation onitspartfor any thirty(30)consecutive day period.Neither party may terminate this Agreement on grounds ofmaterial breach of this Agreement unless it has provided written notice to the other party of its intention to declare a breach andto 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 withinthirty(30)days after receipt of notice.THERE HAVE BEEN NO ATTEMPTS TO TERMINATE THE AGREEMENT IN THE PAST YEAR. 15.Assignment.This Agreement may notbe assigned by the Company except toan affiliatedentity,without the priorwritten 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 isan entity of which South Miami Corporation ora majority ofits 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 andtheir counsel,andshallnot be construed against any party on account of draftsmanship.THERE ISNO CHANGE TO THIS PROVISION. MIAMI 4628390.1 76813/29325 BILZIN SUMBERG BAENA PRICE &AXELROD LLP ^ Page 7 June 9,2015 18.BindingEffect.The burdensofthis Agreement shallbebindingupon,andthe benefits ofthis agreement shallinureto,all successors in interest totheparties of this agreement.THERE ISNOCHANGETOTHIS PROVISION. 19.Captions andHeadings.Paragraph headings arefor convenience onlyandshall not be used to construe orinterpretthis Agreement.THERE ISNOCHANGE TO THIS PROVISION. 20.Applicable Laws,Jurisdictionand Venue.This Agreement shall be governed by and interpreted,construed,and enforced in accordance with the internallaws 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 litigationpertainingtothe subject matter hereof shallbe exclusively inMiami- Dade County Florida.THERE ISNO CHANGE TOTHIS PROVISION. 21.Enforcement.In any litigation arising outof this agreement,the prevailing party shall be entitled to recover its costs and attorneys fees.Attorney's fees payable under this paragraph shallnot exceed 25%of the amount of damages awarded to the prevailing party and nopartyshall 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 anhourlyrate of $300.00 per hour.THERE ISNO CHANGE TO THIS PROVISION. 22.Inspection.Nothing in this Agreement shall be construed to waive orlimit the City's governmental authority as a municipal corporation and political subdivision of the State ofFlorida.The Company therefore understands and agrees that any official inspector of the Cityof South Miami,orits agents duly authorized,have the rightto enter,inspect and investigate allactivitieson the premises to determine whether the Property complies with applicable laws including but not limitedtobuildingand zoning regulations and the conditions herein.THERE IS NO CHANGE TO THIS PROVISION. 23.Authorization to Withhold Permitsand Inspections.Inthe event the Company is obligated to make payments or improvements under the terms ofthis Agreement and such payments arenot made as required,or such improvements arenot made asrequired,inadditiontoanyother remedies available,the Cityof South Miamiis hereby authorized towithholdanyfurtherpermitson the portion ofthe Property failing tocomplywiththis Development Agreement,andrefuseany inspections orgrantanyapprovals,withregardtothatportionoftheProperty until such time this Development Agreement is complied with.THEREISNO CHANGE TO THIS PROVISION. 24.Representations of the Company.The Company represents to the City as follows: (a)The execution,deliveryand performance ofthis Agreement andallother instruments and agreements executed in connection withthis Agreement MIAMI 4628390.1 76813/29325 BILZIN SUMBERG BAENA PRICE &AXELROD LLP Page 8 June 9,2015 havebeen properly authorized bytheCompanyanddonot require further approval by Company. (b)ThisAgreementhasbeen properly executed,and constitutes Company's legal,valid and binding obligations,enforceableagainstCompany in accordance with its terms. (c)Therearenoactions,suitsorproceedingspendingorthreatenedagainst oraffecting Company beforeanycourtorgovernmental agency that wouldinanymaterialwayaffect Company's ability toperformthis Agreement. (d)Companyshallnotact in anywaywhatsoever,directly or indirectly,to cause this Agreement tobe amended,modified,canceled,or terminated, except pursuanttoits express terms,andshall take all actions necessary to ensure that this Agreement shall remain infull force and effect atall times. (e)Company has the financial capacitytopayor advance to the City all fees and payments asrequired under this Agreement. THERE IS NO CHANGE TO THIS PROVISION. 25.Severability.In the event thatanyof the covenants,agreements,terms,or provisions contained inthis agreement shall be invalid,illegal,or unenforceable in any respect,the validityof the remaining covenants,agreements,terms,or provisions contained herein shall be inno way affected,prejudiced,or disturbed thereby.THERE ISNO CHANGE TO THIS PROVISION. 26.Waivers.Nofailureordelayby Company or the Cityto insist upon the strict performance of any covenant,agreement,termor condition of this Agreement,or to exercise any rightor 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 andno breach thereof shallbe 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,termand condition of this Agreement shall continue infull force and effect with respect to any other then existing or subsequent breach thereof.THERE ISNO CHANGE TO THIS PROVISION. 27.Annual Report and Review.Itshall be the responsibility of the Company to submit an annual report to the City sufficient tofulfill 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,orits assign,shall submit an annual reportat least 30 days priorto the annual review date following the first annual report submitted in 2012 which shall be filed30 days following the execution of this Amended Development Agreement.All annual reports shall MIAMI 4628390.1 76813/29325 BILZIN SUMBERG BAENA PRICE &AXELROD LLP Page 9 June 9,2015 contain a section-by-section listingof what obligations have been met and the date finalized,as good faith compliance with the terms ofthe agreement.The city commission shall review the annual reportatapublic meeting.If the City Commission finds,on the basis of substantial competent evidence,that there has been afailureto 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 orreports required bythis 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 Cityof 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 JerryB.Proctor,Esq. Bilzin Sumberg 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 containadditional terms ofthis Agreement and are incorporated hereinby reference.THERE ISNO CHANGE TOTHIS PROVISION. MIAMI 4628390.1 76813/29325 BILZIN SUMBERG BAENA PRICE &AXELROD LLP Page 10 June 9,2015 30.Amendment.This Agreement maybe amended bymutualwritten consent of the city and Company so longasthe amendment meets the requirements oftheact, applicable city ordinances andFloridalaw.THERE ISNO CHANGE TO THIS PROVISION. 31.Entire Agreement.ThisAgreement represents theentireagreementandno prior or present agreements or representations shall be bindinguponeither the cityor Company,unless specificallyincorporatedhereinby reference,whether such prior present agreements havebeenmadeorallyorin writing.Eachparty affirmatively represents thatnopromiseshave been made tothatpartythatare not contained inthis Agreement,andtheExhibits,and stipulates that no evidence ofany promises notcontainedinthis Agreement,and the Exhibits,shall beadmittedinto evidence onitsbehalf.This Agreement shallnotbe supplemented,amended ormodifiedbyany course ofdealing,courseof performance or uses oftradeandmayonlybe amended ormodifiedbyawritten instrument duly executed byofficersofbothparties.THEREISNOCHANGE TO THIS PROVISION. 32.ThirdPartyBeneficiary.This Agreement is exclusively for the benefit of the partiesheretoandtheirAffiliatesanditmaynotbe enforced byanypartyother than the partiestothis Agreement andshallnotgiveriseto liability toanythird partyotherthan the authorized successors and assigns of the partieshereto. THERE IS NO CHANGE TO THIS PROVISION. 33.PeriodofTime.Whenever anydeterminationisto be made oractionistobe takenonadatespecifiedinthis Agreement,if such dateshall fall onaSaturday, Sunday orlegalholiday,then in such event said date shall be extended to the next day whichisnota Saturday,Sunday orlegalholiday.THERE ISNO CHANGE TO THIS PROVISION. 34.Counterparts.This Agreement maybeexecuted (including by facsimile)in one or more counterparts,andby the differentparties hereto in separate counterparts,each ofwhichwhen executed shallbe deemed to be an original but all ofwhich taken together shall constitute one andthe same agreement. THERE IS NO CHANGE TO THIS PROVISION. 35.Recordation.Within20daysafter the Amended Development Agreement has been signed byboth the CompanyandtheCity,the Cityshall cause a copy of the Amended Development Agreement toberecordedattheCity's expense in theregistryof deeds inMiami-DadeCounty.THERE ISNOCHANGETOTHIS PROVISION. 36.Abandonment of Right-of-Way.The City agrees to abandon the right-of-way adjacent tothepropertyto the buildableline.The Company shall contemporaneously grant to the Cityan easement from the right-of-way adjacent to the propertyto the buildablelineforallfuture needs oftheCity.To ensure that the proposed structure does notinterferewith the City'sfuture needs,any permanent structure extending out over the City's easement shallprovide the Citywith clearance asprovidedin the HometownOverlayDistrictin the Land MIAMI 4628390.1 76813/29325 10 BILZIN SUMBERG BAENA PRICE &AXELROD LLP rfrSS^ Page 11 June 9,2015 Development Code (10-feet minimum).THERE IS NO CHANGE TO THIS PROVISION. Please give me acallif you have any questions. Sincerely, MIAMI 4628390.1 76813/29325 11 BILZIN SUMBERG BAENA PRICE &AXELROD LLP JerryB.Proctor JBP\wp cc:Steven Alexander,City Manager Thomas Pepe,Esq.,City Attorney Bruce MacArthur Veronica Flores Don Vitek Nadine Heidrich Maria Menendez,City Clerk FVHIRIT 'A"IIHIIIMIillMIIIIHIIIIIIlfliltAnlbl!A CFN 2008R0104490 OR Bk 26203 Pss 1380-1401f (22pss> RECORDED 02/07/2008 10:53:06 HARVEY RUVINr CLERK OF COURT niMII-OADE COUHTY?FLORIDA DSVELOPMEMT AGREEMENT BETWEEK THE CITY OP SOOTH MIAMI,FLORIDA AMP SOOTH MIAMI CORPORATION THIS DEVELOPMENT AGREEMENT ("Agreement")is made as of llagoh ,QPQ6 June 14,2005 by and between THE CITY OF SOUTH MIAMI,FLORIDA a municipal corporation ("City")and SOUTH MIAMI CORPORATION ("Company")or ita assignee. RECITALS WHEREAS,theFloridaLocalGovernmentDevelopment Agreement Act,set forth in sections 163*3220 -163,3243, Florida Statutes,set forth in Exhibit "A"(the "Act") provides forthe execution ofdevelopment agreements fora term not to exceed ten (10)years to insure that the law in effectat the.time ofthe execution ofthedevelopment agreement shall govern the development of the land for the duration oftheagreement;and WHEREAS,the city commissionoftheCityof South MiamihasadoptedOrdinanceNo.05^05-182*7 whichimplements theAct and permits theconsiderationandthe adoption of this agreement;and whereas,theCompanyowns approximately 4.5+/-acres, zoned HD-OV,describedinExhibit *»,"(the "Property"); and WHEREAS,the Company desires to construct a mixed use development encompassing retail,"office and residential components described inExhibit *C,"(the^Project")inthe Hometown District Overlay Zonewithinthe City ofSouth Miami. Page 1 of 17 fcJH> Book26203/Page1380 CFN#20080104490 Page 1of22 NOW,THEREFORE,in consideration of the above recitals andthe following covenants,terms and conditions the receipt and sufficiency of which are expressly acknowledged,thecityand Company covenant andagreeas follows: 1.Incorporation of Recitals.The recitals set forth abovearetrueandcorrectandare incorporated hereinby this reference. 2.Property.TheCompanyownsthepropertyas described in.Exhibit "A",This propertyisdeemedtobeone unifiedparcelandis subject totheunityoftitle pursuanttothe requirements of sections 20.7.30and20- 5.14 oftheCity Land Developmentcode(the VLDC")attached hereto as Exhibit "D". 3.Effective Date;Duration of Agreement,This agreementshallbecomeeffectiveafterithasbeenrecorded inthe public recordsof Miami-Dade Countyand thirty (30) days after itis received by theFlorida Department of Community Affairs(the^Effective Date").This agreement shall terminate ten years fromthe effective date of this agreement;unless otherwise extended or terminated as provided for herein orinthe act.The maximum period of this agreement shallbeten (10)yearsfromthe effective date unless extended by mutual consent ofall legal and equitableownersofthePropertyandthecityuponapproval ata public hearing,asprovided in the act* 4.Use of Property,The property described in Exhibit *A"istobe utilized forthe project describedinExhibit "C":amixeduse residential/officeandretailproject witharesidentialusenottoexceed108 dwelling unitson Page 2 of yi ^J1]t\\^ Book26203/Page1381 CFN#20080104490 Page 2of 22 approximately4.5 +/-acres.Theprojectwillinclude "chamfered"corners whereit abuts roadway intersections pursuanttoExhibit "C".The occupied spaceoftheproject will not exceed four stories or fifty six (56)feet in heightunlessotherwisepermittedbytheSouthMiami comprehensive planoritsland development regulations*The totalof occupied spaceoftheproject shall not exceed four stories.Non-occupied spaceshallnot exceed a maximum height offiftysix feet.Theproject shall be built intwo phasesasfollows: •Phase I shall consist of Blocks WA"and ^^ttBw described in Exhibit MC". t Phase II shall consist of BlpcX ^B^»c"described in Exhibit WC*. •Th*Company may elect to Implement the development plan in one phase. •The Company may elect to utilise Block MC"as a temporary bank facility with drive ^through lanes (not to exceed four lanes)which facility shall be removed upon the issuance of the C»rtificata of Occupancy for the Bank facility on Block "A". The overall developmentofthe property shall be conducted in accordance withthe approved site plan onfile atthe City,(attachedandincorporatedasExhibit *B") including elevations,architectural features and estimated commercial square footage pursuant to Section 20.3-7,of the LDC, 5,Public Facilities Servingthe Project.In order to enhance public facilities intheCityof South Miami/the Page 3of 17 K"Wt Book26203/Page1382 CFN#20080104490 Page 3of22 Company agrees to provide the services listed below in compliance with Section 20-4.1 of the LDC,including: (a)Roadways An operational traffic studywas conducted,by thecityandtheCompanyagreestothe recommendationsofcitystaffassetforthin theirstaffreportwhichrecommendationsare incorporated herein by reference. (b)Parks and Recreation Based on the projected residential population on the Property,Company agrees fee-pay fog eg pgovide ifl -aegpo of—laFveV-ooocptab-fcO'••fee--tehe City fog o yublio pa?Ui In the altegjiatolver teha •Qsmpaay may pgovide-a ^subsfcibfeuteC'paymet'rtfl' Jpaood-on tho avogage'oalea pjpAee of ycoidowtial ••pgepsjpfey in fehe••aity ova*fcho kaqto yeaui (The Companyfo paymea^^sho-ld^Jie placed in oh*•epeoial fuad fsg •spending-en oapifcol Ampyevcmon<io to pagk and*geegaatian gacllltieo in the Cifcyi The -Payment shall•be mado in one lump sum on or boiEo-go a Certificate of Ooe and Oesupaaoy ie »ggantaad •£<>«tehe fiaofr goeidential unit em the Dgepegty-t—to donate $232,000 In one lump gum as its responsibility for meeting park and recreation concurrency.Payment shall be made on or before receipt of the first building permit and shall include any interest or carrying cost incurred by the City until receipt of the payment." (c)Sanitary Sewers Water andSewerservicesthatcomplywithall requirements of Miami-Dade Countyforany building prior to issuance ofa final CertificateofUseand Occupancy. Page 4 of 17 k^Hi Book26203/Page1383 CFN#20080104490 Page 4of22 (d)Solid Waste Solid Waste services that comply withall requirements of Miami-Dade County for any buildingpriortoissuanceofafinal Certificate of Use and Occupancy. (e)Schools The Company commits to pay upon the issuance oftheinitial certificate of occupancy any required Miami-DadeCounty School Board school impact fees. 6.Concurrency.TheCityofSouthMiamihas determined that the Company's performance under the Development Agreement satisfies the concurrency requirements,as delineatedinSection 20-4,1/CityCode,Byexecutionof thisAgreement,theCityacknowledgesthatthe application forsiteplanapprovalmeetsallconcurrencyregulations enumerated in Section 20-4,1of the CityCode,and that the site plan applicationandthisAgreementareconsistent withtheCity Comprehensive Planand Land Development Regulations. 7,Permits.Thepermitspreliminarilyidentifiedas necessary fordevelopmentoftheprojectare described as follows: (a)SpecialExceptionto permit four drive- through teller lanes within the site, <b)SpecialExceptiontoprovide 72*2%+/-lot coverage. (c)SpecialUsepermittopermituptofour restaurants with a maximum total of 13,820+/- square feetwith parking tobe supplied fromany Page 5 of 17 .141V Book26203/Page1384 CFN#20080104490 Page 5of22 excess parking within the site.Retail and restaurantparkingshallbemarkedandsigned, 8.Development Conditions,The following conditions shall applytothe development ofthe project: (a)TheCompanyshallmeetallapplicable building codes,land development regulations, ordinances and other laws. (b)TheCompanyshalladheretotherequirements ofall permits for the project, (c)TheCompanyshalldeveloptheprojectin conformance withtheparameterssetforthinthis agreement, (d)All development shall bein 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 Planningwitha temporary parking plan,including an operational plan,which addresses construction employee parking during the construction period, said plan shall include an enforcement planand shallbesubjecttothereviewandapprovalby theplanningdirectorpriortotheissuanceof any building permits and shall beenforced during construction activity, f)AllconditionsimposedbytheCityCommission shallbe incorporated inthis Development Agreement» g)Company shall reimburse the City itslost parking revenue fromany metered parking spaces Page 6 of 17 fclrtfo Book26203/Page1385 CFN#20080104490 Page 6 of 22 adjacent tothePropertywhichit occupies or uses during the construction period, h)TheCompanyshalldonatetoacitytrustfund $40,000.00tobeusedbythecityfor traffic calming orother traffic mitigation programs within the City of South Miami,This money shall be donated to theCity,prior tothe issuance of its first building permit. 9.Consistency with City of South Miami Comprehensive Plan and Land Development Regulations.Thecityhas adopted a Comprehensive Plan and Land Development Regulations in accordance with Chapter 163,Part II,Florida Statutes.The city finds thattheproject is consistent with the city's comprehensive plan andthe city's land development regulations.The project,a mixed use residential,office and retail development,as set forth herein,is consistent withthe MMixed-Use Commercial/Residential(Four story)" designation on thefuture land usemap,and the HD-OV zoning district ontheOfficialZoningAtlasofthe City of South Miami.Goal 2 of the Future Land Use Element identifies the defines the home town district which consistsofthe"HometownDistrict overlay Zone,"as defined in Article VII,sections 20-7,1 through 20-7.52 of thecity'slanddevelopment regulations. 10»Vesting.Aslongasthe development onthe Property isin compliance withthis Development Agreement, and all applicable laws,ordinances,codes and policies in existenceatthetimeoftheexecutionoftheDevelopment Agreement aswell as.otherrequirements imposed bytheCity Commissionupontheratificationofthesite plan,approval Page 7of 17 '' Book26203/Page1386 CFN#20080104490 Page 7of 22 onthe Property,the Property shall notbethesubjectofa down zoning,application bytheCityandshallnotbe subject toany development moratorium,referenda action, ordinances,policies,or procedures enactedbytheCity thatlimitsthe development contemplated bythis Agreement anddepictedinthesite plan.Anyfailurebythis Agreementtoaddressa particular permit,condition,term or restriction shall not relieve the Company ofthe necessityof complying withthelawgoverningsaid permitting requirements,conditions,termsor restrictions. 11.Permits,Conditions,Verms and Restrictions not Addressed.The failure ofthis agreement to address a particular permit,condition,termorrestrictionshallnot relievethe Company orthecityofthe necessity of complyingwiththelawgoverningsaid permitting requirements,conditions,terms,orrestrictions. 12.Duration of Permits.TheCompany acknowledges that this agreement doesnot extend the duration of any permits or approvals. 13.LawGoverning Development ofthe Property.The ordinances,policiesandproceduresoftheCityofSouth Miami concerning development oftheproperty that arein existenceasoftheexecutionofthisagreementshall governthedevelopmentofthepropertyforthedurationof thetermofthis agreement Nosubsequentlyadopted ordinances,policies,or procedures shall apply tothe property exceptinaccordancewiththeprovisionsof section 163.3233(2),FloridaStatutes,and Ordinance No. 05-05-1827,as attached. Page 8 of 17 /^dH Book26203/Page1387 CFN#20080104490 Page 8 of 22 14.Termination.This agreement may be terminated by mutual written consent ofthecityandCompany,subject to thetermsandconditions herein.Either party may terminate this Agreement iftheother party commitsor allows tobe committed anymaterialbreachofthis Development Agreement*A ^material breach*ofthis Agreement shall include,butnot be limitedto,a failure of either party to perform any material dutyor obligation onits part for anythirty (30)consecutiveday period.Neither party may terminate this Agreement ongroundsof material breach of this Agreement unless ithas provided written notice to the other party ofitsintentionto declare a breach and to terminate this Agreement (the "Notice to Terminate")and the breaching party thereafter failsto cure or take steps to substantially curethebreachwithinsixty (60)days following the receipt ofsuch Notice to Terminate,with the exception of monetary breaches which shall be cured within thirty (30)after receiptofnotice. 15.Assignment.ThisDevelopmentAgreementmaynotbe assigned bythe Company except toan affiliated entity, withoutthepriorwrittenconsentofthe City.Subjectto theprecedingsentencethisDevelopmentAgreementshallbe bindinguponthe successors,assigns,andrepresentatives oftheparties hereto.An affiliated entityisanentityof whichSouthMiami Corporation ora majority ofits shareholders,directly or indirectly ownsat least 51%of the beneficial interest. 16.WorkForce,TheCompanyagreestouseitsbest efforts to enhance job opportunities forlocal citizens in connection with the project.Tothat end andin order to Page 9 of 17 VH* Book26203/Page1388 CFN#20080104490 Page 9of22 maximizejob opportunities for applicants fromSouth Miami, theCompany shall sendnoticetotheCommunity RedevelopmentAgency Director oftheCityofSouth Miami, ora substitute designee by the City Manager,regarding employmentopportunitiesrelatedtoany.(1)construction work ontheProperty,(2).temporary or permanent maintenance work ontheProperty,or (3)proposals for leasing ofretailspaceor employment opportunities associated with retailspacelocatedontheProperty. 17.Joint Preparation.This agreement has been drafted withthe participation ofthecity and Company and their counsel,and shall notbe construed against any party on account of draftsmanship. 18.Binding Effect.Theburdensofthis agreement shallbe binding upon,andthebenefitsofthis agreement shallinureto,allsuccessorsininteresttotheparties of this agreement. 19.Captionsand Readings.Paragraphheadingsarefor convenience only and shall notbe used to construe or interpret thisagreement. 20.Applicable Laws,Jurisdiction,and Venue.This agreementshallbegovernedbyandinterpreted,construed, and enforced inaccordancewiththe internal lawsof Florida without regard to principles of conflicts of law. This agreement maybe enforced asprovidedin Section 163.3243,Florida Statutes.Venue for any litigation pertainingtothe subject matterhereofshallbe exclusivelyin Miami-Dade County Florida. Page 10of17 /Huh Book26203/Page1389 CFN#20080104490 Page 10 of 22 21.Enforcement.Inanylitigationarisingoutofthis agreement,the prevailing party shallbe.entitled to recover its costs and attorneys fees.Attorney's fees payableunderthisparagraphshallnotexceed25%ofthe amount of damages awarded to the.prevailing party and no party shallbe entitled to pre-judgment interest.Inany injunctive orother action not seeking damages underthis paragraph,legal fees maybe awarded inthe discretion of the court,but shall be reasonable and shall not exceed an hourly rateof$300.00perhour. 22.Inspection.Nothinginthis Agreement shallbe construed towaiveorlimittheCity's governmental authorityasamunicipalcorporationand political subdivision of the StateofFlorida.The Company therefore understands andagreesthatanyofficialinspectorofthe CityofSouthMiami,oritsagentsdulyauthorized,have the right toenter/inspect and investigate all activities on the premises todeterminewhetherthePropertycomplies with applicable lawsincludingbutnotlimitedtobuilding and zoning regulationsandtheconditionsherein. 23.Authorization to Withhold Permits and Inspections. IntheeventtheCompanyisobligatedtomake payments or improvements under thetermsofthisDevelopment Agreement and such payments arenotmadeasrequired,or such improvements arenotmadeasrequired,in addition toany otherremedies available,theCityofSouthMiamiishereby author!sed to withhold anyfurtherpermitsontheportion of the Property failing *to comply with this Development Agreement,and refuseanyinspectionsor grant any approvals,with regard tothat portion ofthe Property Page 11 of 17 #M* Book26203/Page1390 CFN#20080104490 Page 11 of22 untilsuchtimethisDevelopment Agreement iscomplied with. 24,Representations ofthe Company.TheCompany representstotheCityas follows: (a)The execution,deliveryandperformanceof this Agreement and all other instruments and agreementsexecuted in connectionwiththis Agreement havebeenproperly authorized bythe Company anddonotrequire further approval by Company. (b)ThisAgreementhas been properly executed, and constitutes Company'slegal,valid and binding obligations,enforceable against company in accordance with its terms. (c)There arenoactions,suits or proceedings pendingorthreatenedagainstoraffecting Company before any court or governmental agency thatwouldinanymaterialwayaffectCompany's ability to perform this Agreement. (d)Company shallnotactin any way whatsoever, directly orindirectly,tocausethis Agreement to be amended,modified,canceled,or terminated, except pursuant toits express terms,and shall takeallactionsnecessarytoensurethatthis Agreement shall remain in full force and effect at all times. (e)Company has the financial capacitytopayor advancetotheCityallfeesandpaymentsas required underthisAgreement. Page 12 of 17 VHj Book26203/Page1391 CFN#20080104490 Page12of22 25,Severability.In the event that any of the covenants,agreements,terms,orprovisionscontainedin this agreement shallbeinvalid,illegal,or unenforceable inanyrespect,thevalidityoftheremainingcovenants, agreements,terms,orprovisions contained hereinshallbe inno way affected,prejudiced,or disturbed thereby. 26,Waivers,No failure or delay by Company orthe Citytoinsistuponthestrictperformanceofany covenant, agreement,term orconditionofthis Agreement,orto exercise anyrightorremedy consequent uponthe breach thereof,shall constitute awaiverofanysuch breach or any subsequent breach ofsuchcovenant,agreement,termor condition.Nocovenant,agreement,term,or condition of thisAgreementandnobreachthereofshallbewaived, alteredor modified exceptbywritteninstrument.Nowaiver ofany breach shallaffectoralterthisAgreement,but eachandeverycovenant,agreement,term and condition of this Agreement shall continue infull force and effect with respecttoanyotherthenexistingorsubsequentbreach thereof. 27,Annual Report andReview.Itshallbethe responsibilityoftheCompanytosubmitanannualreportto theCity sufficient to fulfill therequirementsas.stated intheprovisionsofSection 163.3235,FloridaStatutes, and Ordinance No.05-05-2005.This agreement shallbe reviewedannuallyonthe anniversary oftheeffectivedate ofthisagreement.TheCompany,oritsassign,shallsubmit anannualreportatleast30days prior totheannual reviewdate.Thisreportshallcontaina section-by-section listingofwhatobligationshave he^tt metandthedate Page13of17 ^ Book26203/Page1392 CFN#20080104490 Page13of22 finalized,as good faith compliance with the terms of the agreement.Thecitycommissionshallreviewtheannual reportata public meeting.IftheCityCommissionfinds, onthe basis of substantial competent evidence,that there has been a failure tocomplywiththetermsofthe Development Agreement,theAgreement may be revoked or modified by the City.The obligation to submit an annual report shall conclude uponthedateon which the agreement is terminated. 28.Notices,Any notices or reports requiredbythis agreement shallbesenttothefollowing: For the City:City Manager City of South Miami 6130 Sunset Drive South Miami,Florida 33143 Copy to:Planning Director Planning and Community Development Department CityofSouthMiami 6130 Sunset Drive South Miami,Florida 33143 For the Company:South Miami Corporation Attn:Donald F.Hunterr Vice President And Wade R.Wacholz,counsel 5750 Sunset Drive South Miami,Florida 33143 Copy to: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 33133 Page 14 of 17 *•% Book26203/Page1393 CFN#20080104490 Page 14 of 22 29.Exhibits.All exhibits attached hereto contain additional termsofthisagreement and are Incorporated herein by reference* 30.Amendment.Thisagreementmaybeamendedbymutual written consentofthecityand Company ao long asthe amendment meets the requirements of the act,applicable city ordinances and Floridalaw. 31.Entire agreement.This agreement represents the entire agreement and no prior or present agreements or representations shallbe binding upon either the cityor Company,unlessspecifically incorporated herein by reference,whether such prior present agreements have been made orally orinwriting.Each party affirmatively representsthatnopromiseshavebeenmadetothatparty that arenot contained in this Agreement,and the Exhibits, and stipulates thatnoevidenceofany promises not contained in this Agreement,andthe Exhibits,shall be admitted intoevidenceonits behalf.This Agreement shall notbesupplemented,amendedor modified byanycourseof dealing,course of performance or uses of trade and may only be amended or modified bya written instrument duly executed by officers of both parties* 32.third Party Beneficiary.This Agreement is exclusively forthebenefitofthe parties hereto and their Affiliates anditmay not beenforced by any party other thanthepartiestothisAgreementandshallnotgiverise to liability to any third party other thanthe authorized successors and assigns ofthepartieshereto. 33.Periods of Time.Wheneverany determination isto be made or action istobe taken onadate specified in Page 15 of 17 Book26203/Page1394 CFN#20080104490 Page 15 of 22 this Agreement,if such date shall fall ona Saturday, Sunday or legal holiday,then in such event saiddate shall beextendedtothenextdaywhichisnotaSaturday,Sunday orlegalholiday, 34.Counterpart*.ThisAgreementmaybeexecuted (includingby facsimile)in one.ormore counterparts,and bythe different parties hereto in separate counterparts, each of which when executed shall be deemed to be an original butallofwhichtaken together shall constitute one and the same agreement. 35.Recordation.Within20days after the Development AgreementhasbeensignedbyboththeCompanyandthe City, the Applicant shallcauseacopyofthe Development Agreement tobe recorded atthe Applicant's expense inthe registryofdeedsin Miami-Dade County. 36.Abandonment ofRight-of-Way.TheCity agrees to abandontheright-of-wayadjacenttothe property tothe buildable line.TheCompanyshall contemporaneously grant tothe City an easement fromthe right-of-way adjacent to the property tothe buildable lineforall future needs of theCity.To ensure thatthe proposed structure does not interferewiththe City's future needs,anypermanent structure extending out over the City's easement shall provide the City with clearance as provided inthe Hometown OverlayDistrictintheLandDevelopmentCode (10-feet minimum). Page 16 of 17 fclW>l Book26203/Page1395 CFN#20080104490 'Page 16 of 22 PASSED AND DULY ADOPTED by the citv dbmmission of the y City of South Miami,Florida,this yflCday ol0^11**'^20QJTV CTEST APPROVED:/} 'MAYORA K/a**i Mj*vwvl,\\oMe,^Fe-Un READ AND APPROJffiD AS TO FORM: AGREED TO this 14 day of Hageh fftoe,200/. Witnesses:SOUTH MIAMI CORPORATION y^v President ^Print Name A**n<.«v.\igMogK.\^\^OK\a)CA\UJImZ- Print Name l^rJTHlft E K-PUr< STATE OF «WttBA.^u^^) ) COUNTY OF MIAMI DADBgoOK ) The foregoing instrumentwasacknowledgedbeforemethis aCo day of OscE^fe^f 200**by W ftaCKWflu.i^//?7a who is personally known tomeorwhoproduced as identification,onbehalf of the corporation. My commission expires: SLk CYNIWALKRCN OFFICIAL SEAL k ^L|, ^torylHtoBc,Stale ofliBnofc ft*,jH W*\ wyComntittlonBoinBj f r*»' Page 17 of 17 Book26203/Page1396 CFN#20080104490 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 1533221,FOR A UNIFIED DEVELOPMENT PROJECT KNOWN AS "PROJECT SUNSET"WHICH WELL INCLUDE THREE BUILDINGS UP TO FOUR (4)STORIES IN HEIGHT AND THE FOLLOWING USES:108 MULTI-FAMtLY RESIDENTIAL UNITS,, RETAIL USES,OFFICEUSES,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 THE EAST 50 FEET OF LOTS 51 AND 52 OF W,A. LARKINS SUBDIVISION ACCORDING TO THE PLAT THEREOF RECORDED IN PLAT BOOK 3 AT PAGE 1?8 OF THE PUBLIC RECORDS OF MIAMtDADE COUNTY;PROVIDING FOR SEVERABILITY;PROVIDING FOR ORDINANCES IN CONFLICT;AND PROVIDING AN EFFECTIVE DATE WHEREAS,in2005theSouthMiami Corporation isrequestingapproval of aDevelopment Agreementfora4.5acre proposed unified development tobecalled"Project Sunset"whichwillinclude atotal of 108 dwellingunitsand87,212 square feet of commercial space on.propearty located generally at5750Sunset Drive andlegally described as Lots6thru 9,40 thru 45,53thru 66 inclusive andtheeast 50feet of Lots 51 and52 ofW,A.Laridbos subdivision according totheplatthereofrecordedin plat book 3atpage 198 ofthepublicrecords of Miami-DadeCounty;and WHEREAS,the City CommissionatitsMarch 1,2005meetingadoptedaresolutionallowing twospecialexceptions and adoptedaspecialuseresolutionpermittingthelocation of four restaurants in tbe unified development;and WHEREAS,theFloridaLocal Government Development Agreement Act*setforthinsections 1633220-163,3243,Florida Statutes,providesfortheexecution of developmentagreementsto insure that thelawand regulations in effect atthetime oftheexecution of thedevelopmentagreementshallgovern thedevelopment ofthelandforthe duration ofthe agreement;and WHEREAS,theSouthMiami Corporation has proposed theexecution of a development agreement withthe City*of SouthMiami pertaining tothemixeduse project entitled "Project Sunset" which agreement would set forth all of the conditions and commitments required by fixe Cily resulting from the approval ofthe special exception and special use requests;and WHEREAS,the Planning Boardatameetingon February 22,2005afterapublic hearing, adopted amotionbyavoteof4aye1nay recommending approval ofthe proposed Development Agreementsubject to specific revisions and conditions,whichhavebeenincluded in the draft agreement; and WHEREAS,the Mayor and City Commission oftheCityof South Miami desire to accept the recommendation ofthe Planning Board. NOW,THEREFORE,BE IT ORDAINED BY THE MAYOR AND THE CITY COMMISSION OF TEE CITY OFSOUTHMIAMI,FLORIDA: I Section 1 That a Development Agreement,attached as Exhibit "A"as ?Tpey)r?^d during the I March 15.2005 public hearing,and dated March 15,2Q05 betweentheCity of South Miami,Florida,and the South Miami Corporation pertaining toa 4.5 acre proposed ' Book26203/Page1397 CFN#20080104490 Page 18 of22 Ord.No.05-05-1827 unified development tobe called "Project Sunset"which will include ft total of 108 dwelling units and 87,212 square ftet of commercial space on property located generally at 5750 Sunset Drive and legally describedasLots6thru9,40thru45,53thru 66 inclusiveandtheeast50feet of Lots 51 and52 of W. A,Larkine subdivision according tothe plat thereofrecorded in Plat Book3at page 198 ofthe public records ofMiami-DadeCountyisapproved. Section2 H any section,clause,sentence,orphrase ofthis ordinance is for anyreason held invalid or unconstitutional byacourt ofcompetent jurisdiction,this holding shall notaffectthe validity ofthe remaining portions ofthisordinance._ Section 3All ordinances or parts of ordinances in conflict withthe provisions ofthis ordinance are hereby repealed. Section 4This ordinance shall be effective immediately afterthe adoption hereof. PASSED AND ADOPTED this /<**day of lU&udL .2005 ATTEST;APPROVED: CZX. CLHRK TReading-3/1/05 2wJ>feeading-3/15/05 Q£r*"^-^g**^* APPROVED AS TO FORM: &m6Dt:ExbibifA"Development Agreement E:\CommIt&ms\2005\3-1^5u^evelopmcntAgre^iacnt BankOrddoc COMMESSIONVOTE:4-1 MayorRussell:Yea Vice Mayor Palmer:«Yea Commissioner Wisconibe:Yea CbmmiBsionerBirfcs<^oopen «^ea Commissioner Sherar Nay Book26203/Page1398 CFN#20080104490 Page 19of22 ORDINANCE NO.18-05-1840 AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF SOUTH MIAMI,FLORIDAAMENDINGTHEDEVELOPMENTAGREEMENTADOPTEDAS PART OF ORDINANCE NO,05-05-1827 WHICH APPROVED THE DEVELOPMENT AGREEMENT FOR A UNIFIED DEVELOPMENT PROJECT KNOWN AS "PROJECT SUNSET*LOCATED GENERALLY AT 5750 SUNSET DRIVE AND LEGALLY DESCRIBED AS LOTS 6 THRU 9,40 THRU 45,53 THRU 66 INCLUSIVE ANDTHE EAST 50 FEET OF LOTS 51AND52OF W-A LARKINS SUBDIVISION ACCORDING TO THE PLAT THEREOF RECORDED IN PLAT BOOK 3 AT PAGE 198OF THE PUBLIC RECORDS OF MIAMI-DADE COUNTY;THE PURPOSE OF THE AMENDMENT IS TO AUTHORIZ3B THE ADMINISTRATION TO PROVIDE A SPECIFIC AMOUNT OF PARK AND OPEN SPACE CONCURRENCY PAYMENT TO THE CITY,AMENDING THE DATE FOR PAYMENT,AND ADJUSTING THE PHASING OF THE DEVELOPMENT;PROVIDING FOR SEVERABILTTYi PROVIDING FOR ORDINANCES IN CONFLICT;AND PROVIDING AN EFFECTIVE DATE WHEREAS,,theCity Commission atits March 1,2005 special meeting approved special exceptions to permit Project Sunset",a unified mixed nse development consisting of residential,office andretailusesgenerallylocatedat5750SunsetDrive;end WHEREAS,theCity Commission atits March 15,2005 meetingadopted Ordinance No,05- 05-1827 approving a Development Agreement between theCity and the developer,the South Miami CorporationforProject Sunset;and. WHEREAS,Section4 of the Development Agreemententitled "Use of Property"setsforth a phasing schedule forthedevelopmentofthe project;and WHEREAS,theAdministrationhasnownegotiatedanamendedphasingschedulewhichshould reduce the impact ofthe development program ontrafficand parking inthe area;and WHEREAS,Section5 (b)ofthe Development Agreement entitled "PublicFacilities Serving the Project*'provides a formula for determining the amount and timing ofa park and open space concurrency payment tobemadebythe developer tothe City;and WHEREAS,the Administration has nownegotiated a specific amount and revised timing of the park and open space concurrency payment tobe made bythe developer tothe City;and WHEREAS,the Planning Board ata special meeting its May 10,2005 meeting after a public hearing,adopted a motion byavoteof5 aye 0nay recommending approval ofthe proposed amendment tothe Development Agreement NOW,THEREFORE,BE IT ORDAINED BY THE MAYOR AND THE CITY COMMISSIONOFTHE CTCY OFSOUTH MIAMI,FLORIDA ". 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 atthe March 15,2005 City Commission meeting,is hereby amended to read; 4."Use of Property.The property described in Exhibit "A**istobe utilized for the project described in Exhibit **C":a mixed useresidential,office and retail project witha residential use Book26203/Page1399 CFN#20080104490 Page20 of 22 6rd.'Ko.1B-05-1B40 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 nottoexceed108dwellingunitson approximately 4.5+/-scares.Theprojectwillinclude "chamfered"comas whereit abuts roadway intersections pursuant toExhibit "C'\Theoccupied space of theprojectwillnotexceed &ur storiesorfiftysix(56)feetinheightunlessotherwise permittedbytheSouth Miami comprehensive planorits land development regulations.Thetotalof occupiedspace of theprojectshallnotexceedfour stories.Non-occupied spaceshallnotexceeda maximum height offifty sixfeet,Theprojectshallbebuiltin 4w#phasesasfollows: •Phase I shallconsistofBlocks"A"and «©»?B»described inExhibit "C". •Phase H shall consist ofBlock *£»%£described inExhibit "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". Theoveralldevelopment of the propearty shallbeconductedinaccordance with the approvedsiteplanonfileat the City,(attached and incorporated asExhibit "C") including elevations,architectural features andestimatedcommercialsquarefootage pursuanttoSection20.3.-7,ofthe IDC.", Section2 .That Section5(b)entitled"Public Facilities Servingthe Project'*of theDevelopment AgreementbetweentheCityandthe South Miami Corporation for Project Sunsetadopted by Ordinance No.05-05-1827 attheMarch 15,2005 CityCommission meeting,isherebyamendedto read: 5."Fublic Facilities Serving the Project ****** b)Parks and Recreation Based onthe projected residential population onthe Property,Company agrees topayfor op provido >8 aoroo ofland aoeoptablo to tho City for apublio park.In tho altomiaavm tho Company maypro'i'idO"a-'*oubotitHto'payBiont"baaod on the?avcfttgc-oalco prion of rcoidciatial yi'ouotty ut tho oity ovor tholaat yoart Tho Compony'o paymont-ohall-^o plaood kfa cpccial fund for opondieg [•rooroamm faoilito in thoCity,The Payment ohnll b o-roado onto 'Of Uoo and .Occupancy io granted for mo foot rooidontiol unit on Iho Proportvn to donate 8232.000 in one lwmn sum as its responsibility for meeting park and recreation concurrency.Payment shall he made on or before receipt of the first building permit and shall include anv Interest or carrying cost incurred by the City until receipt ofthe payment." Section 3Ifany section,clause,sentence,or phrase ofthis ordinance isforany reason held invalid or unconstitutional byacourt of competentjurisdiction,this holding shall notaffectthevalidity ofthe remaining portions ofthisordinance. Section 4 All ordinancesorparte of ordinancesinconflictwiththeprovisions of thisordinanceare hereby repealed. Book26203/Page1400 CFN#20080104490 Page 21of22 H Ord.No.18-05-1840 Q ID a. 0 tNUJ lL w OJ Section 5This ordinance shall be effective immediately afterthe adoption hereof. PASSED AND ADOPTED mis M day of S»t»t^-,2005 ATTEST: C&Yinr (i>OrJ»**J>. CITY CLERK lsl Reading-6/7/05 ^Reading-6/14/05 y READ iVEDASTOFORM: APPROVED; COMMISSION VOTE:4-0 Mayor Rnssell:Yea ViceMayor Palmer:absent Commissioner Wiscombe:Yea Commissioner Birts-Coopen Yea Commissioner Sherar Yea New wording underlined;wording to be removed indicated by stribethrough \^MCM3RVFT^PlAN^IING\CoIn^l IoansV2005\6-7-05\Developroent Agreement PiqjectSunset OrdLdoc Book26203/Page1401 CFN#20080104490 Page 22 of 22 exhibit b nmHiisnlitiifHiiiuiiiuuiimiraiifi CFN 2013R015560S Oft t*25507 Hi 0S?6 -SB71 (IEpbs) RECORDED 01/47/2013 tOH7»2S HARVEY ftWIKt CLPIK DF COURT Ufltt-MH AMENDED BEVgLOp&PSNT AGREEMENT BETWEEN TgEcrrv as RftPTHMTAMiirLftRroA ANB ^OPTg MIAMI CORPORATEOM THISAMENI>EI)DIVSX>M^NrAtJRIEME^T(tfA ^ /ffi d8T of ^L^i >.2fll3 bv and between the fHTV np SOTrmMTAMT,T?T /TMTU «, Borocipal corporation ("City*)and SOUTH MIAMI CORPORATION {"Company")or its assignee. RECITALS WHEREAS,te Citycommission of .{be City of Soath M».na adopted Ordinance No.0S-B5- 1827 <6ita»hed R8 Bxhtbit "B")whi6b implemented the Florid*Local Goveraraent Development Agreement ActC'ths Act1')and permits the consideration and tfo adoption of this e-gfeement;end WHEREAS,the Company owns approximately 4-.5+A acres,zoned HD-OV,described in 'Exhibit »A/»(the "Property1');and WHER3SAS,the Company desires to construct amixed use development encompassing retell office and residential oompcmante (foe "Project1)described Jn site plan on file with the City inthe Hometown District Overlay Zoneraflimthe Cityof Sonth Miami. WHEREAS,the CKy has.concerns regarding the original Development Agreement -that was dated March 15♦2005,fully executed onApril 6,2005 but whichwasneverrecorded:and WHEREAS,the -City and the Company amended the March 15,2005 Development Agreement &&d this revised Development Agreement w&e dated June 44,2-005 and which was eventually,recorded as reqafced by statute;however,the "aineaded*development agreement was recorded as tfte original development agreement and it w&s not titled r&an am0nd&d -d&vetepment agreement;and WHEREAS,the City ins concerns regarding the signing and recording of fas June 14,"2005 Development Agreement;end WHEREAS,the Company and theCity desire tosettle tfto concsrns of the City by entering into this Amended Development Agreement:and. MIAMI 3293 V83,3 7W13/2W2S 1 EXHIBIT "B" WHEREAS,the Florida Local Government Development Agreement Aot,Beotiona 163.3220- 163*3243,Florida Statutes,(fte wAct"X te effect Oft the date oftheCity passed and adopted ft resolution agreeing onthe terms ofthe original Development Agreement,provided for the execution of development agreements for a term not to exoeed ten (50)years to insure that the law in effect at tfie time ofthe execution of the development agreement shall govern the development ofthe land for the duration ofthe agreement NOW,THEREFORE,in consideration of the above recitals andthe Mowing covenants, terms and condition*the receipt and sufficiency of whiph are expressly acknowledged,theCity and Company covenant and agree as follows: 1 v Incorporation of Rseitali.The rwitalB set forth above are tw and ocrr&ct and are incorporated herein by this refereace. %Property,Th*Company owns the property as described in Exhibit "A",This property Is deemed tobe one unified parcel and Is subject tothe unity of title pursuant tothe requirements of sections 20-7.34 and 20-5,14 of the City Land Development Code(the "LDC") attached hereto as Exhibit flDtt, 3.Effective Date}Duration of Agreement,This Agreement shall be effective as of June 14s 2005 (the "EffectiveBate"),fee date that theCity passed and adopted a resolution agreeing tothe terms and conditions of the first Amended Development Agesemsnt This Agreement*as wrrsntly amended,shall teiroinate fen years from tho Effective Bate of this Agreement,unless otherwise extended or terminated a$provided &r herein orintheactThe maximum period of this agr$em$nt shall be tea (10)years from ihc Effective Date unless extended by mutual constat of all legal and equitable ♦owners of the Property &fid the city upon approval ata public hearing,asprovided iatheAot, 4..T?se of Property*The property described in Esfcibit "A*(s to be -utilized for the project described in th©site plan cm file withthe City:a mixed useresidential,office andretail project with a residential use notto exceed 108 dwelling units on approximately 4.5 plus or ramus &c#es.The project will include "chamfered*comers where it abuts roadway Irfesectksns pursuant tothesite plan on file withthoCity,The occupied space ofthe project willnot-.exceed four stories orfiftysix (56)fset in height unless otherwise peimitfed by*tbe South Miami comprehensive planor itj*tend development regqlatlous-.The total of occupied space of the.project 'shall not exesed four stories*Noa-occupled space shall not-exceed a maximum height offifiy six feet The project shallbebuiltintwo phases as follows! «Phase Ishallconsist of Btocfc*"A11 and '"B"descr fced in Exhibit UC"„ TtflAMl 32931*3,3 7G813/29325 2 •Pha*e H shall constat ofBlock ttC,f described in Exhibit «Cn. •The Company may elect toimplement the development plan inone phase, •The Company may elect to utilize Block "C"a*a temporary bank facility with drrve-through lanes (not to exceed fetu1 lanes)whieh ftciilty shall'he removed upon the isswmoe of the CertiScateof Ocoupancy for tbeBaakfecility onBlock !lA", The overall development tfft&e property shall be conducted in accordance with the approved rite plan on file at the City,including elevations,architectural features and estimated commercial square footage pursuant to Section 20,3^7,of .the LDC. 5,Public Facilities Serving theProject la order -to enhance public facilities in Ac City of South Miami,Hie Company agree*to provide the services listed below in compliance with Section 20-4l'of the LDC,including . (fi)RpfrdwgHT An operational traffic stody was-conducted bythecity and the Company agrees tothe recommendations ofcitystaffas setforth in their staff report which recommendations are incorporated herein by reference, (b)Parksand Becreaftat Based on the projected residential population on lie Property,Company agrees to donate $232,000 in ones,lump sumasits responsibility for meeting park a&d recreation concurrency.Payment shall bemadecai or before receipt offlis -first building permit and shall include any interest or carrying cost incurred bytheCityuntil receipt ofthe paym&ntt (c)gralfetyg<w? Wafer and Sewer services that comply with all requirements of Miami-Dade County for any building prior to issuance ofafmat Cfeatiflcate ofUse and Occupancy, (d)Solid Waste Solid Waste service*that eomply with all reqniremesfe of Miami-Dade Cbunty for any building prior to issuance ofa final Certificate ofUse and Occupancy. {$Schools, The Company commits to pay upon the issuance ofthe initial certificate -of ocoupancy any required Miami-Dade CountySchool Board $chool impact fees. 6»Concttrtfetocy.TheCityof South Miami has derermined thatthe 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 aoknowledges that the:application for *ite MIAM 38931533 7HI13/29325 3 pita approval meets all concurrency regulations enumerated hi Section 20-44 of the City Code,and that the site plan application and this Agreement are-eonristent with fte City Comprehensive Plan and LandDevelepm&nt Regntatlod*. 7»Permits,Tlie permits preliminarily identified as necessary for development of the project are described a*follows: (a)Special Exception to permit four dr3ve-through teller lanes within the rite, (b)Special Exception to-provide 122%+/-lot coverage. (c)Special Use permit to permit up to four restaurants with -a maximum total of 13^20+Asquare "feat with parking tobe supplied from say Skccbs parking within the site,Retail and restaurant parldng shall be marked and signed, 8.Development Conditions.The following conditions shall apply tothe development of tie project; (a)The Company shall meet all applicable building codes,land development regulations,ordinancesand otherJaws. (b)The'Company shall adhere tothe requirements of aflpenn&s for the project (c)HieCompany shall develop the project in conformance vritii the parameters set forth inthis agreement (d)All development shall beto accord with the site plan submitted with the special exception and special use applications,said site plan on File with the City. <e)The Company shall provide the Department of Planning witha temporary parking plan*Muding an operational pfen,which addresses construction employee puking during the construction period,said plan shall include en enforcement plan and shall be subjeot to She review and approval bythe planning director prior tothe issuance ofany building permits and shall be enforced during construction activity. (f)All conditions imposed bythe Ciry Commission shall be incorporated in this. Development Agreemeot •(g)Company shall *ehabm,se the City its lost parking .revenue from :any metered parking spaces adjacent tothe Property >«inc&it occupies or uses during the constactifon period. (h)Be Company shall donate toacity trust fund $4<MKKM>9 tobe used bythe city for traffic calming orothertraffic mitigation programs within theCity of South Mjamit Thismoney shall be donated tothe City,prior to theissuance of its first bulidingpermit. MIAMI 3293183 J 7SB13/Z9325 9,Cca*fcfei>cy wiili City of South Miami Comprehensive Plan and Land Development Regulations*11*city has adopted aComprehensive Plan and Land Development Regulations inaccordance with Chapter 163,fart II,Florida Statutes.The %finds thaithe project is consistent with the city's comprehensive plan and the cjfy's land development regulations,The project, ainixed useresidential,officeand sefcdl development,as set forth hestfo,is consistent withthe *Mixed-Use Comm^ial/Residendftl (Four Story),r 'designAtton on the fetoe land use map,enci the HD-OV zoning disiriet ontite OScial Zoning Atlas ofthe Cityof Soufii MismL Goal 2ef the Future Land Use Element identifies tfcs home tewn district which consists ofto "Hometown District Overlay Zona,*as defined in Article VII,sectoW.2(WU through 20-7.52 ef the cary^s land development regulations. 10 •Vest!**As long as the development on the Property is in compliance withthis Development Agreement £nd all applicable lews,ordinances,eodes and policies in ejdsteftw >oh 'June 14,200S as well as other requirements imposed by the City Commission upon the ratification ofthe site plan approval on she Property,the Property shall notbethe subject ofa down zoning application bytheCityand shall notbe subject to -any development moratorium,referenda action,•ordinance&r"' policies,,or procedures enacted bythe City that Omits the development contemplated bythis Agreement and depicted inthe ate plan.Any failure by tfcis Agreement to address a particular perrrtft, condition,term at1 restriction shall notrelieve the Company of the necessity of complying with-the law governing said permittinginurements,Gondiikns,terms orrestricttens. Hi Permits*Conditions,Terms and Restrictiaias ttot Addressed,Thefailure of iftis agreement -to address a particular permit,condition,term or restriction BhaH .not relieve flie Company or foe city of the necessity of complying withthe law governing said permitting requirements,conditions,terms,or restrictions. *12.Buratfera of Permits.The Company acknowledges thaithis agreement does not extend tiie duration ofany perarifcs or approvals, 13,Law Gavernlng Development ofthe Property.The ordinances,policies and procedures of thfc City of S00&Miami concerning development of the pssperty that are in existence as •ofthe Effective Date of this agreetneztf shall govern 1he devetepmaat of &e property for the duration ofthe term of (ids agreement Ho subsequently adopted ordinances,poEcies,or procedures shall apply tothe property except in accordance withthe provisions of section 163,3203 (2),Florida Statutes,and Ordinance No.05-054827,as attached. 14-Termination,This agreement maybe terminated by mutual written consent of thecityand Company,subject tothe terms and conditions hsrem.Either party .may terminate this MLAMl%2mB3<3 76S13/29325 Agreement if the other party commits or allows to-be committed any material breach ofthis Agreement,A "material breach11 of this Agreement shall inelutte,butnotbe limited toh a fethire -of either party to perform any material duty or obligation onits part for anythirty (30)consecutive day period,NeSher party may terminate this Agreement on grounds of material breach of this Agreement unless It has provided written notice tothe other party -of its intention to declare a breach .and to terminate this Agreement (the "Notice to Terminate")and the breaching party thereafter fails tocureor take steps to substantially sure the breach within sixty (60)days following the receipt of suchNotioe t» Terminate,with the exception of monetary breaches whlGh shall be cured withinthirty<30)days after receipt ofnotice. 15.Assignment.Ibis Agreementmay -not be assigned bythe Company e&oept toan affiliated entity,*wlthaut the prior written consent of the City.Subject tothe preceding sentence this Agreement shall 'be binding upon the successors,assigns,and representatives of the parties .hereto,An affiliated entity £b an entity of which South Miami Corporation ora majority ofits shareholders, directly or indirectly ownsat least51%ofthe beneficial interest lft.Work Force.The Company agrees touseits bast efforts to enhance job opportunities for local citizensin connection withthe project,To that end and fa order to maximize job opportunities fbi*applicants from South Miami,the Company shall asnd notice tothe Community Redevelopment Agency Director oftheCityof South Maairii,or a substitute designee bytheCity Manager,regarding employment opportunities related toany (1)oonstmefeion work onthe Property,(2) temporary orpermanent maintenance-work on the Property,or (3)proposals for leasing of retail space or employment opportunities associated wtthretail epaoe located on the Property. 17.Joint Preparation,This Agreement has been drafted with the parti"cipfttto of the city and Company and their counsel,and shall not be "construed against any party on account -of draftsmanship. IS.Binding Affect The burdens ofthis Agreement shallbe binding upon,and -the benefits of this agreement shall mure to*all successors in interest tothe parties of this agreement 19.Captions-bslA Headings.Paragraph headings arefor convenience enly and shall notbeusedtoconstrueor mfecprjetthis Agreement 20.ApplicableLaws,Jurisdiction,and Venue,ThisAgreementshall bs governed by and interpreted,construed,and enforced in accordance withthe internal laws of Florida without regard to principles of oonfllcts of law.This agreement maybe enforced as provided in Section 163.3243,Florida Statutes*Venue for any litigation pertaining tothe subject matter hereof-shall be MIAMI 3293183,3 76jB 13/29325 6 exclusively in Miami-Dade County Florida, 2L Enforcement In any litigation arising cut ofthis 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 pm-judgment interest In any -injunctive or other action not seekkg damages under this paragraph,legal fees may be awarded in (he discretion of the court but shall be reasonable and shall notexceed an hourly rate of $300,00 per hour, 22.Inspection.Nothing in this Agreer&ent shntl be construed to waive or limit the (Sty's governmental authority asa municipal corporation and political sttbtHvisipn ofthe State of Florida,The Company therefore understands and agrees ftatAfcy official Inspector of the City ofSouth Miami,or its agenta dnly authorized*have the right to eater,inspect and investigate ell activities on the premises to detemfn*whether the Property complies-with applicable laws deluding %nt not limited to building and zoning regulations and fte-conditions herein, 23,AuthorisationtoWithholdPermits anA Inspectionst Intheeventthe Company is obligated to make-payments cr Improvements xmdcr theteams ofthis Agreement and such payments are not made as required,orsuch Improvements are not made as required,in addition toany ofter remedies .available,the CSy of SouthMiamiishereby authorized towithholdany further permits on the portion of the Property Ming to comply with this Development Agreement,and refuse any inspections or .grant -any approvals,with regard tothat portion of the Property until such time this Development Agreement Is compiled with. 24 Representations ofthe Company.The Company represents totheCityas follows? (a)The execution,delivery and .performance ofthis Agreement and all other l&strumente and agreements executed in connection with this Agreement,have been properly authorized by the Company and dojiot require farther approval byCompany. (b)This Agreement has been properly executed,and confifiiates Company's legal,y$H and binding obligations,enforceable against Company in accord ance withits terms. (o)There .are no actions,suits or proceedings pendlhg or threatened against or affecting Company before any court or governmental agency that would inanymaterial way affect Company's fibiifty to perform this Agreement (d)Company .shall notactinanyway whatsoever,directly or indirectly,to cause this Agreement tobe amended,modified,canceled,orterminated,except pursuant to Its express terms*and MIAMI 3293183.3 75513/29325 shall take all nations necessary (o ensure Chat this Agreement shall remain in fell force and ef&ot at all times, (e)Company has fee financial capacity to pay or advance totheCity all fees and payments asrequired under this Agreement 25,SevemWfiry.la the eventthatany ofthe covenants,agreements,terms,or provisions confeined intills agceameatf shall be invalid,illegal,or unenforceable In.any respect,the validity of theremaining covenants,agreements,terms,or provisions contained herein shall beinno way effected,prejudiced,or disturbed thereby, 26,Wnivets.No &3ure or delay by Company ortheCityto insist upon the strict performance ofeny eovenant,agreement,term or condition of this Agreement,orto e&ereise anyright or remedy consequent upen the breach thereof,shall constitute a waiver of sny sueh breach -or any subsequent breaoh of such covenant,agreement,term or condition*No covenant,agreement,term,or condition of this Agreement and no breach thereof shall be waived,altered er modified except by written instrument No waiver of any breach shall affect or alter this Agreement*but each and every covenant,agreement*ierm -and condition of this Agreement shall confeme infull force and effectwith respect toanyotherthen existing or subsequent breach thereof. •27.Annual Report and Review,It shall bethe responsibility of the Company to submit an annual report to fheCfty sufficient to fulfill the requirements as stated inthe provisions of Section 163.3235,Florida Statutes,and Ordinance No.05-05-2005.Una agreement -shall be reviewed annually on Che anniversary oftheEffective Date ofthis Agreement*The Company,orits assign,shall submit-an annual report at least JO days prior to the-armual review date following the first annual tepert submitted in 2012 which shall be filed 30 days following the execution ofthis Amended Development Agreement,If not already .submitted.All annual reports shall Domain a sectlon-by-section listing of what obligations have beenmet and the date finalized,as good faith compliance withthetermsofthe agreement The city commission shall review the annual report ata public meeting,IftheCity Commission fmd%ontho basis of substantial -competent evidence^thaitherehasbeena failure to complywith the terms of theAgreement,the Agreement iliay be revoked or modified bytheCity.The obligation to submit an annual report shall conclude upon the date oo which,the agreement ifc terrninatedv MIAMI3293185.3 76S13/29325 i r 28, following; For the Cify: Notices*Any notices or reports required bythis Agreement shall be sent to the Copyto: Fur the Companyt Copy to* MIAMI 3293183.3 76813/2P325 CityManager City of-South M5aml-6130 Sunset Drive South Miami,Florida 33143 Plamung Director Planning and ZoningDepartment CHy of South Miami 6130 Sunset Drive South Miami Florida 33143 SouthMiamiCorporation Attn!BruceW.MacArthur, Chairman ofthe Board •5750 Sunset Drive South Miami,Florida 33143 And NadineHeifofclr GuefHuanelal QfSear WirtzCoipoEafion 680 H Lake Shore Drive Suite 1WQ Chicago,.Illinois 60611 Jerry Bv Proctor*Esq. BifeinSnmberg Baena Price &Axelrod LLP 1450 BrickellAve^Suite 2300 Miami,Florida 33131-3456 29.Exhibits.All exhibits attached hereto contain additional terms of this Agreement and are incorporated hereinby reference. 3&Amendment This Agreement may be amended by mutual wittsn consent of th& city and Company so 3ong as the amendment meets the .requirements -of the aot,applicable city ordinances and Florida law, 31*Entire agreements This Agreement represents the-entire agreement andno prior orpresentagreementsor representations shallbe binding uponeither the cityor Company,unless specifically ineorpcrated herein by reference,whether such priot present agreements have been made orally or in writing,Bach party affirmatively represents that no promises have been made to th*t party 9 that we not contained in this Agreement,.and the Exhibits,and stipulates,that no evidence of any promisee net eoatslned in this Agreement,and fee Exhibits,*halt be admitted into evidence on to behalf This Agreement shall not be supplemented,amended or modified by any oourse of dealing, eaurse of performance or uses of trade *and may only b&amended ormodified bya written instrument dulyexecuted by officers of bolt parties, 32*Third Party Beneficiary,This Agreement is exclusively for thebenefit£f &e parties hereto and their Affiliate and ft may notbe enforced by any par#ofcer tliaa the parties to this Agreement and shall not give rise to liability to any third party other than the authorized successors and assigns ofthe parties hereto. 33.Periods of Time.Whenever nay determination istobemadeor action istobe taken on a dale specified in this Agreement!if such date shall fell ona Saturday,'Sunday or legal holiday,then In such event said date shall be extended to the next day which is net-a Saturday,Sunday orlegal holiday, 34.Counterparts*This Agreement maybe executed (laeludircg by facsimile)inone or more counterparts,andbythe different parties hereto in separate counterparts,each ofwhich when executed shall be deemed tohean original but all of which taken together shall constitute one and flie same agreement. 35.Recordation,Within20 days after theAmendedDevelopment Agreement has been signed by both the Company andthe City,theCity shall casse a copyoftheAmended Development Agreement toberecorded atthe City's expense in fee registry of 4eeds in Miami-Dade County. 36<Abandonmentof Right-of-Way,TheCity agrees to ttbandpn ths rigbt-ofrway adjacent to the property tothebuildable line,The Company shall contemporaneously grant tothe City an easement from the right-of-way adjaoentto the property tothe buildable line for all future needs &f the City*To ensure thatthe proposed structure does not interfere witb the City%future steed*,"any permanent structure extending outoverthe City's easement shall provide theCitywith clearance as provided in theHometown Overlay District in the Land Development Code (10-feet minimum). PASSED AND DULY ADOPTEDbythe CRy Commission of South Miami,Florida, this 4th dayof December,2012. __/CLEKK.^/f ^epfYMANAGER^ DATED;&~/*~/J>u *&DATBD:3^7-/3 MMMI3293tt3,3 7S813/2932S 10 READ LANGU CUTION AGREED TO this /%daYofl#S»<e&a ,2012. Witnesses: PrmiNaste Print Kame STATEOPILLINOIS) COUNTY OP COOK ) SOUTH MIAMI CORPORATION W.Rockttetl Wirtz^r^ident The foregoing instrument was acknowledged before nie this f&T™day of produced ._as identification. Tne ioregamg instrument was acKnewieagecj beTv&m^tMS r °say ar Qg^g^fe'g TUQllbv ^»^^^to me or My Commission Expires; OFFICIAL SEAL fKHAttf H&U0,STATS QP HJUWCtfS I MYOOttMtSa«EXPtftSB05/E3ffiO« MIAMI 3293183.3 76813/2932$ Sign Name:^vJfc^*^C fe^^- PrfntName:WtJtU \fr .g •K-frUA NOTARYPUSLIC Serial No,,(none,,if blarit): [NOTARIALSEAL] 11