Res No 096-20-15536RESOLUTION NO. �f96-20-15536
A Resolution of the Mayor and City Commissioners of the City of South Miami
approving a Section 20-8.9 Development Agreement with 5850 S.W. 73 STREET
LLC, a Florida limited liability company ("Developer") for the development of the
Winn -Dixie site located at 5850 SW 73rd Street and 7331 SW 59th Avenue and as
legally described herein.
WHEREAS, 5850 S.W. 73 STREET LLC, a Florida limited liability company
("Developer") is the owner of the property where the current Winn Dixie grocery store is located
(the "Property"); and
WHEREAS, Developer applied for and the City Commission approved of a Special
Exception pursuant to Section 20-8.9 of the City's Land Development Code ("LDC') for the
development of the Property (the Project); and
WHEREAS, Section 20-8.9 of the City's LDC requires a Development Agreement to be
entered into with respect to the Project, which grants certain assurances regarding the
construction, operation and maintenance of the proposed Project; and
WHEREAS, Development Agreement must be in a form approved by the City Attorney
and the terms of the Development Agreement must also be approved by the City Commission;
and
WHEREAS, The Mayor and City Commission for the City of South Miami desires to
approve the Development Agreement for the purpose of providing the terms and conditions on
which the Property is to be developed.
NOW THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY
COMNIISSIONERS OF THE CITY OF SOUTH MIAMI, FLORIDA:
Section 1. The foregoing recitals are hereby ratified and confirmed as being true and
correct and are hereby made a specific part of this resolution upon adoption hereof.
Section 2. The City Manager is authorized to execute the Development Agreement, a
copy of which is attached hereto.
Section 3. Corrections. Conforming .language or technical scrivener -type corrections
may be made by the City Attorney for any conforming amendments to be incorporated into the
final resolution for signature.
Section 4. Severability. If any section clause, sentence, or phrase of this resolution is for
any reason held invalid or unconstitutional by a court of competent jurisdiction, the holding shall
not affect the validity of the remaining portions of this resolution.
Pagel of 2
Resolution No. 096-20-15536
Section 5. Effective Date. This resolution shall become effective immediately upon
adoption.
PASSED AND ADOPTED this 4'h day of Au us 2020.
ATTEST: APED:
CITY'tLEek ZMAYOR
READ AND APPROVED AS TO FORM,
LANGUAGE, LEGALITY AND
EXECUTION THEREOF
CT ATTORNEY
COMMISSION VOTE: 5-0
Mayor Philips:
Yea
Vice Mayor Welsh:
Yea
Commissioner Harris:
Yea
Commissioner Liebman:
Yea
Commissioner Gil:
Yea
Page 2 of 2
Agenda Item No:6.
City Commission Agenda item Report
Meeting Date: August 4, 2020
Submitted by: Thomas Pepe
Submitting Department: City Attorney
Item Type: Resolution
Agenda Section:
Subject:
A Resolution of the Mayor and City Commissioners of the City of South Miami approving a Section 20-8.9
Development Agreement with 5850 S.W. 73 STREET LLC, a Florida limited liability company ("Developer") for
the development of the Winn -Dixie site located at 5850 SW 73rd Street and 7331 SW 59th Avenue and as
legally described herein. 3/5 (City Attorney)
Suggested Action:
Attachments:
Res ApprovingWinnDixie ProjectDevAgree.doc
DevelopmentAgreementwithExhibitsFinal(2).pdf
CFN: 20200456743 BOOK 32056 PAGE 4025
DATE:08/19/2020 12:04:53 PM
HARVEY RUVIN, CLERK OF COURT, MIA-DADE CTY
DEVELOPM ENT AGREEMENT
between
5850 S.W. 73 STREET LLC. a
Florida limited liability company
and
CITY OF SOUTH MIAMI, a
Florida municipal corporation
and
COVENANT RUNNING WITTY THE LAND
DATED AS OF A UQWj,�.. 2020
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CFN: 20200456743 BOOK 32056 PAGE 4026
DEVCLOPiVIENT AGREEMENT
THIS DEVELOPMENT AGREEMENT ("Agreement") is executed as of this M—IL day of
t� , 2020, by and between the Cl"f'Y OF SOUTH MIANG, a Florida municipal
corpis Lion t" City") and 5850 S.W. 73 STREET LLC, a Plorida limited liability company
("Developeel.
RECITALS:
A. Developer is the owner of the property more particularly described in Exhibit Al
attached hereto (the "Property").
B. Developer has applied to the City Commission for approval of a Special Exception
pursuant to Section 20-8.9 of the City's Land Development Code ("LDC").
C. Section 204.9 of the City's LDC requires a Development Agreement to be entered
into with respect to the P�ojeet, as defined below, which grants certain assurances regarding the
construction, operation, and maintenance of the proposed Project.
D. The City and Developer desire to enter into this Agreement for the purpose of
providing the terms and conditions on which the Property is to be developed.
NOW, THEREFORE, in consideration of the premises and the mutual covenants herein
contained, and for other good and valuable consideration, the receipt and sufficiency of which arc
hereby acknowledged, the City and Developer hereby mutually covenant and agree as follows:
ARTICLE L EXMDJTS. DEFINITIONS. AND FURTHER ASSURANCES
Section 1.1 s i ' • Attached hereto and forming a part of this Agreement are the
following Exhibits':
I' •hi • it Legal Description of Property
Exhibit B_ l Special Exception Approval,
City Resolution No. 050-20-15490
hibit Q I Anticipated Development Schedule
Exhibit D I B undarics of the Public Plaza
Section 1.2 Defiagd TermA. In addition to other terms defined in this Agreement, as
used herein the term:
' To the extent that any exhibit conflicts with the languanc and terms of the Agreement, the
language and tenns of the Exhibits will govern.
Page 2 o1*24
CFN: 20200458743 BOOK 32058 PAGE 4027
"Affiliate" or "affiliate" means with respect to any Person (i) any Person directly or
indirectly controlling, controlled by or under common control with such Person (ii) any officer,
director, general partner, member, manager or trustee of such Person or (111) any Person who is an
officer, director, general partner, member, manager or trustee of any Person described in clauses
(i) or (ii) of this sentence. For purposes of this definition, the terms "controlling," "controlled by"
or "under common control with" means the possession, direct or indirect, of the power to direct or
cause the direction of the management and policies of a Person or entity, whether through the
ownership of voting securities, by contract or otherwise, or the power to elect at least fifty percent
(50 A) of the directors, managers, general partners, or persons exercising similar authority with
respect to such Person. For purposes hereof the term "Person" means any legal entity, (including
corporations and limited liability company), any association of individuals or business entities,
any trust (including business trust, real estate investment trust, common law trust, or other trust),
any partnership (including general partnership, limited partnership, limited liability limited
partnership, limited liability partnership), joint venture, or two or more persons or entities (or any
combination thereof and the estates of any of those individuals) having a joint or common
economic interest, or any individual (or estate of such individual).
"agreement" means this Development Agreement, as the some may be modified or
amended from time to time.
"Applicant" means the entity who applied for a Special Exception approval of the Project
pursuant to Section 20-8.9, LDC.
Miami.
"Cites unless otherwise specified or required by the context, means the City of South
"Civ Man er" means the City Manager of the City of South Miami.
" ' means 5850 S.W. 73 Street LLC, or its successors or assigns if such
succession or assignment is authorized.
"Developer Immovemente' consists of the improvements contemplated to be constructed
by Developer pursuant to the Regulatory Plans.
"Due Diligence" means that a party must commence the activity required by this
Agreement (the Goal) as soon as possible and diligently, persistently and in good faith pursue the
accomplishment of the Goal without delay on the part of said party.
"Electronic Communication" includes e-mail, facsimile transmission, or any non-physical
communication means that may be developed in the future.
"Event of,Default" has the meaning ascribed to it in Section 3.3.
"Existing ZoniMC means the zoning in effect on the Effective Date of this Agreement,
which specifically includes the text amendments approved in connection with the approval of the
Project and codified in City Ordinance No. 17-20 2371.
"Force Ma'eure Events!' includes, without limitation, strikes, lockouts, acts of God,
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CFN: 20200456743 BOOK 32056 PAGE 4028
pandemic, unusual delay in obtaining or inability to obtain labor or materials due to governmental
restrictions, enemy action, civil commotion, fire, hurricane, severe weather, sabotage, unavoidable
casualty or other similar causes beyond the reasonable control of a party. Force Majeure events
do not include a party's insolvency or financial condition or anything that causes a default in any
Project financing or difficulty in obtaining financing.
"L� means any lender, and any successor, assignee, transferee, or designee of such
lender, which provides financing, secured or unsecured, in connection with the Project, which
include, without limitation, any mortgagee.
"Plaza" means a privately -owned area of land that functions as part of the public realm and
is open to members of the public and as otherwise defined in Section 20-8.2 of the LDC.
1P c'e e' means the improvements to be developed by the Developer on the Property
pursuant to the Regulatory Plans.
e lat " has the same meaning as set forth in Section 2.1.
"Section""'Subsection%" "Para " u Sara h" "Clause" or "S au "
followed by a number or letter means the section, subsection, paragraph, subparagraph, clause, or
subclause of this Agreement so designated unless otherwise indicated here or within this
Agreement. All references to Section 20 followed by a dash refers to Chapter 20 of the City's
LDC as it existed on June 2, 2020.
"Special Exce ion"_ mean the required process for approval of a Large -Scale Development
as set forth in Section 20-8.9, LDC.
"Spe&iglExcpgoon Approval" means City Resolution No. 05 20-15490 adopted June 2,
2020 and attached as Exhibit B 1 to this Agreement.
Section 1.3 Aggrovals and Cons=, Wherever in this Agreement the approval or
consent of any party is required, and except as otherwise specified, such approval or consent will
not be unreasonably withheld or delayed.
Section 1.4 Conditions Pursuant to Resolution &j roving 59ecia, 1 Exception.
General Conditions
1.4.1. The proposed development will be substantially built in accordance with the
documents submitted including: Letter of Intent; Exhibit A (April 20, 2020); Planning Board
Submittal (04/20/2020); Loading Management Plan (April 21, 2020); and Traffic Study (April
2020). Plans submitted entitled "South Miami Market", consisting of a total of 69 sheets;
Architectural Plans prepared by Corwil Architects (43 sheets); Landscape Plans prepared by
Geomantic Designs, Inc. (13 sheets); and Civil Plans prepared by Kimley Horn (13 sheets). The
survey was prepared by Narcisco J. Ramirez and consists of one sheet dated April 2, 2018. In
addition, the following amendments to these plans: Ground floor site plan (updated
5/26/2020)(reflecting that a column has been removed from the loading zone to accommodate two
WB-50 trucks on -site); Loading Area Management Plan Exhibit 3 (updated 6/2/2020x reflecting
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CFN: 20200456743 BOOK 32056 PAGE 4029
the removal of the column noted above to allow for two WB-50 trucks on -site); SoMi Market -
WB50 Maneuverability (4 sheets, updated 5/26/2020Xshowing the maneuverabilitylaccess for
both WB-50s into the loading area); Landscaping Sheets L-3, L-4, L-5, L-7, L-9, and L-12 (all
updated 6/112020)(showing the replacement of bromeliads with soft tip agave and the inclusion of
the DeepRoot system as requested at First Reading); the presentation of the South Miami Market
to the Planning Board on May 12, 2020 (shown by the Applicant at the May 12. 2020 Planning
Board hearing and May 19, 2020 City Commission Hearing); and the presentation of the South
Miami Market to the City Commission on June 2, 2020 (shown by the Applicant at the June 2,
2020 City Commission hearing).
1.4.2. All Streetscape Improvements required under any approvals must be completed
prior to the first Certificate of Occupancy unless such deadline is extended by the City Manager.
1.4.3. Improvements to the Public Right -of -Way must first be approved by the City of
South Miami and all other applicable agency such as FDOT and Miami -Dade County.
1.4.4. All impact fees must be paid prior to issuance of building permit.
1.4.5. Developer must provide a declaration, signed by the Developer under penalties of
perjury and in accordance with §92.525, Fla. Stat., attesting to the fact that the Project is in
compliance with the applicable Level of Services requirements prior to the issuance of building
permit to the Property. If any concurrency approvals expire a re -review must be obtained by the
Developer from the appropriate agency and a new declaration must be delivered to the City
Manager within 30 days of the expiration date.
1.4.6. A new Concurrency Analysis will be prepared by the City if there are any changes
that increase densities, intensities, or population and if any additional fees are charged, they must
be paid for by the Developer.
1.4.7. Applicant must submit verification from Miami -Dade County that the proposed
new development has been reviewed and approved for all access management considerations prior
to site plan approval.
1 A.S. Finished floor elevations must be reviewed and approved for consistency with
FEMA requirements and the City's National Insurance Flood Program Ordinance prior to building
permit approval.
1.4.9. The Developer must be in compliance with applicable conditions and requirements
by Miami -Dade County Public Works Department, Fire Rescue Department, Department of
Regulatory and Economics Resources - DERM (DRER), and Miami -Dade County Water and
Sewer Department, if any.
1.4.10. A secured bicycle room with amenities will be made available to the commercial
component of the development if the Developer desires to use the bicycle bonus provision to add
a floor.
1.4.11. So long as the Developer is required by Section 20-8.3(A)(4) to have a grocery
store, the City may enforce the parking requirements of Section 20-8.3(A)(4).
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CFN: 20200456743 BOOK 32056 PAGE 4030
1.4.12. Construction must only take place Monday through Saturday during the hours of
7:30 am. and 6:00 p.m. Clean-up type activities that do not involve mechanical equipment will
be allowed on Sundays between 8:00 a.m. and 5:00 p.m.
Landscape
1.4.13. Developer must execute and record in the public records of Miami -Dade County, a
Maintenance Covenant, in a form approved by the City Commission and City Attorney, which
complies with the requirements of Land Development Code Section 20-9.9 before a building
permit is issued to the Developer pursuant to Section 20-8.9(1).
1.4.14. Developer must meet all of the minimum requirements of the City Code, Chapters
18 and 24 of the Miami -Dade County Code and specifically comply with all conditions imposed
by Miami -Dade County Department of Regulatory and Economic Resources - DERM (DRER), if
any.
1.4.15. Pursuant to Sec. 20-4.5, as may be amended, Developer must preserve existing trees
(including native trees) during the development of the project, wherever possible. if the trees must
be removed, the Developer must mitigate the impact in accordance with City requirements. If the
relocated trees do not survive, the Developer must replace the trees in compliance with City
requirements.
I A.16. The Landscape Plan (Sheet L-1) notes that the Developer proposes to donate fifteen
(15) existing Saba] Palms to the City. Should the City not accept this donation the Developer must
mitigate these Palms as required by the City Landscape Code.
1.4.17. The Property must be landscaped in accordance with the landscape plan, included
with the site plan submittal and approved by the Environmental Review and Preservation Board.
Environmental
I A.18. The Project must be in compliance with the requirements of the Miami -Dade
County Water -Use Efficiency Standards Manual (effective January 2009), as may be amended
from time to time.
1.4.19. All on -site storm water drainage systems must be maintained in working order. The
on -site storm water drainage system must be designed and maintained to store the Project's storm
water ninon on -site as required by applicable storm event design requirements of DERM or
SFWMD whichever controls. Parking is not allowed on top of any drainage inlet or drainage
manhole.
Construction General Conditions
1.4.20. A Construction and Maintenance of Traffic (MOT) Plan must be provided by the
Developer to the Building and Public Works Departments for approval prior to start of
construction. Access points by construction vehicles must be provided within the MOT. All
construction vehicles must use SW 58d' Court, SW 73rd Street, or SW 74' Street unless otherwise
approved by the Department.
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1.4.21. The Developer must provide for the reconstruction of the adjoining roadways,
sidewalks, and drainage to their conditions prior to construction, or better, and to provide a
performance bond equal to 100% of the total cost of reconstruction.
1.4.22. The Developer must provide a Construction Air Quality Management Plan to the
Department prior to the start of construction.
1.4.23. A Construction, Demolition and Materials Management Plan (CDMMP) must be
submitted by the Developer at time of building permit.
Architecture
I A.24. Final approval of all plans must be obtained from the Environmental Review and
Preservation Board and Developer and must be in substantial compliance with the approved plans
including design, materials, and color palette.
velouer's Proffered Refioemenrand Commitments
I A 25. Th_ _ e Mr_d „ bat Streetscape. The Developer shall perform streetscape
improvements on 73rd street between 58th Court and 59th Avenue (the "Streetscape
Improvements'). The 73rd Streetscape Improvements include sidewalk paver improvements,
street pavement improvements, and crosswalk improvements. As part of the Streetscape
Improvements the Developer shall submit roadway geometry alignment design plans for review
and approval by the City Manager or City Manager designee tQ meet the Miami -Dade County
public works minimum design standard for 73rd street, 59th Avenue and 58th Court intersections,
and on -street parking.
1.4.26. Supplemental Traffic Counting. The Developer shall perform traffic counts on 59th
Avenue between 74th Street and 80th Street and 59th Court between 76th Street and 78th Street
within 18 months of final Certificate of Occupancy and provide those results to the City Manager.
1.4.27. Mobft Improvement Payment. The Developer shall provide the City with a
pedestrian mobility improvement payment to the City's general fund in the amount of $250,000
payable at time of building permit for the City to use in its discretion to fund public realm
improvements ("Mobility Improvement Payment"). If, following completion of the construction
of the Project approved herein, the Miami -Dade County Property Appraiser ("Property
Appraiser") assesses the value of the lands together with the completed building at less than S70
million in the first year following issuance of the final Certificate of Occupancy, then the
Developer shall provide an additional $250,000 payment to the City's general fund for the City to
use for the same purposes described in the immediately preceding sentence ("Second Mobility
Improvement Payment") to be paid within 180 days of the Developer's receipt of notice of the
Property Appraiser's post completion assessed property valuations. Conversely, if the Property
Appraiser assesses the value of the lands and the completed building at $70 million or more in the
first year following issuance of the Certificate of Occupancy, then the Second Mobility
Improvement Payment shall not be due.
1.4.28. Bird -Friendly. Design. The Developer shall incorporate bird -friendly design
principles into its use and selection of glazing products and lighting design for the development.
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1.4.29. Cistern,. The Developer shall incorporate a cistern to be used where feasible for the
drip irrigation of landscaping planted on or contiguous to the site. It is expressly recognized that
drip -irrigation may not be sufficient for all of the Project's irrigation needs.
I A.30. Solar. The City recognizes that limited roof area exists for the Developer to
incorporate solar panels and that the Developer is constrained in its ability to generate a substantial
amount of power through solar. Nevertheless, the Developer agrees to incorporate solar panels
where feasible, with the location of the panels to be the Developer's sole discretion, to provide
some amount of solar power to a building feature or component.
1.4.3 L The Developer shall abide by the Hours of Operation, Monitoring Ingress and
Egress, and Loading Dock Manager sections of the SoMi Market Loading Area Management Plan
dated April 21, 2020 prepared by David Plummer & Associates and submitted by the Applicant.
1.4.32. The delivery trucks serving the Project shall not enter upon, park, turn or otherwise
enter the parking lot or other portions of the property identified as 5900 S.W. 73rd Street, South
Miami, Florida 33143, and Folio No. 09-4036-029-0010.
1.4.33. The doors to the loading area garage of the Project facing SW 59th Avenue shall
be closed except during active loading and unloading operations.
ARTICLE U.
Section 2.1 RgSMI ory Plans. Developer and the City acknowledge and agree that the
Property will be developed in substantial conformance with the architectural, engineering and
landscaping plans listed in Section 1.4.1 of this Agreement as the same may be amended, with the
approval of the City Commission, from time to time and the terms and conditions of this
Agreement; (collectively, the "Regulatory Plans") it being agreed that any amendments to the
Regulatory Plans will comply with the City's process for amending a site plan.
Section 2.2 Proiect Uses. In accordance with Section 20-8.9(F), the Project shall not
contain a single permitted use that exceeds eighty thousand (80,000) square feet of gross floor
area, except that no such limitation shall apply to residential uses. The Project shall contain a full
service grocery store and a minimum of 20,000 square feet of ground floor devoted to a grocery
store, exclusive of back of house, loading area and common areas of the building (the "Grocery
Store Space). If the Grocery Store Space is vacant for more than two (2) years or if a grocery
store is not feasible as determined in Section 20-8.3(A)(4)(0, the Developer must comply with all
the applicable requirements of Section 20-8.3(A) and 10% of the dwelling units above the second
floor must be Affordable Housing of which one half (02) must be set aside for Low Income and
Very Low Income Individuals and Families and one half (1/2) must be set aside for Moderate
Income Individuals and Families.
Section 2.3 Anticipate Dev&Rment Schedule. It is currently contemplated by
Developer that the Property will be developed in accordance with the time frames set forth on
ExbIbit CI attached hereto.
Section 2.4 Plaza. The Plaza indicated on the Regulatory Plans, and as more clearly
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defined in the attached Exhibit DI will be open to the public in accordance with Section 20-8.10(C)
for so long as the Development is 9 stories in height but subject to (a) closures required from time
to time for replacement and repair and (b) reasonable limitations on hours of operation as
established by Developer from time to time. The Plaza will be maintained by Developer at a level
of quality equal to or higher than the City's standards for municipal public open spaces in effect
on the date hereof.
Section 2.5 Parkin& Parking will be provided as set forth in the Regulatory Plans, the
Resolution approving the Special Exception, Exhibit C1, and as required by the MU-M zoning
district regulations.
ARTICLE III. LAND USES
Section 3.1 For the term of this Agreement, the City agrees that it shall
permit the development of the Property in accordance with the Existing Zoning, the City's adopted
Comprehensive Plan, the Special Exception Approval and this Agreement. Nothing contained in
this Agreement shall prohibit additional permitted or special uses on the Property as any change
in regulations subsequently enacted by the City that are applicable by to the Property. The
expiration or termination of this Agreement shall not be considered a waiver of, or limitation upon,
the rights, including, but not limited to, any claims of vested rights or equitable estoppel, obtained
or held by Owner or its successors or assigns to continue development of the Property in
conformity with all prior and subsequent development permits or development orders granted by
the City. However, nothing contained herein shall prevent the City from applying subsequently
adopted laws and policies to this development if the local government has held a public hearing
and determined:
(a) They do not prevent development of the land uses, intensities, or densities in the
development agreement; and
(b) They are essential to the public health, safety, or welfare, and expressly state that they
shall apply to a development that is subject to a development agreement; and
(c) Substantial changes have occurred in pertinent conditions existing at the time of
approval of the development agreement; or
(d) The development agreement is based on substantially inaccurate information supplied
by Developer.
The expiration or termination of this Agreement shall not be considered a waiver of, or limitation
upon, the requirement, and City's enforcement, of the LDC. Developer will devote the Property
and Developer Improvements only to the uses specified in this Agreement and to be bound by and
comply with all the provisions and conditions of this Agreement.
Section 3.2 Character and -Opgratign Standardsa[ld M- yeloper
I provements. The parties recognize and acknowledge that the way the Project is developed,
operated, and maintained are matters of great public importance to the City. Therefore, the
Developer hereby agrees to develop, operate and maintain the Project and all other property and
equipment located thereon which are owned, leased or maintained by Developer in good order,
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condition, repair and appearance and in a manner and in compliance with all applicable federal,
state or local laws, rules, regulations, codes or ordinances. To help accomplish this result,
Developer will establish such reasonable rules and regulations governing the use and operation
of the Project and by tenant§ therein as Developer may deem necessary or desirable in order to
assure the level of quality and character of operation of the Project required herein, and Developer
will use all reasonable efforts to enforce such rules and regulations. However, nothing contained
herein will be or be deemed to be any contract or agreement by the City, in its municipal capacity,
to grant approvals for the Project or with respect to any zoning decisions affecting the Project.
Section 3.3 Fallsut'e-Pt&Mance of Covenants.
3.3.1 In the event the Developer fails to perform in accordance with or to comply with
any of the covenants, conditions and agreements which are to be performed or complied with by
the Developer in this Agreement (a "Default") and fails to cure the Default within thirty (30) days
(the "Cure Period") after receiving written notice of the Default or fails to use all
Due Diligence in commencing the cure and in proceeding to effectuate the cure. If the
Developer is unable to timely cure the default after receiving written notice, the Developer may
request an extension of time from the City Commission which may be granted ("Extended Cure
Period") upon presentation of substantial competent evidence establishing the Developer's good
faith and Due Diligence, justifiable reasons for the delay and the amount of time needed to cure
the default. In the event that the Developer fails to cure the Default within the Cure Period, or
within the Extended Cure Period(s), whichever is greater, such failure will constitute an Event of
Default and a fine will be assessed against the owner Developer in the amount of one hundred fifty
dollars ($150.00X or such amount as may be set forth in the City Fee Schedule, for each day the
Developer remains in Default thereafter.
3.3.2 In the event that a fine is assessed against the Developer, or the City incurs any
expense towards curing the Default, the City will have the right to file a lien, or a continuing special
assessment lien, as may be applicable, against the Property and file a lien foreclose action for the
fall amount of money incurred by the City for said expense as well as for any fine that has been
assessed. The City's lien will be perfected upon being recorded in the land records in Miami -Dade
County, Florida and will be of equal rank and dignity as the lien of City's ad valorem taxes and
superior in rank and dignity to all other liens, encumbrances, titles and claims in, to, or against the
land in question, unless in conflict with state statutes or Miami -Dade County code.
3.3.3 The City has the right to proceed against the Developer to collect the above -
described costs and expenses without resorting to a lien and/or lien foreclosure. The City's
remedies include all those available in law or in equity, including injunctive relief. The exercise
of one available remedy will not be deemed a waiver of any other available remedy.
Section 3.4 Unavoi ab Delay or Force Majeure Events.
3.4. l Notwithstanding any of the provisions of this Agreement to the contrary, and except
as provided herein, neither the City nor Developer, as the case may be, nor any successor in
interest, will be considered in breach of or in default of any of its obligations, including, but not
limited to, the preparation of the Property for development, or the beginning and completion of
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construction of the Developer Improvements or the Offsite Improvements, if any, or progress in
respect thereto, in the event of unavoidable delay in the performance of such obligations due to
Force Majeure Events. All applicable time period(s) impacted by Force Majeure Events will be
extended for the length of the unavoidable delay caused by said event.
3.4.2 With respect to any Force Majeure Event that results in any damage to the
Developer Improvements and/or the Offsite Improvements all applicable time period(s) will be
extended for the following periods of time: (i) from the date of the Force Majeure Event causing
damage through and including the date the Developer receives all insurance proceeds related to
such damage, provided the Developer exercises Due Diligence and (ii) following receipt of all
insurance proceeds needed to pay for the completion of the repair, through and, as long as the
Developer exercises Due Diligence it will include the reasonable time period which is needed for
the Developer to restore the Developer Improvements and/or Offsite Improvements to the
condition which existed immediately preceding the Force Majeure Event causing the damage.
Notwithstanding the foregoing, if the damage to the Developer Improvements and/or the Offsite
Improvements is not covered by insurance all applicable time period(s) will be extended for the
following periods of time: (i) from the date of the Force Majeure Event causing damage through
and including the date the Developer secures the financing necessary to repair the damage to the
Developer Site and/or Off -Site Improvements, provided the Developer exercises Due Diligence
and (ii) as long as the Developer exercises Due Diligence it will include the time period following
receipt of the financing through and including the reasonable time period which is needed for the
Developer to restore the Developer Improvements and/or Ofisite Improvements to the condition
which existed immediately preceding the Force Majeure Event causing the damage.
Section 3.5 Qhlistations. Rights 1Wd Remoedies ative. The rights, remedies and
privileges of the parties to this Agreement, whether provided by law or by this Agreement, are
cumulative, and the exercise by either party of any one or more of such remedies will neither be
deemed to constitute an election of remedies, nor will it preclude the party exercising such other
additional rights, remedies or privileges, or from exercising at the same or different times, of any
other such remedies for the same default or breach, or of any of its remedies for any other default
or breach by the other party. No waiver made by either party with respect to performance, or
manner or time thereof, of any obligation of the other party or any condition to its own obligation
under this Agreement will be considered a waiver of any rights of the party making the waiver
with respect to the particular obligations of the other party or condition to its own obligation
beyond those expressly waived in writing and to the extent thereof, or a waiver in any respect in
regard to any other rights of the party making the waiver or in regard to any obligation of the other
party. No waiver may be implied by the acts or omissions of the parties to this Agreement or any
of their agents, officers, directors, or employees. In the event of a violation of this Agreement or
the Maintenance Covenant, in addition to any other remedies available, the City of South Miami
is hereby authorized to withhold any future permits and refuse to make any inspections or grant
arty approval, until such time as the Developer is in compliance with this Agreement..
Section 3.6 Waiver- of Jury Trial. City and Developer knowingly, irrevocably
voluntarily and intentionally waive any right either may have to a trial by jury in state or federal
court proceedings in respect to any action, proceeding, lawsuit or counterclaim arising out of this
Development Agreement.
Page I 1 of 24
CFN: 20200456743 BOOK 32056 PAGE 4036
ARTICLE IV. RESTRIC= COVENIANTS,
Section 4.1 'Mis Development Agreement constitute a covenant running with the land and
shall be recorded, at Owner's expense, in the Public Records of Miami -Dade County, Florida. It
will remain in full force and effect, and its restrictions are binding upon the current and future
owner, including the owner's heirs, successors, personal representatives, assigns, mortgagees and
lessees, until such time as it is released by the City Commission or in accordance with this
Agreement. Notwithstanding anything contained herein to the contrary, the requirement for a
public plaza and maintenance covenant will survive the termination of this Agreement, unless
specifically released by the City Commission.
Section 41 Use Prohibid-ons of the ftg2 jdy and Develog_er Improvements. The Property
may not be used by Developer nor may Developer permit the use of same for the following: Any
unlawful or illegal business, use or purpose, or for any business, use or purpose which is immoral
or disreputable (including without limitation "adult entertainment establishments" and "adult
bookstores!) or extra -hazardous, or in such manner as to constitute a nuisance of any kind (public
or private}, or for any purpose or in any way in violation of the certificates of occupancy (or other
similar approvals of applicable governmental authorities) or of rules, regulations, ordinances or
laws applicable to the Property.
Section 4.3 No Discrimination,_
4.3.1 No covenant, agreement, lease, conveyance or other instrument concerning the sale,
lease, use or occupancy of the Property and Developer Improvements or any portion thereof will
be effected or executed by Developer, or any of its successors or assigns, whereby the Property
and Developer Improvements or any portion thereof is restricted by Developer, or any successor
in interest, upon the basis of race, color, religion, sex, national origin, or handicap. Developer will
comply with all applicable state and local laws, in effect from time to time, prohibiting
discrimination or segregation by reason of race, color, religion, sex, national origin, or handicap
in the sale, lease, use or occupancy of the Property and Developer improvements or any portion
thereof. Furthermore, Developer agrees to make accommodations for the handicapped as required
by law and that no otherwise qualified handicapped individual will, solely by reason of his or her
handicap, be excluded from participation in, be denied the benefits of, be denied access to facilities
within the Property and Developer Improvements or be subjected to discrimination under any
program or activity allowed under this Agreement except as permitted by law.
4.3.2 Anything in Section 3.3 hereof to the contrary notwithstanding, if the City believes
that a default has occurred because of a failure by Developer, its successors or assigns or any
subsequent owner or occupant (i.e. a tenant under a residential lease or a retail lease) to comply
with the terms of this Section 4.2, it may send to Developer and/or occupant a written notice of
intent to declare a default because of such failure (the "Pre -Default Notice"). The Pre -Default
Notice is not a declaration of a default hereunder. if Developer and/or occupant, after reviewing
the Pre -Default Notice (which must specify the respects in which the City contends that such a
failure should be considered a default), believes that such a failure is not a default under this
Sectign 4.1 Developer and/or occupant, must within ten (10) days of receipt of such Pre -Default
Notice, advise the City of such determination (which must specify the respects in which Developer
Page 12 of 24
CFN: 20200456743 BOOK 32056 PAGE 4037
and/or occupant contends that such a failure should not be considered a default under this Section
4_22. If the City is not satisfied with the response, then the City may declare an Event of Default
under this Agreement.
ARTICLE V. SIGNS
Section 5.5 Re tion. All Project signs must comply with the requirements of
applicable federal, state, or local rules, orders, regulations, laws, statutes, or ordinances.
ARTICLE VI. PLAZ
Section 6. Ev_ents in and Around the Plaza, From time to time, the Developer may
sponsor or similarly partner with organizations to hold temporary events in and around the Plaza.
In advance of a temporary event, the Developer must submit an application to the City consistent
with the requirements contained_ in the City's LDC and Code of Ordinances to obtain the necessary
permits and approvals.
ARTICLE VII. WSCELLANEQUS PROVISIONS
Section 7.1 No PaMership or Joint Venture, It is mutually understood and agreed that
nothing contained in this Agreement is intended nor may it be construed in any manner or under
any circumstances whatsoever as creating or establishing the relationship of co-partners, or
creating or establishing the relationship of a joint venture between the City and Developer, or as
constituting Developer as the agent or representative of the City for any purpose or in any manner
whatsoever.
Section 72 gecordin& Documentary S� This Agreement may be recorded by
either party among the Land Records of Miami -Dade County, State of Florida, and the cost of any
such recordation must be paid in full by Developer.
Section 7.3 Florida W Local Laws Prevail. This Agreement is governed by the laws
of the State of Florida. This Agreement is subject to and must comply with the Charter of the City
of South Miami as the same is in existence as of the execution of this Agreement and the ordinances
of the City of South Miami; provided, however, future ordinances of the City will not affect the
terms and provisions of this Agreement (i) unless uniformly applicable to property similarly
situated with the Property and Developer Improvements; provided, however, to the extent
Developer would otherwise be grandfathered or not subject to such ordinances if this Agreement
did not exist, Developer will not be subject to such ordinances or (ii) if the same impairs the rights
of Developer or the obligations of the City hereunder. Subject to the foregoing, any conflicts
between this Agreement and the aforementioned Charter and ordinances will be resolved in favor
of the latter. if any tern, covenant, or condition of this Agreement or the application thereof to
any person or circumstances will to any extent, be illegal, invalid, or unenforceable because of
present or future laws or any rule or regulation of any governmental body or entity or becomes
unenforceable because of judicial construction, the remaining terms, covenants and conditions of
this Agreement, or application of such term, covenant or condition to persons or circumstances
other than those as to which it is held invalid or unenforceable, will not be affected thereby and
each term, covenant, or condition of this Agreement will be valid and be enforced to the fullest
extent permitted by law.
Page 13 of 24
CFN: 20200456743 BOOK 32056 PAGE 4038
Section 7A Cotlicts ofInterest: Cill ftresentatives Not Individually Liable. No
member, official, representative, or employee of the City or the City Manager may have any
personal interest, direct or indirect, in this Agreement, nor may any such member, official,
representative or employee participate in any decision relating to this Agreement which affects his
or her personal interest or the interest of any corporation, partnership or association in which he or
she is, directly or indirectly, interested. No member, official, elected representative or employee
of the City or the City Manager may be petsorially liable to Developer or any successor in interest
in the event of any default or breach by the City or the City Manager or for any amount which may
become due to Developer or successor or on any obligations under the terms of the Agreement.
Section 7.5 Notice. All notices, demands, requests and/or other communications
required under this Agreement must be given in writing and may be delivered by three types of
physical delivery, i. e., (i) hand delivery, with a receipt signed by the party receiving such
delivery, (ii) a nationally recognized overnight delivery service providing delivery confirmations,
or (iii) certified mail, postage prepaid, return receipt requested; or in lieu of physical delivery it
may be delivered by Electronic Communication. Notice will be deemed to have been given upon
receipt or refusal of delivery or the failure of delivery due to the receiving party no longer
occupying or maintaining both the physical and Electronic Communication address provided in
this Section. All notices, demands, requests and other communications required under this
Agreement using Electronic Communication must be followed up by physical delivery if the
Electronic Communication does not provide a receipt for delivery. It is the duty of the parties to
advise each other of any change of address. Any party may designate a change of address by
written notice to the other party, received by such other party at least ten (10) days before the
change of address is to become effective.
7.5.1 Notice to Developer, Notice or communication to Developer under this Agreement
must be sent to:
5850 S.W. 73 Street LLC
133 Sevilla Avenue
Coral Gable, Florida 33134
Attention: Catherine H. Lorie, Manager & Registered Agent
Courtesy Email Service:
lork@apachccap.com
bdill@hcapfl.com
smedina _ capfl.com
With a copy to:
Shubin & Bass, P.A.
46 SW 1st Street, Third Floor
Miami, Florida 33130
Attention: Jeffrey S. Bass, Esq.
Courtesy Email Service To:
jbass@shubinbass.com
Page 14 of 24
CFN: 20200456743 BOOK 32056 PAGE 4039
evaughanfthuYnbass.com
eservic shub' ass.com
7.5.2 Notio to City. In the case of a notice or communication to the City under this
Agreement must be sent to:
City of South Miami
6130 Sunset Drive
South Miami, Florida 33143
Attention: City Manager
With a copy to:
City Attorney
6130 Sunset Drive
South Miami, Florida 33143
Attention: City Attorney
and
City Clerk
6130 Sunset Drive
South Miami, Florida 33143
Attention: City Clerk
Section 7.6 Titles of Articles and Sections. Any titles of the several parts, Articles and
Sections of this Agreement are inserted for convenience of reference only and will be disregarded
in construing or interpreting any of its provisions.
Section 7.7 counterparts. This Agreement may be executed in counterparts, each of
which are deemed an original, and such counterparts will be constitute as one and the same
instrument. This Agreement only becomes effective upon execution and delivery of this
Agreement by the parties hereto.
Section 7.8 Successors and Assion ,; Except to the extent limited elsewhere in this
Agreement, all of the covenants, conditions and obligations contained in this Agreement run with
the land and are binding upon and inure to the benefit of the respective successors and assigns of
the City and the Developer.
Section 7.9 Entire AareemM This Agreement and its Exhibits constitute the sole and
only agreement of the parties hereto with respect to the subject matter hereof and correctly set forth
the rights, duties, and obligations of each to the other as of its date. Any prior agreements,
promises, negotiations, or representations not expressly set forth in this Agreement are of no force
or effect and are merged into this Agreement.
Page 15 of 24
CFN: 20200456743 BOOK 32056 PAGE 4040
Section 7.10 Amgndments. No amendments to this Agreement are binding on either party
unless in writing and signed by both parties. Although this Agreement runs with the land,
amendments, modifications or releases of this Agreement are only binding if they are by mutual
written agreement between: (a) the City Commission or its successors and assigns (which must be
a governmental entity); and (b) Developer or its successors and assigns that are expressly designated
in writing as receiving the rights and obligations of Developer under this Agreement res
Assigan (i.e., even if the Property is subdivided and more than one (1) owner exists for the
Property, then amendments to this Agreement only need to be executed by the City and Developer
or its Express Assigns); provided, however, that in the event that any amendment, modification or
release of this Agreement materially affects the rights of an owner of a portion of the Property, then
any amendment to this Agreement must also require the consent of such property owner. In the
event of a modification of this Agreement or a designation of an Express Assign, a written
instrument must be duly executed, acknowledged, and recorded in the Public Records of Miami -
Dade County, Florida. The parties recognize that the development and operation of the Property
and the Developer Improvements may from time to time require the confirmation, clarification,
amplification, or elaboration of this Agreement, in order to deal adequately with circumstances
which may not now be foreseen or anticipated by the parties. The City Commission and Developer
reserve unto themselves and their Express Assigns the right to enter into such interpretive,
implementing or confirmatory written agreements from time to time as they mutually deem
necessary or desirable, in their sole discretion, for any such purpose without obtaining the consent
or approval of any person or entity. If any portion of the Property has been submitted to the
condominium form of ownership, and an amendment, modification or release of this Agreement
requires the consent of the owner of such portion of the Property as provided above, then only the
condominium association thereof will be required to execute the instrument as to that portion of
the Property (in lieu and on behalf of the condominium unit owners thereof).
Section 7.11 io d vals th All requests for action or
approvals by the City must be delivered to the City Manager, who is the only party within the City,
including the City Commission, with the authority to act or approve the matter on behalf of the
City. Without limiting the generality of the foregoing or the general authority of the City Manager,
the City Manager has the authority to grant extensions of time for performance by Developer for
up to ninety (90) days (extensions of time in excess of ninety (90) days must be approved by the
City Commission). if the City Manager's office is vacant or if the City Manager does not have
the full authority to act or approve matters required of the City pursuant to this Agreement, then
the City Commission will, promptly upon written request by the Developer, designate such other
officer or department as may be appropriate to perform the City's obligations. Unless otherwise
specified to the contrary herein, all decisions, approvals and actions required of the City hereunder
must be decided, given or taken within sixty (60) consecutive days after the receipt of written
notice requesting some. Nothing contained herein or in this Agreement authorizes the City
Manager to amend any of the terms of this Agreement.
Section 7.12 Exculpatiou. Notwithstanding any provision contained in this Agreement
to the contrary, it is specifically agreed and understood that there is no personal liability on the
part of any manager, member in the Developer (provided such member is acting within the
limitations placed on same by Florida law or has not assumed in writing any greater liability with
respect to this Agreement), an equity interest holder of a member in the Developer or, if the
Developer is a corporation, of any officer, director or stockholder of the corporate Developer or,
Page 16 of 24
CFN: 20200456743 BOOK 32056 PAGE 4041
If the Developer is a partnership, any limited partner of the Developer, with respect to the
performance of any of the obligations, terms, covenants and conditions of this Agreement.
Section 7.13 CaRgLol. The article and section headings and captions of this Agreement
and the table of contents preceding this Agreement are for convenience and reference only and
in no way define, limit, describe the scope or intent of this Agreement or any part thereof, or in
any way affect this Agreement or any part thereof.
Section 7.14. Holidays, It is hereby agreed and declared that whenever a notice or
performance under the terms of this Agreement is to be made or given on a Saturday or Sunday or
on a legal holiday observed in the City, it will be postponed to the next following business day,
not a Saturday, Sunday or legal holiday.
Section 7.15. Developer as Independent Contractor. Nothing contained in this
Agreement may be construed or deemed to name, designate, or cause (either directly or
implicitly) the Developer, or any contractor of the Developer to be an agent of or in partnership
with the* City.
Section 7.16. No Li bility for Apptrovals aid Inspections. Except as may be otherwise
expressly provided herein, no approval to be made by the City of the Project site or the Project
under this Agreement, may render the City liable for its failure to discover any defects or
nonconformance with any federal, state or local statute, regulation, ordinance or code.
Section 7.17. HaLon. radon is a naturally occurring radioactive gas that, when it has
accumulated in a building in sufficient quantities, may present health risks to persons who are
exposed to it overtime. Levels of radon that exceed federal and state guidelines have been found
in buildings in Florida. Additional information regarding radon and radon testing may be obtained
from the county public health unit for Dade County.
Section 7.19. Developer Entity. On the date of execution hereof, the Developer is a
Florida limited liability company. In the event that at any time during the term of this Agreement
and any extensions and renewals thereof, the Developer is a corporation or an entity other than a
Florida limited liability company, then any references herein to member, membership interest,
manager and the like which are applicable to a Florida limited liability company will mean and be
changed to the equivalent designation of such term which is appropriate to the nature of the new
Developer entity.
Section 7.19. gooRuntion: ExRrAited Permitting: and Time is of the Essence. The Parties
agree to cooperate with each other to the full extent practicable pursuant to the terms and conditions
of this Agreement. The Parties agree that time is of the essence in all aspects of their respective
and mutual responsibilities pursuant to this Agreement. The City will use its best efforts to
expedite the permitting review and approval process in an effort to assist the Developer in meeting
its demolition, development, and construction completion schedules. The City will accommodate
requests from the Developer's agents, representatives, general contractor(s), and subcontractors
for simultaneous review of multiple permitting packages, such as those for site work and
foundations, and building shell, core, and interiors. Notwithstanding the foregoing, the City is not
obligated to issue development permits to the extent the Developer does not comply with the
Page 17 of 24
CFN: 20200456743 BOOK 32056 PAGE 4042
applicable requirements of the City Zoning Code, the Project's zoning approvals, the
Comprehensive Plan, this Agreement, applicable building codes, or any other applicable laws,
rules, orders, or regulations. For clarity, the Parties recognize that as of the date of this Agreement
the United States and the State of Florida are facing the COVID-19 pandemic crisis which has
materially altered the way business can be conducted and the Parties' respective pledges of
cooperation include such cooperation as is reasonable and practicable given the COVID-19
pandemic. The failure of the Agreement to address a permit, condition, term, or restriction shall
not relieve Developer of the necessity of complying with the law governing said permitting
requirements, conditions, term, or restriction.
Section 7.20. . grm. The term of this Agreement is thirty (30) years following the
issuance of the Certificate of Occupancy of the residential portion of the Project or the Certificate
of Use of the Commercial portion of the project, whichever occurs last.
Section 7.21. Sta utoa Compliance. The Development Agreement, as well as all
amendments and revocations thereto, must comply with §§ 163.3220-163.3243, Fla. Stat., as
amended by the Florida Legislature,
Section 7.22. Scveratzft. If this Agreement contains any unlawful provisions not an
essential part of this Agreement and which do not appear to have a controlling or material
inducement to the making thereof, such provisions will not have any effect and will be stricken
from this Agreement without affecting the binding force of the remainder. In the event any
provision of this Agreement is capable of more than one interpretation, one which would render
the provision invalid and one which would render the provision valid, the provision will be
interpreted so as to render it valid.
ISIGVATURE PAGES TO FOLLO01
Page 19 of 24
Signature Qr'Wiitness # 1
-,i1.
Prc name
Sia nture of Witness n2
AlAe- 'Q, K&MC
Print or type name
STATE OF FLORIDA
COUNTY OF M La_inn - I .
CFN: 20200456743 BOOK 32056 PAGE 4043
DEVELOPER: 5850 S.W. 73 STRFL'+'r
LLC, a Florida limited liability company
f Si,61tt11ALUM j t
Print or tyre name
The foregoing iristfument was Acknowledged before me this day of
202,� by W ikc..t i x1-
• of CpYMl�:c� 1t les% ��-. - .who is/a:v'p •rsan::}lv
known to me or who has/have produced as
identircation and who did not (did) take nil oath. _
rr% ; Signature of Notary
8oltdad T#nv MW KotfflY m V.,I AN N YS
(NOTARY SEAL)
Print or type name
Vase 19 of 24
ATTESTED:
By: K) _
Nke A. P e, CMC
City Clerk
Read and Approved as to Corm, Language,
Legality and,Fxecution TltiriL-f:
-••1 ram.--. -Y ash.
By: _ � : I J, fr
City A ttori fey
CFN: 20200456743 BOOK 32056 PAGE 4044
CITY OF SOUTH MIAMt
By:..
Shari Kamali
City Manager
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
COL
The foregoing instrument was acknowledged before: me this �da�y of 11-2,J.
2� by ' , City Manager, who is personally known to me and ack owledge
executing the same 11reely and voluntarily tinder authority vested in herby �e City of South Miami.
yzv
tgnattire of Nota
(NOTARY SEAL e
Print or type name
WCOMMISSIOUGGlialsa
ExPiR6s:october'ie,2�tf
Bond�e7kvNo�rlbbialkden�t�n
Pagc 20 of 24
CFN: 20200456743 BOOK 32056 PAGE 4045
LEGAL DESCRUMON
The land referred to herein below is situated in the County of Miami -Dade, State of Florida, and
is described as follows:
Lots 23 through 32, inclusive, LESS the North 10 feet of Lot 23; the West 5 feet of Lots 23, 24,
25,26 and 27; the East 5 feet of Lots 28,29 and 30; the East 5 feet of Lots 31 and 32 and the North
10 feet of Lot 32, W.A. LARKIN'S SUBDIVISION according to the Plat thereof, as recorded in
Plat Book 3, Page 198, of the Public Records of Miami -Dade County, Florida.
Page 2l or24
CFN: 20200456743 BOOK 32056 PAGE 4046
,)(MI r 4B1"
4M&MON050-20-15M
Page 22 of 24
CFN: 20200456743 BOOK 32056 PAGE 4047
RE90WflON NO.
A Resotutlon pursuantto Section 2049 and other provisions of the Clty of South
Miami land Development Code approving a law -male development an a 1-9-
we pngw ty known as the WhuWWe s#te located at SBSR SW 73rd Street and
73U SW Soh Avenue and as legally descried herein.
WKEREAS, the applicant, SM SW 73 Street LLC, submitted an application requesting a
Special Eneption approval for a Large -Scale Development for a mbmWse building located at
S850SW 731d Streetand 7331 SW 59* Avenue; and
WRLUM, the apphont has submitted concurrent requests to change the Future Land
Use Map deftnatton of the site from Mbxed Use Commercial/Restdemial to Transit Oriented
Development District and to change the zoning irons Neibbarhood Retail (UR) to Transit
Oriented Denlopment Qistrlct Mboed Use Market (TODO (MU-M)); and
WHEREAS, the site condsts of L9 acres and the proposed development will provide 248
residential units and approxin dely 36AS gross square feet of grocery store space; and
W'RERFAS, meant to Land Development Code (LDQ Section 20-8A Spatial exoaptions,
any site that is to excess of 410 QC= square feet or any development in excess of four (4) stories,
shall be designated as a Large -State Development and reviewed by the Pla nrft Board and shall
requIre approval by the City Commission; and
WHEREAS, at its May a 2W rneetin$ the Planning Board held a public hearing on the
application, considered each of the requirements and conditions for Large -Scale Development
listed to Section 20-U of the LK and voted Nx (6) to one (1) to recommend approval of the
requmcted SpwW Exception; and
WNLViAS, Section 204149 IQ requires that all uses In a large-scale developnumtt must
comply with the following general requirements and any other requirements that the City
Commission may consider appropriate and necessary.
L All such uses shall comply with all requirements established in the appropriate zoning
use dlstritt* unless additional or more restrictive requirements are set forth below or by
the City Commission.
2. A8 such uses must be of a compatible and complementary nature with any existing
or panned surrounding uses.
3. The City Commission shall determine the overall compatibility of the development
with the eWsdng or planned surrouri tng um, -
and
Page 1 of 7
CFN: 20200456743 BOOK 32066 PAGE 4048
Rea. No. 050--20-15490
WKEitINK Sa Mon 2049 (C) requires that the development will:
L Not adversek affect the health or safety of persons residing or working in the
vicinity of the proposed use.-
2. Not be detrbnental to the public welfare, property, or improvements In the
nelAborhood; and
3. Complies with all other applicable Code provisions;
and
WHER M, the Mayorand City Commission ofthe City of South Miami, having considered
each of the Special Exception requirements and conditions and having found that those
conditions have been met, deft to approve the application for the Special Exceptlon with
conditions.
NOW0 RF, BE IT ROUVED BYTHE MAYORAWD CITY COMMWAOM OFTHE CRY
OF SO1sM ll L%% FLONDA:
The recitals set forth in this resolution are true and they are supported by
competent substantlal evidence and they are incorporated into this resolution by reterom as If
set forth to fun herein.
Sao The application submitted by SOSO SW 73 Street LLB requesting a Special
Oooeption for a Large Scale development for a mixed -use building consisting of a grocery store
and residential uses within the TODD (MU-M) toning duct located at S850 SW 73 Street and
7331 SW 39 Avenue, South Miami Florid% complies with the requirements of 20-&9 (C) and (0)
and Is hereby approved provided the Applicant has complied with conditions t and 2 below
within 30 days of the rendition date of this molution:
L AS documents submitted with this application are to be made part of the record.
2. Execution of a daveftpment agreement and oavenants in accordance with Section 20-
8.qM of the city of South Mlemi Land Development Code and which must Indude the
following conditions and requlrements:
�1 MOM
9. The proposed development will be substantially built in accordance with the
doomumits submitted including: getter of intent; Exhibit A (April 20, 2020);
Planning Board Submittal (04/20/2MCy, toading Management Plan (April 21,
2020); and Traffic Study (April 2020j Plans submitted entitled `mouth NUami
Market", consisting of a total of 69 sheets: Architectural Plans prepared by Corwil
Architects (43 sheets); Landscape Plans prepared by Geomantle Designs, Inc. (13
sheetsy; and CIO Plans prepared by Klrnley Mom (13 sheets). The survey was
prepared by Narcisco J. Ramirez and consists of one sheet dated April 2, 201L in
additbn, the Bring amendments to these plans: Ground floor site plan (updated
SiZ612Q2Oj(r+eReaing that a column has been removed fiom the loading zone to
Page 2 of 7
CFN: 20200456743 BOOK 32056 PAGE 4049
R"• NO. 050-•30-15490
acmmnwdate two WB-50 tncdcs on-AeL; L=dlq Area Management Plan 8 t 3
(updated 6/1/20201(reft sting the rentaM of the column noted above to allow for two
WB-50 trucks on�ftk SON Market WB50 MamuverabMly (4 sheets, updated
SJ26/2020)(showtng the maneuverali ty%access for both WB-50s into the WOO amok
tardscaplag Sheets L-3, L-40 L-3, 47, L-9, and L-12 (ail updated 6J3/2OmMOtowing the
replacement of bromeliads with soft tip agm and the Inclusion of the DeepRoot system
as requested at First Rea ft); the South Miami Market Piannbtg Board Presentation May
120 2020 (shown by the Ap ftnt at the May 120 2020 Planning Board hearing and May
190, 2020 City Commbdon Ida b*,, and the South Miami Market City Qmndsdan
Pmmte ton Jute 2, 2020 (rdtown by the Applicant at the June 2, 2020 City Commission
hawfng�
b. AD Streetscape Improvements required under any approvals must be completed
prior to the first CerdIcate of Occupancy unless such deadline is extended by the
mil Manager.
c. improvements to the Public Rigrht-of-Way must first be approved by the City of
South Miami mks another federal state, or local agency requires prior approval.
d. An impact fees west be paid by the Appft t prior to issuance of buNding permit.
e. The Applicant must provide a dedwWon4, algned by the owner under penalties of
penury and in ac=*nce wkb 192.525, Fla Slat., attesting to the fad that the
pro a is in compliance With the ale Level of Services requirements prior
to the issumce of building permit to the property. If any conamency approvals
expire a re -review, must be obtained by the owner from the appropriate agr mV
and a new declaration must be delivered to the City Manager within 30 days of
the expiration date.
f. A M W Con MNW Analysts wlS be prepared by the City if there are any Changes
that Mcrease densitles, intensities or population and if any additional tees are
charged they meet be paid for by the owner.
S. FfnWnd floor elevations must be wed and approved for consistency with
FEMA requirements and the CtWs National Insurance Flood Program ordinance
prior to building permit approval.
h. The Applicant must be in compliance with applicable conditions and requirements
by waml-Dade County Public Works Department, Fire Rescue Department,
Qepastrnent of Regulatory and Economks Resources • DERM (MR), and Miami -
Daft County Water and Sewer Department, if any.
1. A secured bicycle ram with amenities will be made available to the commerdal
component of the development if the owner desires to use the bicycle bonus
provision to add a floor. -
�. That the Applicant covenant or provide a declaration of restrictions, approved by
the City Attorney as to form and substance, as proffered by the Applicant, that
dedicates a minimum of 20,000 square feet of the retail area as grocery or market
space for 3o years.
Page 3 of 7
CFN: 20200456743 BOOK 32056 PAGE 4050
Res, No, OSO-20-1S490
k. Construction must only take place Monday through Saturday during the hours of
7:30 am. and 5d00 pin. dean -up type acdOes that do not Involve mechankal
equipment wm be mowed on Sundays between 9:00 arm. and 5:00 p.m.
i. The Applicant must meet all of the nN mum requirements of the City
Code, meters 18 and 24 of the Miami -Dade County Code and speciftWly
• eormpiywith all condhlons Imposed by MlarnWade County Department of
Regulatory and Economic Resources - DERM (DRER), If any.
IL Pursuant to Sec. 2" S, as may be amended, the App3cant must preserve
existing trees (Including native trees) during the development of the
project, wherever per. If the trees must be mnoved, the Applicant
crust mitigate the impact In accordance with City requirements. If the
relocated trees do not survive, the Applicant must replace the trees In
compliamm with City requirements.
IL The Landscape Plan (feet L-1) notes that the Appkant proposes to
donate fifteen (15) odsbg Saba) Palms to the Cl* Should the City not
accept this donation the Applicant must mitigate these Palms as required
by the City Landscape Code.
Iv. The property must be landscaped to accordance with the landscape plan,
included with the sltQ plan submittal.
M.
L The project Must be In compliance with the requirements of the Miami -
Dade County Water -Use EfBclency Standards Manual, effective January
2009, as maybe amended from time to time.
L All on -site storm water dralnege systems shall be maintained in woridag
order. The "a storm water drainage system shah be designed and
maintained to store the Projeds storm water runoff on -site as required
by applicable storm event design requirements of DIERM or SPWMD
whichever controls.. Paoing is not allowed on top of any drainage Inlet or
drainage manhole.
i. A Constructlon and Maintenance of Traffic (MOT} Plan must be provided
by the AppEtsnt to the Butldtng and Public Works Departirmts for
approval prior to start of construction. Access points by construction
vehldes must be provided within the MOT. All construction vehicles must
use SW SSW Court; SW 73rd Street, or SW 740 Street unless otherwise
approved by the Department.
L The Applicant must provide for the reconstruction of the adjoining
roadways, sidewalks and drainageto their conditions pdwto consh=tlon,
or better, and to prwA& a performance bond equal to 1M of the total
cost of reconstruction.
HL The Applicant must provide a Construction Air Quality Management Plan
to the Department prior to the start of construction.
Page4of7
CFN: 20200456743 BOOK 32056 PAGE 4051
ReBz_ H9. 050-20-15490
Iv. A Constructlon, Demolition and Materials Management Plan (CDMMP)
must be submitted by the Applicant at tkne of building permit.
o.
hMbhMre-
L Substantial compliance with the approved plans Including design,
alm and der oa ,lefts.
p• ApplkaWs proffered refinements and comet tn= tx
1. The 73rd Street street. The Applicant shall perform streetscape
Improvements on 73rd street between 58th Court and 59th Avenue (the
`Streetscape Improvements"). The 73rd Streetscape Improvements
include sidewalk paver improvements, street pavement Improvements,
and crosswalk irnpravensents. As part of the Streetscape Improvements
the Applicant shall submit roadway geometry alignment design plans for
review and approval by the City Manager or City Manager designee to
meet the Miami -Dade County public worms minimum design standard for
73rd street, 59th Avenue and 58th Court Intersections, and owstreet
parws
IL Supplemental Traffic Counting. The Applicant shall perform traffic counts
on With Avenue between 74th Street and 80th Street and 59th Court
between 76th Street and 78th Street within IS months of final Certificate
Of pewpancy and provide those results to the City Manager.
Si. Mobility improvement Payment The Applicant shall provide the City with
a pedestrian mollity lmprovement payment to the Ckys, general fund in
the amount of $250,000 payable at time of budding permit for the City to
use in Its discretion to fund publk realm improvements (I'Mobility
Improvement Payment" j. If, following completion of the construction of
the Project approved herein, the Miami -Dade County Property Appraiser
rProperty AppraiW) assesses the value of the lands together with the
oampteted building at less than $70 million In the first year following
Issuance of the final Certificate of Occupancy, then the Applicant shall
provide an additional $250AW payment to the QW:s general fund for the
City to use for the same purposes described in the Immediately preceding
sentence (Second Mobility improvement Payment") to be paid within 180
days of the Applicant's receipt of notice of the Property Appraiser's post
completion assessed property valuations. Conversely, If the Property
Appraiser assesses the value of the lands and the completed building at
$70 mftm or more In the first year following Issuance of the Certificate of
Occupancy, then the Second Mobility improvement Payment shall not be
due.
Iv. Bird-Frlendly Design. The Applicant shall Incorporate bird -friendly design
principles into its use and selection of glazing products and lighting design
for the development
Page 5 of 7
CFN: 20200456743 BOOK 32056 PAGE 4052
Res. No. 050-20-15490
v. Cistern. The Apphrant shall braorpomte a cistem to be used where feasible
for the ddp irrigation of fartdscaaing planted on or contiguous to the site.
It Is expresy recognized that dripdrrlation may not be sufficient for all of
the projeces irrigation needs.
vL Solar. The City r+etopizes that limited roof area exists for the Applicant to
Incorporate solar panels and that the Applicant is eonstratned in its ability
to generate a substantial amount of power through solar. Nevertheless,
the ApplICant agrees to incorporate solar panel's where feasible, with the
location ofthe panels to betheApplicanles sole discretlon,toprovide some
amount of solar power to a building feature or component
vll. The Applicant shall abide by the Hours of Operation, Monitoring ingress
and Egw, and Loading Dock Manager sections of the SvMI Market
Loading Area Management Plan dated April 21, 2020 prepared by David
Mummer & Associates and submitted by the Applicant!.
WI, The deWaq trucks serving the Project shall not enter upon, parr turn or
otherwise enterthe parking lot orother portions ofthe property bentifRed
as S900 S.W. 73rd Street, South Miami, Florida 33143 and Folio No. 09-
40364294301a
bL The doors tothe loading area garage ofthe ProjectfacingSW 59th Avenue
shall be dosed except during active loading and unloading operations.
n ILGonstn kvam To expedite the construction of the grocery store, the
Commission hereby authorises the City Massager or designee to expand corrstntctlon hours for the
foundation pours or such other aittcal path oanuucdon activities necessary to ensure the fastest
possible deth y ofthe completed gtrooerystore space.
MgM& Oonectlens. amf Ormtng lasofte or technW scrivener -We comYtions may be
nub by the City Attorney for any confonrdng arnendments to be incorporated into the final
resolution forsigrratum
Seversbt*. if any section clause, sentence, or phrase of this resolution is for any
reason held invalid or unconstitutional by a court of competent jurisdiction, the holding will not affect
the validity of the rernalning portions of this resolution.
This rewhWan WU become effective upon enactment of the
concurrent applications submitted by S650 SW 73 Street LLC to amend the properWs designation
on the ClWs Future Land Use Map from Mixed Use Commerdal%Residential to Transit Oriented
Development alstrfct end the City's Zoning Map from Neighborhood Retail (NR) to Transit Oriented
Development District Mixed Use Market (TODD (MU-M)).
PASSED AND ADOPTED this 2� day of AM 2020.
Page 6 of 7
Res. No. 050-20-15490
ATfIST:
0111 &lc\ p
CfiYC ERK
6-
REPJ) AND APPROVED AS TO FORM,
LANGUAGE, LEGALITY AND—
EXE v EREOF
1 - P
ORNEY
CFN: 20200456743 BOOK 32056 PAGE 4053
APPROVED:
,
MAYQR
COMMiSMON VOTE:
Mayor Philips:'
Vke Mayor Welsh:
Commissioner Gli:
Commissioner Harris:
Commissioner Liebman:
Page 7 of 7
5-0
Yea
Yea
Yea
Yea
Yea
CFN: 20200456743 BOOK 32056 PAGE 4054
EXHIBIT "Cl"
ANTICIPATED DEVELOPMENT SCHEDULE
Initiation of Site Plan review process before the ERPB.......................................8 to 10 MONTHS
The Developer anticipates initiating the Site Plan review process before
the ERPB within 8 to jQ months of the execution of his Agreement.
Pursuant to Section 20-8 9(b)(1), the Site Plan review process for the
Large -Scale development shall be initiated before the ERPB within one
(1) year of the City Commission's June Z 2020 approval of the Special
Exception (the "Site Plan Review Initiation Period"). The Site Plan
Review Initiation Period may be extended in accordance with Section
20,8.9(B)(1), LDR.
Site Plan review and approval process before the ERPB..................................... j to 12 MONTHS
The Developer anticipates the Site Plan review and approval process
before the ERPB to take ¢ to 12 months from initiation.
Submittal of Building Permit Plans......................................................................8 to 10 MONTHS
The Developer anticipates submitting building permit plans -4 to 19
months otter the rendition of the development order granting final Sile
Plan approval by the ERPB. A legal, administrative, or judicial
challenge to the development order that approves the Site Plan may result
in the Developer opting to delay submission of a demolition permit until
the conclusion of such challenge, Including all appeals
Approval of Building Permit Plans / Issuance of Building Permits .......................2 to f MONTHS
The Developer anticipates the approval process for the issuance of the
building permits (including Issuance of foundation permit, site work
permit, or partial permit) to take ;,to 6 months
Commencement of Construction..........................................................................8 to LO MONTHS
The Developer anticipates commencing construction within 8 to ,LQ
months of the issuance of the building permits
Complete Project Buildout.................................................................................24 to !a MONTHS
The Developer anticipates completing the buildout of the Project within
,4 to ,Q months of the commencement of construction
Page 23 of 24
CFN: 20200456743 BOOK 32056 PAGE 4055
BOUNDARM OF THE PUBLIC PLAZA
Page 24 of 24
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