Res No 001-24-16106RESOLUTION NO. 001-24-16106
A RESOLUTION OF THE CITY COMMISSION OF THE
CITY OF SOUTH MIAMI, APPROVING AN AGREEMENT
WITH AVALON SOMI, LLC REGARDING ENHANCED
RIGHT OF WAY IMPROVEMENTS WITHIN 73RD STREET
BETWEEN SW 59m AVENUE AND SW 58TH COURT;
AUTHORIZING THE CITY MANAGER TO NEGOTIATE
AND EXECUTE THE AGREEMENT; PROVIDING FOR
IMPLEMENTATION, CORRECTIONS, AND AN
EFFECTIVE DATE.
WHEREAS, in connection with its development of the property located at 7331 SW 59th
Avenue/5850 SW 73 Street ("Property"), Avalon Somi, LLC (the "Developer"), entered into a
Second Amended and Restated Development Agreement (the "Development Agreement")
recorded in Official Records Book 33837, Page 419, of the Public Records of Miami-Dade County,
Florida, to govern the development of the Property; and
WHEREAS, during the negotiation of the Development Agreement, the City of South
Miami (''City") and the Developer discussed certain potential additional streetscape improvements
within SW 73 rd Street, between SW 59th Avenue and SW 58th Court (the "Potential Streetscape
Improvement Area''); and
WHEREAS, the contemplated additional streetscape improvements include but are not
limited to sidewalk, curb, gutter, removal of parking, and undergrounding utility lines on the north
portion of the Potential Streetscape Improvement Area, and adding one or more crosswalks across
SW 73rd Street within the Potential Streetscape Improvement Area (the "Additional Streetscape
Improvements"); and
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Res. No. 001-24-16106
WHEREAS, the City and the Developer wish to enter into an agreement to address the
process for finalizing the scope of the Additional S treetscape Improvements and their construction,
including the costs therefor; and
WHEREAS, the City Commission wishes to approve the fonn of the Agreement attached
hereto as Exhibit "A", and authorize the City Manager to further negotiate and execute such
Agreement, subject to the approval of the City Attorney as to fonn and legal sufficiency; and
WHEREAS, The City Commission finds that this Resolution is in the best interest and
welfare of the City.
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA, AS FOLLOWS:
Section 1. Recitals. The above-stated recitals are true and correct and are incorporated
herein by this reference.
Section 2. Approval of Ag .. eement. The City Commission hereby approves the fo1m
of the Agreement attached hereto as Exhibit "A''.
Section 3. Authorization to Negotiate and Execute Agreement. The City Manager
is authorized to further negotiate and execute such Agreement substantially in the form attached
hereto as Exhibit "A,'' subject to the approval as to form and legal sufficiency by the City Attorney.
Section 4. Implementation. The City Manager is hereby authorized to take all
actions necessary to implement this Resolution.
Page 2 of3
Res. No. 001-24-16106
Section 5. Corrections. Conforming language or technical scrivener-type corrections
may b e made by the C ity Attorney for any co nf01111ing amendments to be incorporated into the
final reso lution for signature.
Section 6. Effective Date. This Resolution shall become effective immediately upon
adoption .
PASSED AND ADOPTED thi s 16th day of January, 2024.
ATTEST:
READ AND APPROVED AS TO FORM,
LANGUAGE, LEGALITY AND
EXECUTION THEREOF
RMAN, P .L.
CITY ATTORNEY
APPROVED:
COMMISSION VOTE:
Mayor Fernandez:
Vice Mayor Bonich:
Commissioner Calle:
5-0
Yea
Yea
Yea
Commissioner Liebman: Yea
Commission er Corey: Yea
Page 3 o f3
Agenda Item No:2.
City Commission Agenda Item Report
Meeting Date: January 16, 2024
Submitted by: Samantha Fraga-Lopez
Submitting Department: City Manager
Item Type: Resolution
Agenda Section:
Subject:
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF SOUTH MIAMI, APPROVING AN
AGREEMENT WITH AVALON SOMI, LLC REGARDING ENHANCED RIGHT OF WAY IMPROVEMENTS
WITHIN 73RD STREET BETWEEN SW 59TH AVENUE AND SW 58TH COURT; AUTHORIZING THE CITY
MANAGER TO NEGOTIATE AND EXECUTE THE AGREEMENT; PROVIDING FOR IMPLEMENTATION,
CORRECTIONS, AND AN EFFECTIVE DATE. 3/5 (CITY MANAGER)
Suggested Action:
Attachments:
Memo-_Avalon_ROW_Agreement (2).docx
47U948702-Resolution Approving Form of Avalon Right of Way Agreement v2.DOCX
SoMi_Add'l_Streetscape_SideAgreement Jan 10_v2ev.docx
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CITY OF SOUTH MIAMI
OFFICE OF THE CITY MANAGER
INTER-OFFICE MEMORANDUM
TO: The Honorable Mayor, Vice Mayor, and Members of the City Commission
FROM:Genaro “Chip” Iglesias,City Manager
DATE:January 16, 2024
SUBJECT:Avalon Bay Right-of-Way Agreement
RECOMMENDATION: Approve the Right-of-Way Agreement (the Agreement)with Avalon Bay and
authorize the City Manager to further negotiate and execute the
agreement.
BACKGROUND: In connection with its development of the property located at 7331 SW 59th
Avenue/5850 SW 73 Street, Avalon Somi, LLC (the “Developer”), entered
into a Development Agreement with the City, which governs the
development of the Property. During the negotiation of the Development
Agreement the City and the Developer discussed certain potential
additional streetscape improvements within SW 73rd Street, between SW
59th Avenue and SW 58th Court.
The contemplated additional streetscape improvements include but are
not limited to sidewalk, curb, gutter, removal of parking, and
undergrounding utility lines on the north portion of the Potential
Streetscape Improvement Area and adding one or more crosswalks across
SW 73rd Street within the Potential Streetscape Improvement Area.The
Agreement establishes a process outside of the Development Agreement
to explore the feasibility of the additional streetscape improvements.
FUNDING: N/A
ATTACHMENTS: Resolution
Right-of-Way Agreement
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AGREEMENT
,p,-
TH IS A GRE EMENT ("Agreem e nt") is made a nd e nte re d in to as of thi s ,1). O day of
February, 2024, by and betv,1een th e CITY OF SOUTH MIAMI, a Florida muni c ipa l corp o ration
("City") and AVALON SOMI, LLC , a Delaware limited li ab ility company ("Developer").
RECITALS:
WHEREAS , the D eve lo p e r is th e owner of t he rea l prope rty located within t he C ity which
is more pa rticularly d escrib ed in the legal descriptio n attached h ereto as Exhibit A (the
"Prope rty"); a nd
WHEREAS , o n August I 0 , 2023 , the C ity and the Devel o per entered into the Second
Amended and R estated Deve lo pment Agreement (the "Devel o pm e nt Agreement") recorded in
Officia l Record s Book 33837, Page 4 19 of the Public Record s of M iami-Dacle County, F lo rid a, to
govern th e development of the Property; and ,
WHEREAS , the Prope r ty is to b e d eveloped in s ubstanti a l conformance w ith th e plan s
e ntitled "South Miam i Market" el ate d March 22, 2023 by Corw il A rchi tects, to geth e r w ith
s uppo rtin g s ubmittal s, fil ed b y th e Develope r a nd approved by th e C ity Manager o n June 23 , 2023
as a mino r modificati o n to an approved s ite plan (the "Proj ect "); and
WHEREAS, during th e negot ia tio n o f th e Deve lopm e nt Agreem e nt th e C ity and th e
Deve loper di scussed certain potenti a l additiona l streetscape im provements w ithin SW 73 rd S treet,
between SW 59th Avenue and S W 58th Co urt, as s hown m o re particularly o n Exhibit B attached
here to (the "Potential Streetscape Impro vement A re a"); and,
WHEREAS, th e Pa rti es recogni ze th a t unkn own and co mplica tin g s ite condition s m ay
ex ist w ithin th e Po te ntial Str eetscape Improve m e nt A rea th e di scovery of wh ic h co uld re nd e r it
imposs ibl e o r commer ciall y unreasonable for the D evelo pe r to p e rform additi o nal s treetsca p e
improve m e nts within th e Potenti a l S treetscape Improvem e nt A rea; a nd ,
WHEREAS, the C ity inte nd s that th e costs associated w ith the potential additio nal
s treetscape improve m e nts s hall b e cost ne utra l to the Deve lop e r a nd , to e n s ure sam e, th e C ity
agrees th at the verifi a bl e h a rd and soft costs fo r th e p o te ntial additiona l s treetsca pe improvem e nts
shall be cr e dite d against a ll Art in Public Pl aces fees a nd contributi o ns req uir e d und e r the C ity
Cod e and o therwi se due to t he C ity pri o r to the certificate of occupa n cy p urs uant to the
D evelopme n t Agreeme n t (the "A I PP Re quire me nt"); and,
WHEREAS , the Parties w is h to e nte r into thi s A g reem e nt to establis h a process o uts id e of
the D eve lopm e nt Agreemen t to explor e th e feasibi li ty of certa in additional str eetsca pe
improve m e nts within th e Pote ntial Streetscape Improvement Area, a nd to cons tru ct certa in
s treetscape improvem e nts in th e a reas o f th e Potentia l S treetscape Improve m e nt A rea w h e re
feas ible ; and ,
NOW, THEREFORE , in co ns id eratio n of th e mutual covenants e nte re d in to betwee n the
C ity a nd Deve loper, a nd in cons id e ration of th e be ne fits to accrue to e ach, it is he reby agreed as
fo ll ows :
1. Recitals.
The above recitals are true and correct and are incorporated herein and made a part hereof.
2. Definitions.
In addition to the defined terms that appear throughout this Agreement, the following
terms shall be assigned the following meanings:
(a) "Additional Streetscape Improvements" shall refer to those improvements
proposed to Miami-Dade County and the City including, but not limited to
sidewalk, curb, gutter, removal of existing on-street parking spaces, and
landscaping on the north portion of the Potential Streetscape Improvement Area,
adding one or more crosswalks at the intersection of SW 73rd Street and SW 59th
Avenue within the Potential Streetscape Improvement Area. For clarity,
undergrounding of utility lines within the Potential Streetscape Improvement Area
("Utility Undergrounding") are not within the scope of the Additional Streetscape
Improvements.
(b) "Actual Cost oflmprovements" shall refer to the hard and soft costs associated with
the construction of the Additional Streetscape Improvements that are actually
expended.
(c) "Cost of Improvement Credit" shall refer to the Developer's credit against the
AIPP Requirement in an amount equal to all monies actually spent by the
Developer developing the plans for and/or constructing the Additional Streetscape
Improvements including but not limited to costs incurred for the associated civil
engineering, survey work, utility surveys, sub-surface exploration costs, and
similar costs. The City shall not be liable to the Developer for any costs incurred
by the Developer after the Cost of Improvements Credit is applied, or for any
monies paid by Developer in the event the Costs of Improvement Credit exceeds
the AIPP Requirement.
(d) "Estimated Cost oflmprovements" shall refer to the hard and soft costs associated
with the construction of the Additional Streetscape Improvements, as estimated by
the Developer prior to the issuance of the permit approval for the Additional
Streetscape Improvements.
3. The Process and Scope of Potential Additional Streetscape Improvements.
The City Manager and the Developer hereby establish the following process for seeking
approval of additional potential streetscape improvements within the Potential Streetscape
Improvement Area and further defining the scope of the Additional Streetscape Improvements:
(a) The Developer shall prepare civil plans for improvements to the Potential
Streetscape Improvement Area and present such plans to Miami-Dade County and
the City for permitting prior to March 31, 2024 (the "Permit Application
Submission"). Prior to March 31, 2024, the City shall have obtained all requisite
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signatures necessary for the Permit Application Submission. In the event the City
fails to provide all necessary signatures by July I, 2024, the Agreement and all
obligations arising hereunder shall terminate without need for further action by
either party.
(b) Following the Permit Application Submission, the Developer and the City shall
cooperate in good faith to evaluate the cost feasibility of the Additional Streetscape
Improvements given the status and condition of the right-of-way and private land
holdings, and to pursue permits and approvals from all private parties, if any, and
agencies with jurisdiction, provided all costs of plans preparation, pursuing
approvals, and construction of the Additional Streetscape Improvements are borne
by the Developer in accordance with sub-paragraph 4(a) below. Following the
feasibility analysis subject to Section 3(d) below, Developer shall use
commercially reasonable efforts to process the requisite permits for construction
of the Additional Streetscape Improvements. In the event the Developer does not
obtain all of the permits and approvals necessary for the construction of the
Additional Streetscape Improvements by December 31, 2025, (the "Permit
Approval Deadline") then this Agreement shall be null and void without any
further action required by either party with no further obligation to either party.
( c) If the Developer does not complete the Developer's portion of the Permit
Application Submission by March 31, 2024 (the "Submission Deadline"), then the
Permit Approval Deadline as defined in sub-paragraph (3)(b) above shall be
extended day for day until such time as the Developer is able to complete the
Developer's portion of the Permit Application Submission. For clarity, the
Developer's portion of the Permit Application Submission excludes: i) obtaining
signatures from any private party landowners within the Additional Streetscape
Improvement Area authorizing the Developer to work any private lands within the
Potential Streetscape Improvement Area, to the extent such signatures are
required; ii) approval by the City authorizing the Developer to perform work on
City land; and iii) approval from the City authorizing the Developer to perform
work within City right-of-way.
(d) The parties recognize the unique challenges posed by the potential unknown
conditions and variables that could materially impact the Developer's ability to
construct the Additional Streetscape Improvements. In light of these unique
challenges, the parties agree that the Developer may allocate the AIPP
Requirement as follows:
1. In the event the Estimated Cost of Improvements exceeds $740,000,
then the City and the Developer shall work together and in good faith
for a period of sixty (60) days to value engineer the Estimated Cost of
Improvements to $740,000 or less. If, after this sixty (60) day period
the City and the Developer cannot mutually agree to value engineering
or a reduced scope which reduces the Cost of Improvements to
$740,000 or less, then the Agreement shall be terminated and of no
further effect without any further action by either party. The City
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Manager is hereby delegated with the authority to accept or reject the
value engineering or reduced scope identified within this sub-
paragraph without need for City Commission Approval.
ii. In the event the Estimated Cost of Improvements is less than $740,000,
then the Developer shall be authorized to allocate an additional amount,
up to $740,000, of the total cost of the AIPP Requirement to cover
contingencies and/or unforeseen conditions (the "Reserves").
111. If the Developer commences construction of the Additional Streetscape
Improvements but does not conclude them prior to the issuance of the
final certificate of occupancy for the Project, then the Developer at time
of final certificate of occupancy shall provide the City with a letter of
credit as more particularly described in paragraph 5 below for the
amount of the unspent Estimated Cost of Improvements plus Reserves
(the "Letter of Credit Amount") which may be used by the City if the
Developer does not complete the construction of the Additional
Streetscape Improvements on or before the 12-month anniversary of
the issuance of the final certificate of occupancy (the "Outside
Completion Date").
(e) As a material component of this Agreement, the City must possess and delegate to
the Developer the authority to improve and alter the rights-of-way, including any
lands within them that are privately held, as necessary for the construction of the
Additional Streetscape Improvements no later than December 31, 2025. In the
event the City cannot obtain and delegate to the Developer the authority to improve
and alter the rights-of-way, including any lands within them that are privately held,
by December 31, 2025, then the Developer's obligation to construct the Additional
Streetscape Improvements shall terminate without any further obligation
whatsoever.
4. Construction, Costs, and Credits Associated with the Additional Streetscape
Improvements
(a) Developer shall retain and control the design professionals and contractor(s) for
the Additional Streetscape Improvements and shall solely bear the risk of the
Actual Cost of Improvements exceeding the AIPP Requirement. The Developer
shall not be entitled to a refund if the Actual Cost of Improvements exceeds the
AIPP Requirement. The Developer shall be entitled to the Cost of Improvement
Credit whether or not the Additional Streetscape Improvements are actually
constructed, but shall be responsible for properly closing out all permits obtained
in connection with the Additional Streetscape Improvements.
(b) Upon obtaining all required governmental approvals, the Developer agrees to use
commercially reasonable efforts to diligently complete the Additional Streetscape
Improvements within a commercially reasonable period of time. For the avoidance
of doubt, the issuance of the Project's temporary certificate of occupancy and final
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certificate of occupancy shall not be conditioned upon the completion of the
Additional Streetscape Improvements.
(c) The Developer shall be entitled to a Cost oflmprovement Credit against the AIPP
Requirement.
5. Reconciliations & Letter of Credit Conditions
The Developer and the City shall reconcile the Cost oflmprovement Credit, any remaining
obligations with respect to the AIPP Requirement, and other related fees and costs to determine
the amount of the Developer's remaining financial obligations under this Agreement (the
"Reconciliation"), if any, depending on the circumstances outlined below:
(a) In the event this Agreement terminates without the commencement of construction
of the Additional Street Scape Improvements, then Reconciliation shall occur
within sixty (60) days of the termination date.
(b) In the event the Developer commences and completes construction on the
Additional Streetscape Improvements prior to receiving a final certificate of
occupancy for the Project the Reconciliation shall occur within sixty (60) days of
the receipt of the certificate of completion or like instrument memorializing the
completion of the Additional Streetscape Improvements.
(c) In the event Developer commences construction and completes construction on
the Additional Streetscape Improvements after receiving a final certificate of
occupancy for the Project but before the Outside Completion Date two
reconciliations shall occur as follows:
a. An initial Reconciliation shall occur to determine the Letter of Credit Amount
prior to the issuance of the final certificate of occupancy for the Project.
b. A secondary Reconciliation shall occur within sixty (60) days of the receipt of
the certificate of completion or like instrument memorializing the completion
of the Additional Streetscape Improvements.
(d) In the event the Developer commences construction but does not complete
construction by the Outside Completion Date, then the Reconciliation shall occur
within sixty (60) days of the Outside Completion Date.
Within ten (10) business days of the conclusion of Reconciliation, the Developer shall
cause a line of credit to be placed in escrow with First American Title Insurance Company in the
Reconciliation Amount. The Developer shall be entitled to substitute a new and updated letter of
credit following each Reconciliation the Developer shall have two (2) years from the date the
Reconciliation Amount is placed in escrow to satisfy any remaining obligation arising under the
AIPP Requirement which shall be calculated as the AIPP Requirement Less the Costs of
Improvement Credit. The Developer shall be entitled to the release of the letter of credit to it upon
the Developer's satisfaction of the AIPP Requirement.
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6. Streetscape Improvements Otherwise Required Not Affected.
Nothing herein shall be construed to limit or reduce the scope of right-of-way
improvements within the vehicular travel lanes and on the south side of SW 73rd Street adjacent
to the Project, and in other rights-of-way adjacent to the Project, as those may be contemplated
or required pursuant to the City's Code of Ordinances, the Land Development Code, general law,
the Large Scale Development approval, the site plan approval, modifications to the site plan
approval, the Building Permit or other permit, and the Development Agreement.
7. 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 ( I 0) days before the change of address is to become
effective.
a. Notice to Developer. Notice or communication to Developer under this Agreement
must be sent to:
Avalon Somi, LLC
200 E Broward Blvd, Suite 1400
Fort Lauderdale, FL 33301
Attention: Micah Conn, Senior Vice President of AvalonBay Communities, Inc.
With a copy to:
A valonBay Communities, Inc.
4040 Wilson A venue, Suite 1000
Arlington, VA 22203
Attention: Legal Department
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b. Notice 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
City of South Miami
Weiss Serota Helfman Cole & Bierman, P.L.
2800 Ponce de Leon 8 lvd, Suite 1200
Coral Gables, Florida 33134
Attn: Lillian Arango and Tony Recio, City Attorneys
With copy by email at larango@wsh-law.com and trecio@wsh-law.com.
and
City Clerk
6130 Sunset Drive
South Miami, Florida 33143
Attention: City Clerk
8. Miscellaneous Provisions.
(a) Not A Development Agreement. This Agreement is not a development agreement,
and is independent of, and shall not be construed as an amendment or modification
to, the Development Agreement. Notwithstanding the foregoing, the Developer's
compliance with the terms of this Agreement shall be deemed by the City to satisfy
the Developer's AIPP Requirement under the Development Agreement.
(b) No Partnership 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. Nothing contained in this
Agreement shall 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.
(c) Florida and 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,
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(d)
(e)
(t)
(g)
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 Project; 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 term, 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.
Conflicts oflnterest: City Representatives Not Individually Liable. No commission
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
commission 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 commission member, official, elected representative or
employee of the City or the City Manager may be personally 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.
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.
Successors and Assigns. 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. An assignment shall not
release Developer from its obligations under this Agreement unless an amendment
to this Agreement relieving Developer of one or more obligations hereunder is
executed and recorded as provided in Section 11 (g) of this Agreement. The City
Commission shall not be obligated to approve an assignment or otherwise be
relieved of its obligations in this Agreement.
Entire Agreement. This Agreement and its Exhibits constitute the sole and only
agreement of the parties hereto with respect to the subject matter hereof and
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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. Notwithstanding the foregoing, this Agreement shall not be
construed to amend or release any portion of the Development Agreement.
(h) Amendments. No amendments to this Agreement are binding on either party unless
in writing and signed by both parties. 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
("Express Assigns") (i.e., even if the Property is subdivided and more than one (I)
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 Project 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).
(i) Authorization and Approvals by the City. 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, except for those matters that the City Manager is required by
law to obtain City Commission approval. 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
9
request by the Developer, and through its regular enactment procedures, designate
such other officer or department as may be appropriate to perform the City's
obligations. Nothing contained herein or in this Agreement authorizes the City
Manager to amend any of the terms of this Agreement.
G) Exculpation. 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, 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.
(k) Caption. 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.
(I) Days, Holidays. References to "days" in this Agreement shall mean calendar days.
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.
(m) No Liability for Approvals and 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.
(n) Developer Entity. On the date of execution hereof, the Developer is a Delaware
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 Delaware limited liability company, then any references
herein to member, membership interest, manager and the like which are applicable
to a Delaware 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.
( o) Cooperation; Expedited 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 applicable requirements of the Code, LDC, the
Existing Approvals, the Comprehensive Plan, this Agreement, applicable building
codes, or any other applicable laws, rules, orders, or regulations. 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.
(p) Severability. 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.
( q) Approvals and Consents. 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.
(r) Sovereign Immunity. Nothing in this Agreement shall be deemed or otherwise
interpreted as waiving the City's sovereign immunity protections existing under the
laws of the State of Florida, or as increasing the limits of liability as set forth in
Section 768.28, Florida Statutes.
(s) Non-Discrimination. No covenant, agreement, lease, conveyance, or other
instrument concerning the sale, lease, use or occupancy of the Project or any portion
thereof shall be affected or executed by Developer, or any of its successors or
assigns, whereby the Project or any portion thereof is restricted by Developer, or
any successor in interest, upon the basis ofrace, 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 Project or any portion thereof. Furthermore, Developer agrees to
make accommodations for the handicapped as required by law and that no
otherwise qualified handicapped individual shall, 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 Project or be subjected to discrimination under any
program or activity allowed under this Agreement except as permitted by law.
11
(t) Agency Status. In the event construction of Additional Improvements proceeds in
accordance with this Agreement, the City appoints Developer as its agent and
Developer agrees to act for the City concerning the construction of Additional
Improvements. The City shall have control over the actions of the Developer
regarding such construction. Developer shall, therefore, be deemed a state agency
or subdivision pursuant to section 768.28(2), Fla. Stat. entitled to all rights,
privileges, and/or immunities of a state agency or subdivision as defined in Section
768.28, Florida Statutes, including but not limited to the protections of sovereign
immunity. Notwithstanding anything to the contrary herein, any potential liability
of the Developer, and its defense of any such claim and its associated costs
(including but not limited to attorneys' fees, judgments, and court costs), shall be
wholly independent of the City, and nothing herein shall be construed as imposing
an obligation on the City to indemnify or defend the Developer in any action, nor
shall it be construed to waive the City's rights, privileges, and/or immunities set
forth in law. Nothing herein is intended, nor shall it be construed to establish an
employment relationship.
(q) Undergrounding Power. The Developer shall cause the introduction of the City to
the responsible persons within Florida Power & Light Company ("FPL") in order
to obtain a good faith estimate of the cost of undergrounding the power lines within
the Potential Streetscape Improvement Area. For the avoidance of doubt, this
paragraph does not create an obligation on the Developer's part to pay for the
estimate or perform the work to underground the powerlines.
[SIGNATURE PAGES TO FOLLOW]
12
WITNESSES
B y : ~~
S ig n~ ofiitness # 1
Print o r type
Print or type name
STATE OF _ _._f--=u:a,;=-::...c.\L..._P -'-P. ____ _
COUNTY OF ~<Lo~
D EVELOPER: A ALON S OMI, LLC, a
Delaware L in iability Co mpan y
By: __ ....:..._-----,1-=----------
Mica nn , as Seni o r Vice Presid e n t
of A ONBA Y COMMUNITIES,
IN Maryland C orporatio n), th e
la tte r of w hi c h is t he manage r a nd sole
111 e1 b e r of AV ALON SOMI
INVESTOR, LLC (a Delaware
Limited Liability Compa ny), the
m anager a nd so le member of AV ALON
SOMI, LLC (a Delaware Limited
Liability Compan y)
The fo regoin g in stru m e nt was ackn owle dged befo re m e thi s ~-'<--day of Februar y , 2024, by
Micah Conn , as Seni o r V ice Pres ident of AVALONBAY COMMUNITIES, INC. (a Maryland
Corporati on), the latte r of w hi c h is th e ma n ager a nd so le me m ber of AVALON SOMI
INVESTOR, LLC (a D e lawar e L imi ted Liabi lity Company), w hi c h is the ma n ager a nd so le
member of AVALON SOMI , LLC (a De lawa re Limi ted Li ab ili ty Co mpany), w ho is persona ll y
kn ow n to m e o r w ho has/h ave produced ,->I A as id entification an d w ho did ·
take a n oath a nd w ho swo re o r affi rmed that he s ig ned th is Agreemen t o n be half of AVALON
SOMI, LLC, t h at h e is a ut ho ri zed to s ig n th is Agreeme nt by AVALONB AY COMMUNITIES,
IN C., the m a nager a nd sole m e mbe r o f AV ALON SOMI INVESTOR, LLC, and he is a uth orized
to s ig n this Agreement by AVALON SOMI I NVESTOR, LLC, th e man ager and so le m e mbe r
ofAVALONSOMI,LLC. ~
-=-=-=-::xv,..1t~~~..,u-(_=46"1£-==.=----
~fNotary
(NOTARY SEA L)
\\\\lllf11,,, A /;i~~-~?~ ngela Gayle Stevenson
t(8.Y'~ ~omm.: HH 363353
\!1i>ii~ Exp ires: February 16, 2027
'''"'""'' Notary Public • State of Florida
Pr in t or type name
13
Re ad and Approved as to Form, Language,
Le ga lity a nd Execution T hereof:
By :_______,.___.,_~_-----
Weis s Serota H e lfm an
Co le & Bi e rman P.L.
A nth o ny L. Reci o
C ity Atto rn ey
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
CITY UTHMIAMI
"Chip" Ig les ias
C ity Ma nage r
The fo rego in g in strume nt was ack now ledged befo re me thi s __ d ay o f Feb ruary 2024,
by Ge naro "Chi p" Ig les ias , C ity Ma nager, who is pe rso na ll y known to me a nd acknow ledge
exec utin g th e same freely and vo lun tar il y un de r a uth o ri ty ves ted in him by th e City of South
Miami .
S g nature of Not
(NO TARY SEA L) J-/1gA 1/. ~ ✓d:-
Print o r type nam e
.. •;,,•~ MARIAL. GARCIA }>•j.;:') MY COMMISSION # HH 143024
;_0~-~·~~i EXPIRES: October 16, 2025
·--.~~~·r:t~f-.-Bonded Thru Nota,y Publlc UndetWritera
14
EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
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.
15
EXIDBITB
POTENTIAL STREETSCAPEI1VIPROVE1\1ENT AREA
16
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1
AGREEMENT
THIS AGREEMENT (“Agreement”) is made and entered into as of this ___ day of _____
_________________, 2024, by and between the CITY OF SOUTH MIAMI, a Florida municipal
corporation (“City”) and AVALON SOMI, LLC, a Delaware limited liability company
(“Developer”).
RECITALS:
WHEREAS, the Developer is the owner of the real property located within the City which
is more particularly described in the legal description attached hereto as Exhibit A (the
“Property”); and
WHEREAS, on August 10, 2023, the City and the Developer entered into the Second
Amended and Restated Development Agreement (the “Development Agreement”) recorded in
Official Records Book 33837, Page 419 of the Public Records of Miami-Dade County, Florida, to
govern the development of the Property; and,
WHEREAS, the Property is to be developed in substantial conformance with the plans
entitled “South Miami Market” dated March 22, 2023 by Corwil Architects, together with
supporting submittals, filed by the Developer and approved by the City Manager on June 23, 2023
as a minor modification to an approved site plan (the “Project”); and
WHEREAS,during the negotiation of the Development Agreement the City and the
Developer discussed certain potential additional streetscape improvements within SW 73
rd Street,
between SW 59th Avenue and SW 58th Court, as shown more particularly on Exhibit B attached
hereto (the “Potential Streetscape Improvement Area”); and,
WHEREAS,the Parties recognize that unknown and complicating site conditions may
exist within the Potential Streetscape Improvement Area the discovery of which could render it
impossible or commercially unreasonable for the Developer to perform additional streetscape
improvements within the Potential Streetscape Improvement Area; and,
WHEREAS, the City intends that the costs associated with the potential additional
streetscape improvements shall be cost neutral to the Developer and, to ensure same, the City
agrees that the verifiable hard and soft costs for the potential additional streetscape improvements
shall be credited against all Art in Public Places fees and contributions required under the City
Code (the “AIPP Requirement”); and,
WHEREAS, the Parties wish to enter into this Agreement to establish a process outside of
the Development Agreement to explore the feasibility of certain additional streetscape
improvements within the Potential Streetscape Improvement Area, and to construct certain
streetscape improvements in the areas of the Potential Streetscape Improvement Area where
feasible; and,
NOW, THEREFORE, in consideration of the mutual covenants entered into between the
City and Developer, and in consideration of the benefits to accrue to each, it is hereby agreed as
follows:
6
2
1.Recitals.
The above recitals are true and correct and are incorporated herein and made a part hereof.
2.Definitions.
In addition to the defined terms that appear throughout this Agreement, the following
terms shall be assigned the following meanings:
(a)“Additional Streetscape Improvements” shall refer to those improvements
proposed to Miami-Dade County and the City including, but not limited to
sidewalk, curb, gutter, removal of existing on-street parking spaces, and
landscaping on the north portion of the Potential Streetscape Improvement Area,
adding one or more crosswalks at the intersection of SW 73rd Street and SW 59th
Avenue within the Potential Streetscape Improvement Area. For clarity,
undergrounding of utility lines within the Potential Streetscape Improvement Area
(“Utility Undergrounding”) are not within the scope of the Additional Streetscape
Improvements.
(b)“Actual Cost of Improvements” shall refer to the hard and soft costs associated with
the construction of the Additional Streetscape Improvements that are actually
expended.
(c)“Cost of Improvement Credit” shall refer to the Developer’s credit against the
AIPP Requirement in an amount equal to all monies actually spent by the
Developer developing the plans for and/or constructing the Additional Streetscape
Improvements including but not limited to costs incurred for the associated civil
engineering, survey work, utility surveys, sub-surface exploration costs, and
similar costs.
(d)“Estimated Cost of Improvements” shall refer to the hard and soft costs associated
with the construction of the Additional Streetscape Improvements, as estimated by
the Developer prior to the issuance of the permit approval for the Additional
Streetscape Improvements.
3.The Process and Scope of Potential Additional Streetscape Improvements.
The City Manager and the Developer hereby establish the following process for seeking
approval of additional potential streetscape improvements within the Potential Streetscape
Improvement Area and further defining the scope of the Additional Streetscape Improvements:
(a)From January 1, 2024, through March 31, 2024, the Developer shall prepare civil
plans for improvements to the Potential Streetscape Improvement Area and present
such plans to Miami-Dade County and the City for permitting (the “Permit
Application Submission”). Prior to March 31, 2024, the City shall have obtained
all requisite signatures necessary for the Permit Application Submission. In the
event the City fails to provide all necessary signatures by July 1, 2024, the
Agreement and all obligations arising hereunder shall terminate without need for
7
3
further action by either party.
(b)Following the Permit Application Submission, the Developer and the City shall
cooperate in good faith to evaluate the cost feasibility of the Additional Streetscape
Improvements given the status and condition of the right-of-way and private land
holdings, and to pursue permits and approvals from all private parties and agencies
with jurisdiction, provided all costs of plans preparation, pursuing approvals, and
construction of the Additional Streetscape Improvements are borne by the
Developer in accordance with sub-paragraph 2(c) below. In the event that the
Developer does not obtain all of the permits and approvals necessary for the
construction of the Additional Streetscape Improvements by December 31, 2025,
(the “Permit Approval Deadline”) then this Agreement shall be null and void
without any further action required by either party with no further obligation to
either party.
(c)If the Developer does not complete the Developer’s portion of the Permit
Application Submission by March 31, 2024 (the “Submission Deadline”), then the
Permit Approval Deadline as defined in sub-paragraph (3)(f) below shall be
extended day for day until such time as the Developer is able to complete the
Developer’s portion of the Permit Application Submission. For clarity, the
Developer’s portion of the Permit Application Submission excludes: i) obtaining
signatures from private party landowners within the Additional Streetscape
Improvement Area authorizing the Developer to work on their private lands; ii)
approval by the City authorizing the Developer to perform work on City land; and
iii) approval from the City authorizing the Developer to perform work within City
right-of-way.
(d)The parties recognize the unique challenges posed by the potential unknown
conditions and variables that could materially impact the Developer’s ability to
construct the Additional Streetscape Improvements. In light of these unique
challenges, the parties agree that the Developer may allocate the AIPP
Requirement as follows:
i. In the event that the Estimated Cost of Improvements exceeds
$740,000, then the City and the Developer shall work together and in
good faith for a period of sixty (60) days to value engineer the
Estimated Cost of Improvements to $740,000 or less. If, after this sixty
(60) day period the City and the Developer cannot mutually agree to
value engineering or a reduced scope which reduces the Cost of
Improvements to $740,000 or less, then the Agreement shall be
terminated and of no further effect without any further action by either
party. The City Manager is hereby delegated with the authority to
accept or reject the value engineering or reduced scope identified
within this sub-paragraph without need for City Commission Approval.
ii. In the event that the Estimated Cost of Improvements is less than
$740,000, then the Developer shall be authorized to allocate up to
8
4
$740,000 of the total cost of the AIPP Requirement to cover
contingencies and/or unforeseen conditions (the “Reserves”).
iii. If the Developer commences construction of the Additional Streetscape
Improvements but does not conclude them prior to the issuance of the
final certificate of occupancy for the Project, then the Developer at time
of final certificate of occupancy shall provide the City with a letter of
credit as more particularly described in paragraph 5 below for the
amount of the unspent Estimated Cost of Improvements plus Reserves
(the “Letter of Credit Amount”) which may be used if the Developer
does not complete the construction of the Additional Streetscape
Improvements on or before the 12-month anniversary of the issuance
of the final certificate of occupancy (the “Outside Completion Date”).
The City agrees to release the letter of credit upon completion of the
Additional Streetscape Improvements so long as such completion
occurs prior to the Outside of Completion Date.
(e)As a material component of this Agreement, the City must possess and delegate to
the Developer the authority to improve and alter the private lands and right-of-way
as necessary for the construction of the Additional Streetscape Improvements no
later than December 31, 2025. In the event that the City cannot obtain and delegate
to the Developer the authority to improve and alter the private lands and right-of-
way by December 31, 2025, then the Developer’s obligation to construct the
Additional Streetscape Improvements shall terminate without any further
obligation whatsoever.
4.Construction, Costs, and Credits Associated with the Additional Streetscape
Improvements
(a)Developer shall retain and control the design professionals and contractor(s) for
the Additional Streetscape Improvements, and shall solely bear the risk of the
Actual Cost of Improvements exceeding the AIPP Requirement. The Developer
shall not be entitled to a refund if the Actual Cost of Improvements exceeds the
AIPP Requirement. The Developer shall be entitled to the Cost of Improvement
Credit whether or not the Additional Streetscape Improvements are actually
constructed.
(b)Upon obtaining all required governmental approvals, the Developer agrees to use
commercially reasonable efforts to diligently complete the Additional Streetscape
Improvements within a commercially reasonable period of time. For the avoidance
of doubt, the issuance of the Project’s temporary certificate of occupancy and final
certificate of occupancy shall not be conditioned upon the completion of the
Additional Streetscape Improvements.
(c)The Developer shall be entitled to a Cost of Improvement Credit against the AIPP
Requirement, and due from Developer at final certificate of occupancy pursuant
to sub-paragraph 6(m) of the Development Agreement.
9
5
5.Reconciliations & Letter of Credit Conditions
The Developer and the City shall reconcile the Cost of Improvement Credit, any remaining
obligations with respect to the AIPP Requirement, and other related fees and costs to determine
the amount of the Developer’s remaining financial obligations under this Agreement, if any,
depending on the circumstances outlined below:
(a)In the event that this Agreement terminates without the commencement of
construction of the Additional Street Scape Improvements, then Reconciliation
shall occur within sixty (60) days of the termination date.
(b)In the event that the Developer commences and completes construction on the
Additional Streetscape Improvements prior to receiving a final certificate of
occupancy for the Project the Reconciliation shall occur within sixty (60) days of
the receipt of the certificate of completion or like instrument memorializing the
completion of the Additional Streetscape Improvements.
(c)In the event Developer commence and completes construction on the Additional
Streetscape Improvements after receiving a final certificate of occupancy for the
Project but before the Outside Completion Date two reconciliations shall occur
shall occur as follows:
a. A preliminary Reconciliation shall occur to determine the Letter of Credit
Amount prior to the issuance of the final certificate of occupancy for the
Project.
b. A final Reconciliation shall occur within sixty (60) days of the receipt of the
certificate of completion or like instrument memorializing the completion of
the Additional Streetscape Improvements.
(d)In the event that the Developer commences construction, but does not complete
construction by the Outside Completion Date, then the Reconciliation shall occur
within sixty (60) days of the Outside Completion Date.
Within ten (10) business days of the conclusion of the Reconciliation, the Developer shall
cause a line of credit to be placed in escrow with First American Title Insurance Company in the
Reconciliation Amount. The Developer shall have two (2) years from the date the Reconciliation
Amount is placed in escrow to satisfy any remaining obligation arising under the AIPP
Requirement.
6.Streetscape Improvements Otherwise Required Not Affected.
Nothing herein shall be construed to limit or reduce the scope of right-of-way
improvements within the vehicular travel lanes and on the south side of SW 73rd Street adjacent
to the Project, and in other rights-of-way adjacent to the Project, as those may be contemplated
or required pursuant to the City’s Code of Ordinances, the Land Development Code, general law,
the Large Scale Development approval, the site plan approval, modifications to the site plan
approval, the Building Permit or other permit, and the Development Agreement.
10
6
7.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.
a.Notice to Developer. Notice or communication to Developer under this Agreement
must be sent to:
Avalon Somi, LLC
200 E Broward Blvd, Suite 1400
Fort Lauderdale, FL 33301
Attention: Micah Conn, Senior Vice President of AvalonBay Communities, Inc.
With a copy to:
AvalonBay Communities, Inc.
4040 Wilson Avenue, Suite 1000
Arlington, VA 22203
Attention: Legal Department
b.Notice 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
City of South Miami
Weiss Serota Helfman Cole & Bierman, P.L.
2800 Ponce de Leon Blvd, Suite 1200
Coral Gables, Florida 33134
11
7
Attn: Lillian Arango and Tony Recio, City Attorneys
With copy by email at larango@wsh-law.com and trecio@wsh-law.com.
and
City Clerk
6130 Sunset Drive
South Miami, Florida 33143
Attention: City Clerk
8.Miscellaneous Provisions.
(a)Not A Development Agreement. This Agreement is not a development agreement,
and is independent of, and shall not be construed as an amendment or modification
to, the Development Agreement.
(b)No Partnership 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. Nothing contained in this
Agreement shall 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.
(c)Florida and 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 Project; 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 term, 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.
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8
(d)Conflicts of Interest: City Representatives Not Individually Liable. No commission
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
commission 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 commission member, official, elected representative or
employee of the City or the City Manager may be personally 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.
(e)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.
(f)Successors and Assigns. 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. An assignment shall not
release Developer from its obligations under this Agreement unless an amendment
to this Agreement relieving Developer of one or more obligations hereunder is
executed and recorded as provided in Section 11(g) of this Agreement. The City
Commission shall not be obligated to approve an assignment or otherwise be
relieved of its obligations in this Agreement.
(g)Entire Agreement. 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. Notwithstanding the foregoing, this Agreement shall not be
construed to amend or release any portion of the Development Agreement.
(h)Amendments. No amendments to this Agreement are binding on either party unless
in writing and signed by both parties. 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
(“Express Assigns”) (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.
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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 Project 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).
(i)Authorization and Approvals by the City. 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, except for those matters that the City Manager is required by
law to obtain City Commission approval. 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, and through its regular enactment procedures, designate
such other officer or department as may be appropriate to perform the City’s
obligations. Nothing contained herein or in this Agreement authorizes the City
Manager to amend any of the terms of this Agreement.
(j)Exculpation. 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, 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.
(k)Caption. The article and section headings and captions of this Agreement and the
table of contents preceding this Agreement are for convenience and reference
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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.
(l)Days, Holidays. References to “days” in this Agreement shall mean calendar days.
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.
(m)No Liability for Approvals and 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.
(n)Developer Entity. On the date of execution hereof, the Developer is a Delaware
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 Delaware limited liability company, then any references
herein to member, membership interest, manager and the like which are applicable
to a Delawarelimited 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.
(o)Cooperation; Expedited 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 applicable requirements of the Code, LDC, the
Existing Approvals, the Comprehensive Plan, this Agreement, applicable building
codes, or any other applicable laws, rules, orders, or regulations. 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.
(p)Severability. 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
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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.
(q)Approvals and Consents. 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.
(r)Sovereign Immunity. Nothing in this Agreement shall be deemed or otherwise
interpreted as waiving the City’s sovereign immunity protections existing under the
laws of the State of Florida, or as increasing the limits of liability as set forth in
Section 768.28, Florida Statutes.
(s)Non-Discrimination. No covenant, agreement, lease, conveyance or other
instrument concerning the sale, lease, use or occupancy of the Project or any portion
thereof shall be affected or executed by Developer, or any of its successors or
assigns, whereby the Project 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 Project or any portion thereof. Furthermore, Developer agrees to
make accommodations for the handicapped as required by law and that no
otherwise qualified handicapped individual shall, 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 Project or be subjected to discrimination under any
program or activity allowed under this Agreement except as permitted by law.
(t)Agency Status. In the event of an amendment to this Agreement pursuant to Section
3(a) for the construction of Additional Improvements, the City appoints Developer
as its agent and Developer agrees to act for the City concerning the construction of
Additional Improvements. The City shall have control over the actions of the
Developer regarding such construction. Developer shall, therefore, be deemed a
state agency or subdivision pursuant to section 768.28(2), Fla. Stat. entitled to all
rights, privileges, and/or immunities of a state agency or subdivision as defined in
Section 768.28, Florida Statutes, including but not limited to the protections of
sovereign immunity. Notwithstanding anything to the contrary herein, any potential
liability of the Developer, and its defense of any such claim and its associated costs
(including but not limited to attorneys’ fees, judgments, and court costs), shall be
wholly independent of the City, and nothing herein shall be construed as imposing
an obligation on the City to indemnify or defend the Developer in any action.
Nothing herein is intended, nor shall it be construed to establish an employment
relationship.
[SIGNATURE PAGES TO FOLLOW]
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WITNESSES
By: _______________________________
Signature of Witness # 1
_______________________________
Print or type name
By: _______________________________
Signature of Witness # 2
_______________________________
Print or type name
DEVELOPER: AVALON SOMI, LLC, a
Delaware Limited Liability Company
By: _______________________________
Micah Conn, as Senior Vice President
of AVALONBAY COMMUNITIES,
INC. (a Maryland Corporation), the
latter of which is the manager and sole
member of AVALON SOMI
INVESTOR, LLC (a Delaware
Limited Liability Company), the
manager and sole member of AVALON
SOMI, LLC (a Delaware Limited
Liability Company)
STATE OF __________________________
COUNTY OF
The foregoing instrument was acknowledged before me this day of __________,
20__, by Micah Conn, as Senior Vice President of AVALONBAY COMMUNITIES, INC.(a
Maryland Corporation), the latter of which is the manager and sole member of AVALON SOMI
INVESTOR, LLC (a Delaware Limited Liability Company), which is the manager and sole
member of AVALON SOMI, LLC (a Delaware Limited Liability Company), who is personally
known to me or who has/have produced as identification and who did
take an oath and who swore or affirmed that he signed this Agreement on behalf of AVALON
SOMI, LLC, that he is authorized to sign this Agreement by AVALONBAY COMMUNITIES,
INC., the manager and sole member of AVALON SOMI INVESTOR, LLC,andhe is authorized
to sign this Agreement by AVALON SOMI INVESTOR, LLC,the manager and sole member
of AVALON SOMI, LLC.
Signature of Notary
(NOTARY SEAL)
Print or type name
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ATTESTED:CITY OF SOUTH MIAMI
By: ____________________By: ________________________
Nkenga A. Payne, CMC Genaro “Chip” Iglesias
City Clerk City Manager
Read and Approved as to Form, Language,
Legality and Execution Thereof:
By: ________________________
Weiss Serota Helfman
Cole & Bierman P.L.
Anthony L. Recio
City Attorney
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
The foregoing instrument was acknowledged before me this day of ___________,
2023, by Genaro “Chip” Iglesias, City Manager, who is personally known to me and acknowledge
executing the same freely and voluntarily under authority vested in herby the City of South Miami.
Signature of Notary
(NOTARY SEAL)
Print or type name
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EXHIBIT A
LEGAL DESCRIPTIONOF PROPERTY
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.
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EXHIBIT B
POTENTIAL STREETSCAPE IMPROVEMENT AREA
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