04-07-09 Item 2bSouth Miami
All- America City
CITY OF SOUTH MIAMI , I r
OFFICE OF THE CITY MANAGER
INTER - OFFICE MEMORANDUM 2001
To: The Honorable Mayor. Feliu and Members of the City Commission
Via: Ajibola Balogun , City Manager
From: Thomas J. Vageline, Planning Director
Date: April 7, 2009 ITEM NO.
Subject: Annual Report on 64 Development Corp. Project at 5966 -70 S. Dixie Highway.
Project Summary
The City Commission at its June 5, 2007 meeting approved .Resolution No. 97 -07 -12482 allowing 64
Development Corporation to construct a mixed use building on property in the SR (HD -OV) zoning district.
The vacant site at 5966 -70 S. Dixie Highway contains 31,523 square feet and has sides facing three streets. The
project is a mixed use (office / retail) four story building with an integrated parking structure. There will be
38,233 square feet of commercial office and 11,052 square feet of retail space. The applicant received approval
for three special exceptions to modify regulations pertaining to lot coverage, building size, and location of curb
cuts.
Development Agreement
Following a period of negotiations the developer and the City agreed to place covenants, conditions and terms
into an independent Development Agreement which would be in effect for 10 years. The Development
Agreement was approved on March 18, 2008 by the City Commission via Resolution No. 41 -08- 12638. The
agreement was executed on April 9, 2008 and was recorded in the County registry of deeds on April 9, 2008 as
required by Section 35 of the Agreement. The Development Agreement is attached.
Annual Report
The Agreement includes a requirement that the developer submit an annual report on the anniversary of the
effective date of the Development Agreement (Section 27). It is essentially a status report showing that
obligations have been met and that there has been compliance with the provisions of the Agreement. The
Annual Report was submitted to the City Manager on March 16, 2009 and must be reviewed by the City
Commission at a public meeting. The City Commission may accept the report or if there is a finding by the
Commission that there has been a failure to comply with the terms of the Development Agreement, the
Agreement may be revoked or modified by the City. The Annual Report is attached.
Administration Observation
The project is currently under construction. The Administration's review of the Annual Report confirms that the
developer has obtained all necessary permits and approvals, including approval of building plans and landscape
plans by the Environmental Review and Preservation Board, and a public utility right -of way agreement recently
approved by Resolution No. 80- 08- 012677.
Attachments:
Annual Report from developer 3116109
Resolution No. 80 -08 -12677
Development Agreement /Resolution No. 41 -08 -12638
TJ VISA Y
X.• (Comm Items1200914 -7 -09164 Development Project Annual Rep CM report .doe
64 DEVELOPMENT CORP.
City of South Miami
City Manager
W. Ajibola Balogun
6130 Sunset Drive
South Miami, FL 33143
Re: Resolution NO.: 41 -08- 12638; 5966 S. Dixie Highway
Dear Mr. Balogun,
As per the requirements set forth in the above referenced Resolution, enclosed
please find the annual report updating you on the status of the project located at
5966 S. Dixie Highway.
Please contact me if you have any questions regarding this report.
Sincer y
J�f
Marcelo Fernandes
Vice - President
Cc: Sanford Youkilis'
Tucker Gibbs
MAR 16 2009
CrrY MANAGER'S
7440 SW 50TH TERRACE, SUITE 109 MIAMI, FLORIDA • 33155
PHONE: 305- 663 -1293 - FAX: 786- 363 -4336
WEB SITE: OXFORDUNIVERSAL.COM
UPDATE — MARCH 2009
DEVELOPMENT AGREEMENT
BETWEEN
THE CITY OF SOUTH MIAMI, FLORIDA
AND 64 DEVELOPMENT CORPORATION
An Item by Item review is detailed below as requested per section 27 of the
Agreement:
Development Conditions as outlined in Section 8 of the Contract:
(a) The Company shall meet all applicable building codes, land
development regulations, ordinances and other laws.
UPDATE CQMPLETED Permits have been atiamed from thex
fol[owmg :City of South`;M�am� :departments,;
(b) The Company shall adhere to the requirements of all permits for
the project.
UPDATE i1N;PR�GRESS., Construct�on.is underwayand as.;of
this date all work performed;and inspections attained have
complied with theperm #documents:°
(c) The Company shall develop the project in conformance with the
parameters set forth in this agreement.
UPDATE IN PROGRESS Constiructfon �s underway and as of
this date afC work,;performed and inspections attained have
compt�ed w,�th the: permit documents
(d) The Project shall be consistent with the site plan submitted
with the special exceptions incorporated herein.
Page 1 of 4
UPDATE:;IN PROGRESS. ConstructI. >is underway,and as of
iths date,ail work. performed,. and ;inspections attained hafa
complied with =#he perms #documeints
(e) The Company shall provide the Department of Planning with a
temporary parking plan, including an operational plan, which
addresses construction employee parking during the construction
period, said plan shall include an enforcement plan and shall be
subject to the review and approval by the planning director prior to
the issuance of any building permits and shall be enforced during
construction activity.
U1P,DATE COMPLETED A Deta![e ;pian
has,been submitted to he City of South miand �s currently
being adhered to
f) All conditions imposed by the City Commission as part of its
approvals of the special exceptions referenced herein shall be
incorporated in this Development Agreement.
UPDATE ,COMPLETED ;, Atl ..conditions establishedby he,C�ty
Comm�ss�on,have,;been iincorporated nto #his Agireemen #.and
are_ being;ad_hered to
g) The Company shall fund and implement traffic calming
improvements along streets abutting the property. These
improvements shall be set forth in detail in the agreement with the
City referenced in paragraph 5 herein.
UPDATE 11N iPRQCES3 _ A permit has been aita�ned;from.:It
City of Sou#h
11A Public iNorks.;department;wh�ch' details all
the traffic calming improvements as requested 0. struction
under:th�s permit ;has lbegun,.
h) The Company shall cooperate with the City and implement the
conditions for the development of the Project as set forth in the
Page 2 of 4
conditions of the special exception approvals as well as in this
agreement.
UPDATiE,1N :PROCESS Alil permits attained have been fr>E #ull
cornpl�ance w #h allahe approved pedal: exceptions;�an�d,
cond�t�ons,�n this,agreement `:;Construc�on under: #here:
0064 W& b -
i) The Company shall present for Department of Planning
approval a landscape plan for the Project. No building permit
shall be issued to the Company for the development of the ?
Property prior to the City approval of the landscape plan. All
proposed landscaping within the right-of-way abutting the
property shall be submitted to the Public Works Department
for review. The Company agrees to maintain the
landscaping and accompany irrigation in perpetuity.
UPDATE 1N _PROCESS.'. A comple #e landscape;plan has been
subm�tied and a, permit has been. attained for the aandscapmg;
of the project Landscaping improvements hake not yef`begun
j) The Company shall use brick or concrete pavers along the
Property's frontage along US -1.
UPDATiE.,1N PROCESS ;iP,ecmEts have been attamed,;to include:
a;decoratwe concrete design.along;the frontage of the project:
The cons #ruction of this „item has'nofi yet begun
k) The building's parking shall be available to the general public for
public parking during the evenings and weekends subject to the
Company's right to designate the hours of operation and parking
rates.
UPDATE Ths:w�ll be implemen #ed upon: complet.on of the:
project,
1) The Company shall develop an incentive program to promote the
use of Metro -rail by all employees during peak hours.
Page 3 of 4
r.. :.
UPDATE This will be >Imptemented upon completso, the
pcoject.
m) The Company in cooperation with the South Miami departments
of Public Works and Planning shall erect directional signs and
traffic directional .structures in the exits of the parking garage and
within the public right -of -way to guide exiting traffic away from
abutting neighborhood roads to US -1 during peak hours.
UPDATE IN_ PROCESS ; A perm�tµhas been;atta,mec� from `the
City cf SouthMami Public Vllorks department which detaiisall
these, directional elem ®nts, as _requested _,Construction ,under
ttiiis perm# has begun:.
n) The Company shall coordinate with the South. Florida Commuter
Services to promote carpooling.
UPDATE . Th, is.will,be implemented _upon completion of the
Project.
List of Current Permits that have been attained:
Permit Type
Issued By
Drainage
FDOT
Landscaping on State Road Right of Way
FDOT
Temp Fence
FDOT
Access
FDOT
DERM Class V Dewatering
DERM
New Office Building Permit
City of S. Miami
Tree Removal Permit
City of S. Miami
Temp Electrical
City of S. Miami
Plumbing Permit
City of S. Miami
Temp. Portable Bathroom (Friendly John)
City of S. Miami
Water Main Extension Permit
Fl. Dept. of Health
Demolition Permit
Icity of S. Miami
Page 4 of 4
Current photograph of the site:
Page 5 of 5
RESOLUTION NO. 80 -08 -12677
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
SOUTH MIAMI, FLORIDA, AUTHORIZING THE CITY MANAGER TO ENTER
INTO AN AGREEMENT WITH 64 DEVELOPMENT CORPORATION, A FLORIDA
CORPORATION, FOR DISCHARGING ONSITE DRAINAGE (STORMWATER)
INTO OFFSITE DRAINAGE FACILITES TO BE CONSTRUCTED AND
MAINTAINED BY 64 DEVELOPMENT CORPORATION IN PERPETUITY;
PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, the Mayor and City commission wishes to encourage development, infrastructure
improvements and utilities maintenance within the City of South Miami; and,
WHEREAS, the Owner of 64 Development Corporation is requesting to construct off -site
drainage facilities on the City's right -of -way abutting the property and to maintain the facility; and,
WHEREAS, the address of the property is 5966 South Dixie, South Miami, Florida 33143; and,
WHEREAS, the right -of -way is located on SW 74'h Street from SW 61 't 'Avenue to SW 59''
Court, all pursuant to the plans and specifications.
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY COMMISSION OF
THE CITY OF SOUTH MIAMI, FLORIDA THAT:
Section 1: That. the Mayor and City Commission authorize the City Manager to execute the
Right -of Way Maintenance Agreement.
Section 2: The maintenance agreement must be recorded and the recording fee shall be paid
by 64 Development Corporation.
Section 3. The attached Right -of Way Maintenance Agreement is made part of the resolution.
PASSED AND ADOPTED this �0 day of , 2008.
ATTEST: (� .&tLl�
(2?4M
C CLERK
READ AND APPROVED AS TO
Luis R'Figu o, `--
Nagin op & Figueredo, P.A.,
Office of City Attorney
APPROVED:
A OR
COMMISSION VOTE:
4 -0
Mayor Feliu:
Yea
Vice Mayor Beasley:
Yea
Commissioner Wiscombe:
Yea
Commissioner Palmer:
absent
Commissioner Beckman:
Yea
RIGHT OF WAY MAINTENANCE AGREEMENT
BETWEEN CITY OF SOUTH MIAMI AND
64 DEVELOPMENT CORPORATION
Whereas, Owner has requested, and the City has agreed, subject to the terms and conditions
in this Agreement, to grant Owner the right to construct ofF site drainage facilities on the City's
right -of -way abutting the property as described below; and,
Whereas, the address of the property is located at 5966 South Dixie, South Miami, Florida
33143; and,
Whereas, the right -of -way is located on SW 74th Street, between SW 61St Avenue and
SW 59a' Court, all pursuant to the plans and specifications; and,
Whereas,'the drainage improvements ( "drainage improvements ") consist of drain fields into
which drainage from the property shall flow; and,
Whereas, the drainage plans and specifications for the property prepared by Pistorino &
Alain Consulting Engineers have been approved by the City and Owner ( "plans and
specifications ").
Now, therefore, this Agreement is entered into this day of , 2008, by
and between the City of South Miami, Florida, a Florida municipal co ration, and 64
Development Corporation, a Florida Corporation, for itself and for its successors, assigns and
heirs (Owner), in and for the consideration of ten dollars .($10.00) and the mutual covenants
contained in this Agreement, the receipt and legal sufficiency of which is acknowledged by both
parties.
1. WHEREAS CLAUSES
1.1. The above whereas clauses are incorporated into this Agreement.
2. LEGAL DESCRIPTION OF THE PROPERTY AND RIGHT -OF -WAY
The property which is bound by this Agreement is legally described as:
LOS& DESCI@IPTIMI:
PARKA. A.
LM 9 AND 10 AND ME EAST 10.0 W OFTME$OLI "i 9555 FEET OF LOr8, BLOCK 2, "AMENDED PLAT OF Tf1E SOLOVOFF
SLIWIV1510N', ACCORDING TO THE PLAT THEREOF, AS MM0fVED IN YLAT BOOK 7, AT PAGE I I , OP THE PUSUC RSOCIRDS OF
MIAMI -DAOE COUNTY. FIDRIDA.
Aft:
ALL OF L0T G AND THAT POKWN Of LOT S DESCRIBED AS MLLOWS: I3F. HUNG AT VIE 50Uf1iAe5TERI1Y CCRNER OF LOT G.
THENCE-40 "1 30.34 fFZr: rHENCE EAST 64.9 FEET, JIJ NCF- NWH 30.34 r=- iHWC£ NORf111NESTINLY415 f=l;
THENCE r.+Oun-I4h1:5'fY7 y 50.0 fTEr TO 71112 ORIGINAL POINT Or 1912SINNING, AIL LYING IN 5WCK 2. OF "THG AMEN= PLAT OP
SOLOVOrr 5U5CJV15ION, AS P.SCORDED IN PLAT SOCK 7, AT PAS I 1 OF THE PLISLIC RECORDS OF MIAMI -1 ADE OOLIMY,
HrOQ�Ii�A. .
FAF= Be
ALL Cr UGT A BUCK S. 'S4XAV0rM SURD! VI910W. AS R= )P=D IN PLAT BOOK 7. AT PAGC 1 1, AND rtC SOZr, HWC5T 15.0
FWr OF LOT 4 MH1I01 15 THE STRIP 15.0 PICT WM AND 1 10.0 FEET LONG ADJOINING LtiT 57 OF SAID BLOCK 2: AND ALL Or
La ' 8, BLOt.'IC 2. =Wr TtM EA5T 10.0 PiET11'I9RWr, AND =MT T TIIM FOUCIWING PESCRIDW FOY M01k BMNNfNG ATTFHI:
50L1FHIV C5rCORN15RQFSAIV LOTBi THENCE RUN EA5TI RLYALCW THE SOUTH LINE. G4.9G P15 ft THENCE: NDRTHK+Ewr5wY
PARALLIS. TO THE W85T LINE OF SAID Lai-8 FOR 30.3+4 FEET; THENCE. NOKMWE57ERLY ON A PRODLICRON OF THE
NORIHEA5TEKLY UNE OF LOT G. A, OI5TAwz OF 4I .SD FEET TO Tt1E DIVIOING LINE BETWEEN LOTS' 8 AND S, THEN= ALMG THE
DIWDMG LINE 5TWPEN UM S
C. SOIJT1iW 57 LY50.0fPEf TOYHE NOT:7iiWM EItLYCORNgRor- LAT'S; T1 Ice
5OU1rMMY30ZV Ri r TO TM raNT OF 5EGIUMNG, ALL LOCATED IN 15CLOXIT'S SUBDIVISION'. ACCEDING TO THE
WCNDrD PLAT T=RCOF, A5 R=FMCD IN PEAT GOOK 7, AT PACK 1 1. OF TtC FUTiT W RCC PD5 OF fAIAMI -IX= COUNTY.
FLC>DiLL]A,
Page 1 of 8
SUBJECT TO:
2.1 All rights, reservations, restrictions, limitations and
easements of record and all zoning ordinances, restrictions,
prohibitions and other requirements imposed by
governmental authorities, without reimposing the same.
212 The right -of -way upon which the drainage improvements
are to be constructed and maintained by 64 Development
Corporation, is legally described as follows:
SW 74th Street, between SW 61" Avenue and SW 59`h Court, all
pursuant to the plans and specifications.
3. DRAINAGE IMPROVEMENTS
3.1 Owner shall construct the drainage improvements on the above - described
right -of -way consistent with the plans and specifications which were prepared by Pistorino & Alam
Consulting Engineers, dated i 1 x5 2008, and which were approved by the City on
2008, and as they may be amended and approved by the City and Owner from
time to time.
3.2 Owner shall satisfy all state, county and City plan review, permitting and
construction standards, including, but not limited to, limiting the location where drainage trenches
can be installed and specifying the standards for drainage system construction.
3.3 Owner shall maintain the drainage improvements in good repair at all times,
at its sole expense, and prevent the drainage improvements from becoming traffic and pedestrian
hazards. In the event the drainage improvements cannot be repaired owner shall promptly submit
plans and upon approval by the city and regulatory agencies replace and install at its cost a new
drainage system. The Owner shall be entitled to enter the right -of -way as necessary to perform
necessary maintenance, subject to standard permit requirements. The City shall have the right, but
not the obligation, to repair the drainage improvements upon giving the Owner 30 -days written
notice of any necessay repairs, and Owner's failure to perform the repair within an additional 30-
day period. The cost of repair shall be charged to and shall be reimbursed by the Owner within 30
days of receipt of the invoice from the City.
3.4 Owner shall have the right to enter the right -of -way for the purpose of
constructing and maintaining the drainage improvements. Owner shall secure necessary permits
from the City to perform the work and shall notify the Public Works Department of its work
schedule and work plans.
4. RESERVATION OF RIGHTS
Page 2 of 8
>01
4.1 The City reserves the right to enter upon the right -of -way at any time for
any municipal purpose, including, but not limited to, clearing accidents, maintaining the right -of-
way, and placement of telecommunication cables and equipment. The City, or its agents and
licensees, and independent contractors, shall disturb the drainage improvements as little as
possible to accomplish the municipal purpose, and shall make any and all repairs resulting
therefrom.
5. CORRECTION OF UNSAFE CONDITION
5.1 The drainage improvements shall be maintained in a safe condition at all
times by Owner. In the event the City determines that an unsafe or dangerous condition exists in
the right -of -way which is caused in whole or in part by the failure to maintain or to restore the
improvements, the City has the. right, after giving the Owner 30 -days written notice, to cure,
repair, correct or modify the drainage improvements and the affected right -of -way at the
Owner's expense.
5.2 If the City determines that the unsafe or dangerous condition is of an
emergency nature, which threatens public safety or damage to property, it may take immediate
action to remedy the situation. The City shall give notice of the emergency condition and the
corrective action to the Owner as soon as is practicable.
6. INDEMNIFICATION AND HOLD HARMLESS
6.1 Owner shall indemnify, defend and hold the City harmless for any claim,
investigation, settlement, judgment or expense, including reasonable attorney's fees and costs
necessarily incurred, arising out of or relating to any claim for death or bodily injury, property
damage, including damage to the right -of -way, or personal injury that is allegedly caused in
whole or in part by the construction and maintenance, or the failure to maintain the drainage
improvements.
7. UTILITY AND RIGHT OF WAY IMPROVEMENTS
7.1 Owner shall upgrade all storm water systems on SW 74th Street, between
SW 61" Avenue and SW 59h Court, all pursuant to the plans and specifications. to current code
requirements for both storm water quantity and quality to the extent required pursuant to
applicable City of South Miami and Miami -Dade County Codes and pursuant to the approved
plans and specifications.
7.2 Sizing of the system shall be for both the on -site needs and the needs of
the public right -of -way for the entire extent and width of the right -of -way described above,
which shall also include on SW 74th Street, between SW 61" Avenue and SW 59th Court, all
pursuant to the plans and specifications.
7.3 Owner shall upgrade other utilities within the right -of -way in accordance
with the approved plans and specifications, as amended, including, but not limited to, potable
water distribution systems, storm sewer system (drainage) and sanitary sewer systems.
Page 3 of 8
I (.
h
7.4 Owner shall upgrade the right -of -way pursuant to the approved plans and
specifications, including streetscapes, wider sidewalks, landscaping, applicable texture
pavements, and street lighting. As specified on the plans.
7.5 Street lighting, landscaping and irrigation improvements shall be
maintained by the owner. In the event any of the improvements are damaged and cannot be
repaired, owner shall replace the damaged improvements. The proposed street lighting shall be
sufficiently adequate to create a safe environment for pedestrians and vehicles. At the same
time, the brightness of the proposed street lighting shall be properly established and maintained
so that it does not become a nuisance to neighboring residents.
STORM WATER USER FEES
8.1 Owner shall be responsible for payment of Stormwater User Fees to the
extent, if any, required by the City of South Miami for the property [which shall be determined
by including the sum of the on -site and the off -site impervious square footage of the property
areas described above in paragraph 7.2.] Charges for this fee shall commence immediately after
foundation and/or impervious area has been constructed.
9. SPECIAL ASSESSMENT LIEN
9.1 Any cost incurred by the City to maintain or repair the drainage system,
either incident to an emergency action or upon the failure of the Owner to maintain or repair the
system after receipt of written notice by the City, or to correct a dangerous or unsafe condition,
or any cost incurred by the City to defend or pay any claim, investigation, settlement, judgment
or expense, including reasonable attorney's fees and costs necessarily incurred, arising out of or
relating to any claim for death or bodily injury, property damage, including damage to the right -
of -way, or personal injury that is allegedly caused in whole or in part by the construction and
maintenance, or the failure to maintain the drainage improvements shall constitute a lien against
the property. The lien shall have the status and priority of a special assessment lien, and shall
take precedence of mortgages on the property. The City shall have the right and the power to
record the lien if the cost is not paid by the Owner to the City within 30 days of issuing the
invoice for costs and to thereafter enforce the Iien by foreclosure and by any other lawful means.
10. PERPETUAL DURATION OF RIGHTS AND OBLIGATIONS
10.1 The rights, powers and obligations under this Agreement shall run with the
property into perpetuity and shall bind the successors, assigns and heirs of the Owner.
10.2 This Agreement shall be recorded in the records of Miami -Dade county
and the property shall be encumbered by this Agreement.
11. NOTICES
Page 4of8
11.1 All notices given or required under this Agreement shall be deemed
sufficient if sent by certified mail, return receipt requested, to the addresses of the Owner
specified in this Agreement, unless the Owner shall specify in writing different address for the
giving of notices.
follows:
12. CONTRACTING OFFICER REPRESENTATIVE
12.1 For the purposes of this Agreement, the contracting representatives are as
For the City of South Miami
Name: Ajiboia Balogun
Title: Public Works Director
6130 Sunset Drive
South Miami, Florida 33143
Telephone: (305) 668 -7206
Facsimile: (305) 668 -7356
For 64 Development Corporation,
Name: Eduardo Fernandes
Title: Vice President
64 Development Corporation,
4311 Ponce DeLeon Blvd
Coral Gables, Florida 33146
Telephone: (305) 663 -1293
Facsimile: (305) 665 -0272
13 JURISDICTION AND VENUE
13.1 For the purposes of this Agreement, Florida law shall govern the terms of
this Agreement. Venue shall be in Miami -Dade County, Florida.
14. NON - WAIVER OF SOVEREIGN IMMUNITY
14.1 The City does not waive sovereign immunity, and shall not be liable, for
the payment of attorney's fees or prejudgment interest.
15. INSURANCE
15.1 Owner will maintain throughout the period of this Agreement
Comprehensive General Liability insurance, All Risk insurance, Commercial Liability Insurance,
and coverage for legal liability for loss or damage to drainage improvements and the City's right -
of -way arising from negligence of Owner's employees. During construction, Owner will
maintain Builder's Risk Insurance and Worker's Compensation Insurance. The policies shall
have minimum limits no less than $1,000,000.00, and name the City as an additional insured.
16. SIGNATORY AUTHORITY
16.1 The officials executing this Agreement warrant and represent that they are
authorized by their respective agency to enter into a binding Agreement.
Page 5 of 8
i�l
IN WITNESS WHEREOF, this Agreement is accepted and delivered on the date stated
above by the following signatories.
CITY OF SOUTH MIAMI
64 Development
Property Owner
By: B By:
W. Ajibola Ba10 , City Manager [Print Name: EZO
ATTEST:
By
M. Menendez, City Clerk
APPROVED AS TO FORM
By:_( _
Nagin
City Atfo-
As: V 1 Pres "
. [Print Corporate Title]
ATTEST:
By: �
[Print Name:
As:
[Print Corporate Title]
Page 7 of 8
STATE OF FLORIDA )
) SS:
COUNTY OF MIAMI -DADS)
ACKNOWLEDGEMENT OF PROPERTY OWNER
The foregoing instrument was acknowledged before me this day of MW'
2008 by G�. x rao rno., l�S of jNpj yrer4 C61 o4:N M as
N't C -e_. Rj � , on behalf of the Property Owner, who is personally known to me or has
produced as identification.
Notary N State of Florida
Print name. � c a- RO.,q he
Commiss'
NKENGA A PAYNE
.__ MY COMMISSION # OD 714025
7 Pf •doe
EXPIRES: October 5 2011
B a
ThtU Notary PubL, Underndtm
STATE OF FLORIDA )
) ss:
COUNTY OF MIAMI-DARE)
ACKNOWLEDGEMENT OF CITY OF SOUTH MIAMI
The foregoing instrument was acknowledged before me this day o f
2008 by, W. Ajibola Balogun, City Manager, and, Maria M. Menendez, City Clerk, of the C• of
South Miami, on behalf ofthe City, who are personally known to me.
Notary P lic zac'Aau of Florida
Print name:
Commission No'.
NIENGA A. PAYNE
MY COMMISSION # OD 714025
�r EXPIRES:4ctober5,2011
BondadThtuNoteryPUblloUndetwrit ery
Page 8 of 8
_ 131HI
_!-h( ?l flivi•.'L'-'L_'�;i.T t_
0:R 01 (j
EXHIBIT "A"
AGREEMENT
BETWEEN THE CITY OF SOUTH MIAMI, FLORIDA
AND 64 DEVELOPMENT CORPORATION
THIS AGREEMENT ( "Agreement ") is made as of March 94,
2008 by and between THE CITY OF SOUTH MIAMI, FLORIDA a
municipal corporation ( "City ") and 64 DEVELOPMENT
CORPORATION ( "Company ") or its assignee.
RECITALS
WHEREAS, the city commission of the City of South
Miami desires to insure that the development of property
within the City of South Miami conforms with the city's
comprehensive plan and land development regulations and
that said development is in the best interests of the
citizens of South Miami and therefore permits the
consideration and the adoption of this agreement; and
WHEREAS, the Company owns approximately a parcel of
property approximately 31,523 square feet in size, zoned
SR(HD -OV), located at 5966 -70 S. Dixie Highway described in
Exhibit "A," (the Property "); and
WHEREAS, the Company desires to construct a mixed use
development encompassing a four story building for retail
and office use as described in Exhibit `\B," (the
"Project ") in the Hometown District Overlay Zone within the
City of South Miami; and
WHEREAS the Company submitted Application No. PB -06-
033 requesting approval for three special exceptions for lot
coverage, maximum building square footage, and curb cuts
necessary to construct the Project; and
Page 1 of 16
WHEREAS, the City Commission has determined that in
order to mitigate possible impacts of the proposed project
on the surrounding neighborhood that the Company shall
comply with the conditions set forth in this Agreement; and
WHEREAS, the Company and the City of South Miami
Public Works Department will enter into an agreement to
address in detail the Department related issues.
NOW, THEREFORE, in consideration of the above recitals
and the following covenants, terms and conditions the
receipt and sufficiency of which are expressly
acknowledged, the City and Company covenant and agree as
follows:
1. Incorporation of Recitals. The recitals set forth
above are true and correct and are incorporated herein by
this reference.
2. Property. The Company owns the property as
described in Exhibit "A ". This property shall be deemed to
be one unified parcel and is subject to the unity of title
pursuant to the requirements of sections 20.7.30 and 20-
5.14 of the City Land Development Code (the "LDC ") attached
hereto as Exhibit "C ".
3. Effective Date; Duration of Agreement. This
agreement shall become effective upon execution and shall
be recorded in accordance with paragraph 35 of this
Agreement. The maximum period for this Agreement permitted
under Florida Statute 163.3229 shall be ten (10) years from
the effective date unless extended by mutual consent of all
Page 2 of 16
legal and equitable owners of the Property and the city
upon approval at a public hearing.
4. Use of Property. The property described in Exhibit
"A" is to be utilized for the project described in Exhibit
"B ": a mixed use office and retail project. The proposed
building shall not exceed four stories or a maximum height
of fifty six feet.
The overall development of the property shall be
conducted in accordance with the approved site plan on file
at the City.
5. Public Facilities Serving the Project. In order to
enhance public facilities in the City of South Miami, and
to address the impacts of the proposed development on the
adjoining neighborhood, the Company agrees to enter into a
subsequent agreement with the City to provide improvements
in compliance with Section 20 -4.1 of the LDC, including
roadway, sanitary sewer and solid waste, prior to the
issuance of a certificate of occupancy. However, the City
may issue a temporary certificate of occupancy to the
Company if the Company has begun the work at issue and
posts a bond to insure the completion of the work.
6. Concurrency. The City of. South Miami has determined
that the Company's performance under the Agreement
satisfies the concurrency requirements, as delineated in
Section 20 -4.1, City Code. By execution of this Agreement,
the City acknowledges that the application for site plan
approval meets all concurrency regulations enumerated in
Section 20 -4.1 of the City Code, and that the site plan
application and this Agreement. are consistent with the
City's Comprehensive Plan and Land Development Regulations.
Page 3 of 16
7. Permits. The permits preliminarily identified as
necessary for development of the project are described as
follows:
(a) Special Exception to permit 26,833 square
feet floor area at the ground floor.
(b) Special Exception to provide 850 +/- lot
coverage.
(c) Special Exception to provide an additional
curb cut along the property's frontage on S.W.
59th Court.
8. Development Conditions. The following conditions
shall apply to the development of the project:
(a) The Company shall meet all applicable
building codes, land development regulations,
ordinances and other laws.
(b) The Company shall adhere to the requirements
of all permits for the project.
(c) The Company shall develop the project in
conformance with the parameters set forth in this
agreement.
(d) The Project shall be consistent with the site
plan submitted with the special exceptions
incorporated herein.
(e) The Company shall provide the Department of
Planning with a temporary parking plan, including
an operational plan, which addresses construction
employee parking during the construction period,
said plan shall include an enforcement plan and
shall be subject to the review and approval by
the planning director prior to the issuance of
Page 4 of 16
any building permits and shall be enforced during
construction activity.
f) All conditions imposed by the City Commission
as part of its approvals of the special
exceptions referenced herein shall be
incorporated in this Agreement.
g) The Company shall fund and implement traffic
calming improvements along streets abutting the
property. These improvements shall be set forth
in detail in the agreement with the City
referenced in paragraph 5 herein.
h) The Company shall cooperate with the City and
implement the conditions for the development of
the Project as set forth in the conditions of the
special exception approvals as well as this
agreement.
i) The Company shall present for Department of
Planning approval a landscape plan for the
Project. No building permit shall be issued to
the Company, for the development of the Property
prior to the City approval of the landscape plan.
All proposed landscaping within the right -of -way
abutting the property shall be submitted to the
Public Works Department for review. The Company
and its successors agree• to maintain the
landscaping and accompanying irrigation.
j) The Company shall use brick or concrete pavers
along the Property's frontage along U.S. -1.
k) The building's parking shall be available to
the general public for public parking during the
evenings and weekends subject to the Company's
Page 5 of 16
right to designate the hours of operation and
parking rates.
1) The Company shall develop an incentive program
to promote the use of Metro -Rail by all employees
during peak hours.
m) The Company in cooperation with the South
Miami departments of Public Works and Planning
shall erect directional signs and traffic
directional structures in the exits of the
parking garage and within the public right of way
to guide exiting traffic away from abutting
neighborhood roads to U.S. 1, during peak hours.
n) The Company in cooperation with the South
Miami departments. of Public Works and Planning
shall install traffic calming devices within the
abutting public right of way to assist in the
movement of traffic away from the adjacent
residential neighborhood and to U.S.1 during peak
hours.
o) The Company shall coordinate with the South
Florida Commuter Services to promote carpooling.
9. Consistency with City of South Miami Comprehensive
Plan and Land Development Regulations. The city has adopted
a Comprehensive Plan and Land Development Regulations in
accordance with Chapter 163, Part II, Florida Statutes. The
city finds that the project is consistent with the city's
comprehensive plan and the city's land development
regulations. The project, a mixed use retail and office
development, as set forth herein, is consistent with the
"Mixed -Use Commercial /Residential (Four Story)" designation
on the future land use map, and the HD -OV zoning district
Page 6 of 16
on the Official Zoning Atlas of the City of South Miami.
Goal 2 of the Future Land Use Element identifies the
defines the home town district which consists of the
"Hometown District Overlay Zone," as defined in Article
VII, sections 20 -7.1 through 20 -7.52 of the city's land
development regulations.
10. Vesting. As long as the development on the
Property is in compliance with this Agreement, and all
applicable laws, ordinances, codes and policies in
existence at the time of the execution of the Agreement as
well as other requirements imposed by the City Commission
upon the ratification of the site plan approval on the
Property, the Property shall not be the subject of a down
zoning application by the City and shall not be subject to
any development moratorium, referenda action, ordinances,
policies, or procedures enacted by the City that limits the
development contemplated by this Agreement and depicted in
the site plan. Any failure by this Agreement to address a
particular permit, condition, term or restriction shall not
relieve the Company of the necessity of complying with the
law governing said permitting requirements, conditions,
terms or restrictions.
11. Permits, Conditions, Terms and Restrictions not
Addressed. The failure of this agreement to address a
particular permit, condition, term or restriction shall not
relieve the Company or the city of the necessity of
complying with the law governing said permitting
requirements, conditions, terms, or restrictions.
Page 7 of 16
12. Duration of Permits. The Company acknowledges that
this agreement does not extend the duration of any permits
or approvals.
13. Law Governing Development of the Property. The
ordinances, policies and procedures of the City of South
Miami concerning development of the property that a.re in
existence as of the execution of this agreement shall
govern the development of the property for the duration of
the term of this agreement No subsequently adopted
ordinances, policies, or procedures shall apply to the
property except as provided by law..
14. Termination. Prior to commencement of construction
of the Project, this agreement may be terminated by mutual
written consent of the city and Company, subject to the
terms and conditions herein. Either party may terminate
this Agreement if the other party commits or allows to be
committed any material breach of this Agreement. A
` Nmaterial breach" of this Agreement shall include, but not
be limited to, a failure of either party to perform any
material duty or obligation on its part for any thirty (30)
consecutive day period. Neither party may terminate this
Agreement on grounds of material breach of this Agreement
unless it has provided written notice to the other party of
its intention to declare a breach and to terminate this
Agreement (the "Notice to Terminate ") and the breaching
party thereafter fails to cure or take steps to
substantially cure the breach within sixty (60) days
following the receipt of such Notice to Terminate, with the
exception of monetary breaches which shall be cured within
thirty (30) after receipt of notice.
Page 8 of 16
15. Assignment. This Agreement may not be assigned by
the Company except to an affiliated entity, without the
prior written consent of the City. Subject to the preceding
sentence this Agreement shall be binding upon the
successors, assigns, and representatives of the parties
hereto. An affiliated entity is an entity of which 64
DEVELOPMENT CORPORATION or a majority of its shareholders,
directly or indirectly owns at least 510 of the beneficial
interest.
16. Work Force. The Company agrees to use its best
efforts to enhance job opportunities for local citizens in
connection with the project. To that end and in order to
maximize job opportunities for applicants from South Miami,
the Company shall send notice to, the Community
Redevelopment Agency Director of the City of South Miami,
or a substitute designee by the City Manager, regarding
employment opportunities related to any (1) construction
work on the Property, (2) temporary or permanent
maintenance work on the Property, or (3) proposals for
leasing of retail space or employment opportunities
associated with retail space located on the Property.
17. Joint Preparation. This agreement" has been drafted
with the participation of the city and Company and their
counsel, and shall not be construed against any party on
account of draftsmanship.
18. Binding Effect. The burdens of this agreement
shall be binding upon, and the benefits of this agreement
shall inure to, all successors in interest to the parties
of this agreement.
Page 9 of 16
19. Captions and Headings. Paragraph headings are for
convenience only and shall not be used to construe or
interpret this agreement.
20. Applicable Laws, Jurisdiction, and Venue. This
agreement shall be governed by and interpreted, construed,
and enforced in accordance with the laws of Florida without
regard to principles of conflicts of law. Venue for any
litigation pertaining to the subject matter hereof shall be
exclusively in Miami -Dade County Florida.
21. Enforcement. In any litigation arising out of this
agreement, the prevailing party shall be entitled to
recover its costs and attorneys fees. Attorney's fees
payable under this paragraph shall not exceed 250 of the
amount of damages awarded to the prevailing party and no
party shall be entitled to pre - judgment interest. In any,
injunctive or other action not seeking damages under this
paragraph, legal fees may be awarded in the discretion of
the court, but shall be reasonable and shall not exceed an
hourly rate of $300.00 per hour.
22. Inspection. Nothing in this Agreement shall be
construed to waive of limit the City's governmental
authority as a municipal corporation and political
subdivision of the State of Florida. The Company therefore
understands and agrees that any official inspector of the
City of South Miami, or its agents duly authorized, have
the right to enter, inspect and investigate all activities
on the premises to determine whether the Property complies
with, applicable laws including but not limited to building
and zoning regulations and the conditions herein.
Page 10 of 16
23. Authorization to Withhold Permits and Inspections.
In. the event the Company is obligated to make payments or
improvements under the terms of this Agreement and such
payments are not made as required, or such improvements are
not made as required, in addition to any other remedies
available, the City of South Miami is hereby authorized to
withhold any further permits on the portion of the Property
failing to comply with this Agreement, and refuse any
inspections or grant any approvals, with regard to that
portion of the. Property until such time this Agreement is
complied with.
24. Representations of the Company. The Company
represents to the City as follows:
(a) The execution, delivery and performance of
this Agreement and all other instruments and
agreements executed in connection with this
Agreement have been properly authorized by the
Company and do not require further approval by
Company.
(b) This Agreement has been properly executed,
and constitutes the Company's legal, valid and
binding obligations, enforceable against Company
in accordance with its terms.
(c) There are no actions, suits or proceedings
pending or threatened against or affecting the
Company before any court or governmental agency
that would in any material way affect Company's
ability to perform this Agreement:
(d) The Company shall not act in any way
whatsoever, directly or indirectly, to cause this
Page 11 of 16
Agreement to be amended, modified, canceled, or
terminated, except pursuant to its express terms,
and shall take all actions necessary to ensure
that this Agreement shall remain in full force
and effect at all times.
(e) The Company has the financial capacity to
pay or advance to the City all fees and payments
as required under this Agreement.
25. Severability. In the event that any of the
covenants, agreements, terms, or provisions contained in
this agreement shall be invalid, illegal, or unenforceable
in any respect, the validity of the remaining covenants,
agreements, terms, or provisions contained herein shall be
in no way affected, prejudiced, or disturbed thereby.
26. Waivers. No failure or delay by the Company or the
City to insist upon the strict performance of .any covenant,
agreement, term or condition of this Agreement, or to
exercise any right or remedy consequent upon the breach
thereof, shall constitute a waiver of any such breach or
any subsequent breach of such covenant, agreement, term or
condition. No covenant, agreement, term, or condition of
this Agreement and no breach thereof shall be waived,
altered or modified except by written instrument. No waiver
of any breach shall affect or alter this Agreement, but
each and every covenant, agreement, term and condition of
this Agreement shall continue in full force and effect with
respect to any other then existing or, subsequent breach
thereof.
27. Annual Report and Review. It shall. be the
responsibility of the Company to submit an annual report to
Page 12 of 16
the City. This agreement shall be reviewed annually on the
anniversary of the effective date of this agreement. The
Company, or its assign, shall submit an annual report, at
least 30 days prior to the annual review date. This report
shall contain a section -by- section listing of what
obligations have been met and the date finalized, as good
faith compliance with the terms of the agreement. The city
commission shall review the annual report at a public
meeting. If the City Commission finds, on the basis of
substantial competent evidence, that there has been a
failure to comply with the terms of the Agreement, the
Agreement may be revoked or modified by the City. The
obligation to submit an annual report shall conclude upon
the date on which the agreement is terminated.
28. Notices. Any notices or reports required by this
agreement shall be sent to the following:
For the City: City Manager
City of South Miami
6130 Sunset Drive
South Miami, Florida 33143
Copy to: Planning Director
Planning and Community
Development Department
City of South Miami
6130 Sunset Drive
South Miami, Florida 33143
For the Company: 64 DEVELOPMENT CORPORATION
Attn: Marcelo Fernandes
4311 Ponce De Leon Boulevard
Coral Gables, Florida 33146
Copy to: W. Tucker Gibbs, Esq.
215 Grand Avenue
Coconut Grove, Florida 33133
Page 13 of 16
29. Exhibits. All exhibits attached hereto contain
additional terms of this agreement and are incorporated
herein by reference.
30. Amendment. This agreement may be amended by mutual
written consent of the city and Company so long as the
amendment meets the requirements of the act, applicable
city ordinances and Florida law.
31. Entire agreement. This agreement represents the
entire agreement and no prior or present agreements or
representations shall be binding upon either the city or
Company, unless specifically incorporated herein by
reference, whether such prior present agreements have been
made orally or in writing. Each party affirmatively
represents that no promises have been made to that party
that are not contained in this Agreement, and the Exhibits,
and stipulates that no evidence of any promises not
contained in this Agreement, and the Exhibits, shall be
admitted into evidence on its behalf. This Agreement shall
not be supplemented, amended or modified by any course of
dealing, course of performance or uses of trade and may
only be amended or modified by a written instrument duly
executed by officers of both parties.
32. Third Party Beneficiary. This Agreement is
exclusively for the benefit of the parties hereto and.their
I
Affiliates. and it may not be enforced by any party other
than the parties to this Agreement and shall not give rise
to liability to any third party other than the authorized
successors and assigns of the parties hereto.
Page 14 of 16
33. Periods of Time. Whenever any determination is to
be made or action is to be taken on a date specified in
this Agreement, if such date shall fall on a Saturday,
Sunday or legal holiday, then in such event said date shall
be extended to the next day which is not a Saturday, Sunday
or legal holiday.
34. Counterparts. This Agreement may be executed
(including by facsimile) in one or more counterparts, and
by the different parties hereto in separate counterparts,
each of which when executed shall be deemed to be an
original but all of which taken together shall constitute
one and the same agreement.
35. Recordation.. Within 20 days after the Agreement
has been signed by both the Company and the City, the
Applicant shall cause a copy of the Agreement to be
recorded at the Applicant's expense in the registry of
deeds in Miami -Dade County.
PASSED AND DULY ADOPTED by the y commission of the
City of South Miami, Florida, this of March, 2008.
SIGNATURES ON FOLLOWING PAGE
Page 15 of 16
ATTEST:
r
UTY CLERIK—
READ AND APPROVED AS TO FORM:
r
� a
I Y ATTORNEY
- -
APPROVED:
AGREED TO this IgAday of March, 2008.
Witnesses:
64 DEVELOPMENT MORPORATION
IV
tt Preside
P int NameN(Z'il
7
Print Name,itv;l �_, /L Er ",i`•..,
STATE OF FLORIDA, 00041 TY CIF An � ?a -T.-
i HEREBBY7Y met this Is Y
pd and Ih th ofrlcf"on dap
� � 2Q
STATE OF FLORIDA )
COUNTY OF MIAMI -DADE )
The foregoing instrument was
2008
ely known to me or who
ii
of the corporation.
My coihission expires:
,AD
Seal _
HARVEY
ack6owledged before me this
by MCLr(efb 42l11God� who is
produced
as identification, on behalf
Page 16 of 16
PUBLIC - STATE OP rLOFJDA
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=. .. DD6 4436._
FEB. 26, 2011
rai'i'i u BONDING CO., INC.