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03-03-09 Item 26South Miami Oftedca City CITY OF SOUTH MIAMI 111111 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: Sanford A. Youkilis, Acting Planning Director Date: March 3, 2009 ITE No. AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA REVOKING A DEVELOPMENT AGREEMENT PURSUANT TO FLORIDA STATE STATUE 163.3225 FOR A UNIFIED DEVELOPMENT PROJECT PREVIOUSLY KNOWN AS "PROJECT SUNSET" AND NOW IDENTIFIED AS THE "FIRST ON SUNSET " PROJECT WHICH INCLUDES THREE BUILDINGS UP TO FOUR (4) STORIES IN HEIGHT WITH A NON - RESIDENTIAL FLOOR AREA RATIO OF .45 AND THE FOLLOWING USES: 108 MULTI - FAMILY RESIDENTIAL UNITS, RETAIL USES, OFFICE USES, RESTAURANTS, BANK AND PARKING GARAGES; ALL FOR PROPERTY LOCATED GENERALLY AT 5750 SUNSET DRIVE AND LEGALLY DESCRIBED AS LOTS 6 THRU 9, 40 THRU 45, 53 THRU 66 INCLUSIVE AND THE EAST 50 FEET OF LOTS 51 AND 52 OF W. A. LARKINS SUBDIVISION ACCORDING TO THE PLAT THEREOF RECORDED IN PLAT BOOK 3 AT PAGE 198 OF THE PUBLIC RECORDS OF MIAMI -DADE COUNTY; PROVIDING FOR SEVERABILITY; PROVIDING FOR ORDINANCES IN CONFLICT; AND PROVIDING AN EFFECTIVE DATE STATUS OF REVOCATION ACTION The above ordinance revoking the First on Sunset Development Agreement was approved on first reading by the City Commission at its February 17, 2009 meeting. During that meeting it was determined that there were technical corrections and minor amendments which needed to be corrected as part of second reading. AMENDMENTS LISTED The following amendments should be made: (1) Add a fourth WHEREAS clause to clarify that the Development Agreement was modified in June, 2005 and it is that Agreement which is being considered for revocation. It would read as follows: WHEREAS, the Citv Commission at its June 14, 2005 meeting adopted Ordinance No. 18- 05 -1840 which adopted a revised and new Development Agreement; the sections of the agreement which were revised pertained to project phasing and the concurrence fee owed to the City; and 2 (2)Adjust the seventh WHEREAS clause to correct the date when the agreement was filed. It would read as follows "WHEREAS, the applicant on February 7, 20098 did file the Development Agreement in the registry of deeds in Miami -Dade County; and" (3) Adjust the wording of the ninth WHEARAS clause to clarify that the Development Agreement was modified in June, 2005 and it is that Agreement which is being considered for revocation. "WHEREAS, the annual report was reviewed by the City Commission at its February 3, 2009 meeting at which time the Commission adopted a motion to revoke and terminate the existing Development Agreement as approved by Ordinance No.05 -05 -1827 on March 15, 2005 as modified by the adoption of Ordinance No. 18 -05 -1840 on June 14,2005; and" (4) Adjust the wording of Section 1 to correct the date when the agreement was filed. It would read as follows Section 1 That a,Development Agreement, attached as Exhibit "A" and dated February 7, 200 8 between the City of South Miami and the South Miami Corporation pertaining to a 4.5 acre proposed unified development project as legally described above and previously known as "Project Sunset" and now identified as the . "First on Sunset" Project is hereby revoked and terminated. Attachments: Draft ordinance, Letter from Jerry Proctor dated 2124109 Feb. 3, 2009 CM Report on the annual report, Development Agreement (as filed in Feb. 2008) SAY X: \Comm Items\2009\3- 3- 09\Memo to City Manager -Red Rd Annual Report .doc ORDINANCE NO. AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA REVOKING A DEVELOPMENT AGREEMENT PURSUANT TO FLORIDA STATE STATUE 163.3225 FOR A UNIFIED DEVELOPMENT PROJECT PREVIOUSLY KNOWN AS "PROJECT SUNSET" AND NOW IDENTIFIED AS THE "FIRST ON SUNSET " PROJECT WHICH INCLUDES THREE BUILDINGS UP TO FOUR (4) STORIES IN HEIGHT WITH A NON- RESIDENTIAL FLOOR AREA RATIO OF .45 AND THE FOLLOWING USES: 108 MULTI - FAMILY RESIDENTIAL UNITS, RETAIL USES, OFFICE USES, RESTAURANTS, BANK AND PARKING GARAGES; ALL FOR PROPERTY LOCATED GENERALLY AT 5750 SUNSET DRIVE AND LEGALLY DESCRIBED AS LOTS 6 THRU 9, 40 THRU 45,53 THRU 66 INCLUSIVE AND THE EAST 50 FEET OF LOTS 51 AND 52 OF W. A. LARKINS SUBDIVISION ACCORDING TO THE PLAT THEREOF RECORDED IN PLAT BOOK 3 AT PAGE 198 OF THE PUBLIC RECORDS OF MIAMI -DADE COUNTY; PROVIDING FOR SEVERABILITY; PROVIDING FOR ORDINANCES IN CONFLICT; AND PROVIDING AN EFFECTIVE DATE WHEREAS, the Florida Local Government Development Agreement Act, set forth in sections 163.3220- 163.3243, Florida Statutes, provides for the execution of development agreements to insure that the law and regulations in effect at the time of the execution of the development agreement shall govern the development of the land for the duration of the agreement; and WHEREAS, in 2005 the South Miami Corporation requested approval of a Development Agreement for a 4.5 acre proposed unified development to be called "Project Sunset" and now identified as the "First on Sunset" project, which will include a total of 108 dwelling units and 87,212 square feet of commercial space on property located generally at 5750 Sunset Drive and legally described as Lots 6 thru 9, 40 thru 45, 53 thru 66 inclusive and the east 50 feet of Lots 51 and 52 of W. A. Larkins subdivision according to the plat thereof recorded in plat book 3 at page 198 of the public records of Miami -Dade County; and WHEREAS, the City Commission at its March 15, 2005 meeting adopted Ordinance No.05 -05- 1827, which approved a Development Agreement for "Project Sunset "; and WHEREAS, the Development Agreement was executed by the City of South Miami and the South Miami Corporation on December 26, 2007; and WHEREAS, Section 35 of the Development Agreement requires the applicant within 20 days after signing to file the Agreement in the registry of deeds in Miami -Dade County; and WHEREAS, the applicant on February 7, 2008 did file the Development Agreement in the registry of deeds in Miami -Dade County WHEREAS, pursuant to Section 27 of the Development Agreement the applicant on January 8, 2009 filed with the City a required annual report; and WHEREAS, the annual report was reviewed by the City Commission at its February 3, 2009 meeting at which time the Commission adopted a motion to revoke and terminate the existing Development Agreement as approved by Ordinance No.05 -05 -1827 on March 15, 2005; and 1 2 3 4 5 6 7 8 9 10 11 12 13 14 47 48 49 50 51 WHEREAS, Florida State Statute 163.3225 (1) requires that a local government to conduct two public hearings before revoking a development agreement; and WHEREAS, all of the requirements for notice of the public hearings as set forth in Florida State Statute 163.3225 (2)(a)(b) have been implemented. NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND THE CITY COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA: Section 1 That a Development Agreement, attached as Exhibit "A" and dated February 7, 2007 between the City of South Miami and the South Miami Corporation pertaining to a 4.5 acre proposed unified development project as legally described above and previously known as "Project Sunset" and now identified as the "First on Sunset" Project is hereby revoked and terminated. Section 2 If any section, clause, sentence, or phrase of this ordinance is for any reason held invalid or unconstitutional by a court of competent jurisdiction, this holding shall not affect the validity of the remaining portions of this ordinance. Section 3 All ordinances or parts of ordinances in conflict with the provisions of this ordinance are hereby repealed. Section 4 This ordinance shall be effective immediately after the adoption hereof. PASSED AND ADOPTED this ATTEST: CITY CLERK 1" Reading — 2nd Reading — READ AND APPROVED AS TO FORM: CITY ATTORNEY Attachment: Exhibit"A" Development Agreement day of , 2009 APPROVED: MAYOR COMMISSION VOTE: Mayor Feliu: Vice Mayor Beasley: Commissioner Palmer: Commissioner Beckman: Commissioner Newman: Ct-o�- Biizin. Sumberg ATTORNEYS AT LAW Jerry B. Proctor, Esq. Tel 305.350.2361 Fax 305.3512250 jproctor@bIWn.com February 24, 2009 Hand Delivery Mr. W. Ajibola Balogun, REM, CFEA City Manager City of South Miami 6130 Sunset Drive South, Miami, Florida 33143 Re: Ordinance to Revoke Development Agreement/South Miami Corporation Second Reading: March 3, 2009 Dear Mr. Balogun: We wish to correct certain elements contained in the City Staff report dated February 3, 2009 on the above captioned matter and to address concerns raised by members of the City Commission on first reading on February 17, 2009. 1. The City Staff report only refers to one development agreement, when in fact there are two separate agreements. The first development agreement was approved by the City Commission on March 14, 2005 and signed by South Miami Corporation on April 6, 2005. To our knowledge, the first development agreement was not recorded. 2. A second development agreement, which amended portions of the first development agreement, was approved by the City Commission on June 14, 2005. It is the second development agreement which is attached to the current ordinance to revoke and marked as Exhibit "A ". 3. It was brought to our client's attention by Julian Perez and Sandford Youkilis in September, 2007 that the second development agreement had not been prepared by the City, or signed or recorded. Our client agreed to cooperate with the City to rectify this situation. 4. A draft of the second development agreement was provided by Mr. Youkilis to us by email on December 7, 2007, a copy of which is attached. You will note that in this email, Mr. Youkilis advised us to have the agreement signed by our client, and thereafter to return it to the City for signing. Consistent with the requirements of State law, Mr. Youkilis stated in his email that "the City will then file the document with the County and forward it to the State DCA ". MIAMI 1754756.1 7681329325 2124109 2 :36 PM BILZIN SUMBERG BAENA PRICE & AXELROD LLP 200 S. Biscayne Boulevard, Suite 2500, Miami, FL 33131 -5340 Tel 305.374.7580 Fax 305.374.7593 www.bilzin.com February 24, 2009 Page 2 5. The second development agreement was signed by our client on December 26, 2007, and forwarded to the City Attorney by letter dated January 2, 2008 (copy attached). At that time, the second development agreement had not been signed by the City. 6. In reliance upon the statutory requirements together with Mr. Youkills' express undertaking to record the agreement, we stated in our January 2, 2008 letter: "Pursuant to our recent meetings, the next step is for your office to forward the agreement to the State of Florida Department of Community Affairs and record in the public records." 7. We were advised by the City Attorney on February 5, 2008 that the second development agreement had just been signed by the City and that it was going to be recorded by the City forthwith. B. The second development agreement was recorded. by the City on February 7, 2008. 9. At no time has South Miami Corporation received any notice of breach or termination of the second development agreement from the City. South Miami Corporation was not made aware that the second development agreement had not been signed until September, 2007, when the City brought the matter to its attention, and has cooperated fully with the City thereafter. Sincerely, Jerry . Proctor JBP: id cc: Sandford Youkilis, Interim Planning Director, City of South Miami Luis Figueredo, Esq., City Attorney, City of South Miami M1AM1 1754756.1 7681329325 2/24/09 2:36 PM �� BILZIN SUMBERG BAENA PRICE & AXELROD LLP Jerry Proctor From: Youkilis, Sanford jSYoukilis @cityofsouthmiami.netj Sent: Friday, December 07, 2007 4:12 PM To: Jerry Proctor Cc: Perez, Julian; Figueredo, Luis Subject: Bank Project interlocai Agreement Up -dated Attachments: Development Agreement 12- 6- 07.doc Please review up -dated agreement and have It signed; Return to the City for signing; City will then file the document with the County and forward to the State DCA. Sandy Y. 2/25/2009 Yage 1 of 1 i; iC Bilzin Sumber g ATTORNEYS AT LAW JERRY B. PROCTOR, ESQ. Direct Dial: (305) 350 -2361 Direct Facsimile:(305) 351 -2250 E -mail: jproctor @bilzin.com January 2, 2008 Via Federal Express Luis Figueredo, Esquire City Attorney, City of South Miami 18001 Old Cutler Road, Unit 556 Palmetto Bay, Florida 33157 Re: First National Bank of South Miami Property: 5750 Sunset Drive and Adjacent Blocks to South and Southwest Dear Luis: Enclosed please find the executed Development Agreement for the above - styled project. Pursuant to our recent meetings, the next step is for your office to forward the Agreement to the State of Florida Department of Community Affairs and record it in the public records. Please advise if you would like for our firm to cover the recordation costs. Thank you for your cooperation. Best wishes for the New Year. Sincerely, Jerry B. roctor JPB: id Encl. cc: T. Alien Eagleson Arnie Piechocki Allison Schmitt Julian Perez, Planning Director, City of South Miami w Ike- 0� L s j--. � � MIAMI 14745 53.1 7449629459 1/2/08 BILZIN SUM$ERG BAENA PRICE & AXELROD LLP www.tilZin.Gorr! 9nn S Ricr:avne Boulevard. Suite 2500. Miami, FL 33131 -5340 Tel 305.374.7580 Fax 305.374.7593 BMn Sumberg A T T O R N E Y S AT LAW Via Hand Delivery Mr. Ajibola Balogun City Manager City of South Miami 6130 Sunset Drive South Miami, Florida 33143 Dear Mr. Balogun: Jerry B. Proctor, Esq. i ci 305.350.2361 3x 305.351.2250 jproctor @bilzin.com Re: South Miami Corporation Property: 5750 Sunset Drive and 1 -112 blocks to the south and southwest, City of South Miami Annual Report of Development Agreement This law firm represents the owner, South Miami Corporation ( "Owner "), of the property located at 5750 Sunset Drive and the 1 -1/2 blocks to the south and southwest, South Miami, Florida ( "Property "). -The Owner and the City of South Miami ( "City ") entered into a Development Agreement ( "Agreement') related to the development of the Property. The Development Agreement, a copy of which is attached as Exhibit "A ", was approved by the City Commission and was recorded in the Public Records on February 7, 2008. In accordance with Section 27 of the Agreement, the Owner is required to submit an Annual Report to the City. Please accept this correspondence as the Annual Report. 1. Use of Property. The Owner received approval by the City Commission in 2005 (the "2005 Application ") for a mixed use development consisting of retail and office space and residential units at a maximum building height of 56 feet. The terms for approval are described in the Development Agreement, and remain in full force and effect. Development of the Property under the approved plans has not commenced since the recordation of the Development Agreement. 2. Future Use A Property: The Owner applied to the City in August, 2008 for an amendment to the Development Agreement (the "2008 Zoning Application ") to permit the review and approval of revised plans for the Property, and to permit "Special Exceptions" regarding the amount of lot coverage by buildings or) the Property and the number of proposed drive - through bank teller windows. The Zoning Application is attached hereto as Exhibit "B ". The Zoning Application was approved by the Planning Board on October 28, 2008 and awaits final action by the City Commission. BILZIN SUMBERG BAENA PRICE & AXELROD LLP 200 S. Biscayne Boulevard, Suite 2500, Miami, FL 33131 -5340 Tel 305.374.7580 Fax 305.374.7593 MIAMI 1721319.1 7681329325 1/9/09 www.bilzin.com Page 2 January 8, 2009 3. Commitments: The Owner intends to comply with all permitting and infrastructure requirements enumerated in the Development Agreement. 4. Compliance: The 2005 Application and the 2008 Zoning Application meet all concurrency requirements, pursuant to Section 6 of the Development Agreement, and are consistent with the City of South Miami Comprehensive Plan, pursuant to Section 9 of the Development Agreement. 5. Assignment: The Owner has not assigned the Development Agreement to another entity and is in compliance with Section 15 of the Development Agreement. 6. Owner's Representations. The Owner affirms the representations made to the City in Section 24 of the Development Agreement. In summary and as documented above, the Owner is diligently pursuing development of the Property and has met or commits to satisfying all of the obligations set forth in the Agreement. Thank you for your attention to this matter and please do not hesitate to contact me if you have any questions or require any additional information. Sincerely, Jer B. Proctor JBP:id cc: Sandy Youkilis, Acting Planning Director Luis Figueredo, Esq., City Attorney Arnie Piechocki Allen Eagleson Allison Schmitt MIAMI 1721319.1 7681329325 2 1/8/09 BILZIN SUMBERG BAENA PRICE & AXELROD LLP "111!111 ititl Iltll Itlll t1111l111t Illli 1lII Itll 2t>Oi313BO - 41i (2 OR Bk 26203 F9s 1320 - 14011 �22D95 RECORDED 02/07/200B 10:53:06 HARVEY RUVIN, CLERK 0 MIAMI-DADE CDUHTYr FLORIDA DEVELOPMENT AGREEMENT BETWEEN THE CITY OF SOUTH MIAMI FLORIDA • AND SOUTH MIAMI CORppp,ATION is made as of THIS DEVYLOP)COT pyXHr . .( "Agreement ") Una ,, 200.5 by and between THE CITY OF e oration ( "City ") and SOUTH MIAMI, FLORIDA.a municipal cor SOUTH MIAMI CORPORATION (`Company ") or its assignee: RECITALS pgEAFa4, the Florida Local Government Development set forth in sections 163.3220 - 163.3293. Agreement Act, the "Act ") Florida Statutes, set forth in Exhibit A •, ( provides for the execution of development agreements for a ins — -ea =s to insure that the'law - "in term not to exceed ten (10 ) _y effect at theiti t e executio t-he �evelopinent agreement shall govern the development of the land for the - -- - - - -- duration of the agreement; and - -- ---Tj the city commissionof "the �1 1827 which implements Miami has adopted Ordinance No. 05 -05 - the Act and permits the consideration and the adoption of - this agreement; and.------.- - - -- _ -- -- the Company owns appr oximately 4.5+/-.acres, -zoned HD -OV, described in Exhibit "B," (the "Property"); and BAs, the-Company desires to construct a mixed use development encompassing retail, office and residential (the "Project ") in the components described in Exhibit "C.Ar ��th -- wn'" D t— Hest= 1'p�Lr►�e= wit- hrr=th�=C =i -- _ Miami. Page 1 of 17 EXHIBIT "A" page 1 of 22 CFN #20080104490 NOS, Tgpp�E, in consideration of the above recitals and the following covenants, terms and conditions the receipt and sufficiency of which are expressly agree as acknowledged, the city and Company covenant and follows: citals. The recital 1. Incorporation of Re s set forth above are true and correct and are incorporated herein by this- reference- 2. prop,rty. The Company owns the property as rty is deemed to be one described in.Exhibit "A ". This prope unified parcel and is subject f sectionst20.7- 30tand 20- pursuant to the requirements of attached Land Development Code (the "LDC ") 5.19 -of the City hereto as Exhibit 'D "• Dura been recorded tion o£ Agreement. This 3. Effective Dato; agreement shall become effective after it has in the public records of Miami -Dade County and thirty (30) days after it is received by the Florida Department of -�� - . This agreement te ") Community Affairs (the "Effective Da shall terminate ten years from the effective date of this agreement, unless, otherwise extended or terminated las of provided for herein or in the act'peeffective this agreement shall be ten (10) y ears from the date unless extended by mutual consent of all legal and equitable owners of the Property and the city upon approval at a public hearing, as provided in the act. IIs� of �ropertg. The property described in Exhibit ibed in Exhibit "A" is to be utilized for the project descr -co: a mixed use residential, office and retail project on with a residential use not to exceed 108 dwelling units Page 2 of P �,(J nJ4 Rnnk ?62031Page1381 CFN #20080104490 Page 2 of 22 :r acres. The project will include + approximately 4.5 /- "chamfered" corners where it abuts roadway intersections „ pursuant to Exhibit "c". The occupied sp ace of the project will not exceed four stories or fifty six (56) feet in height unless otherwise permitted by the South Miami comprehensive p P plan or its land development regulations. The total of occupied space of the project shall not exceed imum four stories. Non - occupied space shall not exceed a max ntwo height of fifty six feet. The project phases as follows: „ d •_�_••B" Phase I shall consist of Blocks A an described in Exhibit "C ". Phase II shall consist of Block zB" "C•• described in Exhibit "C ". • �"*"�'an mtY olect to a =lambemt the The ' y _ �clewlopment plan in on• phase. ms elect to vtilize Block "C" as a • The tampon Dank facility rith drive- through lanes (not to axcwd four lanes) which Ifacility shall Ca ficate n._ the .is,eu _nci of the -- facilit on Block "A ". o f Occv an for the Bank The overall development of the property shall be __ _ - plan on file conducted in accordance with the approved site a -t- the City, (attached and incorporated as Exhibit "B ") including elevations, architectural features and estimated commercial square footage pursuant to Section 20.3 -7, of the LDC . g the Pro ect. In order to public Facilities 5 ry n _ - - �ras�� --� �- - enhance public facilities in the City of South Miami, the r,- _ i_,r_rnn,-2 IDona'i `�R9 Page 3 of 17 CFN##20080104490 W'At1k., Page 3 of 22 Company agrees to provide the services listed below in compliance with Section 20 -4.1 of the LDC, including: (a) Roadways An operational traffic study was conducted. by the city and the Company agrees to the recommendations of city staff as set forth in their staff report which recommendations are incorporated herein by reference. (b) Parks and Recreation o ulation Based on the projected residential p P on the Property, Company agrees to donate $232 000 in -- --- one lump eum as its •-rasyonaibility for meet ark and recreation concurren pa nt shall be made on or before recai t of the first rmit and shall include sn interest buildi the city_ until or cas in cost incurred by receipt of the payment." - - - - - -- (c) Sanitary Sewers p y with all Water and Sewer services that com 1 requirements of Miami -Dade County for any building prior to issuance of a final Certificate of Use and Occupancy. page 4of 17 A- )2-1171.7 rPNw9no80104490 Page 4 of 22 1(d) Solid Waste with all Solid Waste services that comply requirements of Miami -Dade County for , any building prior to issuance of a final Certificate of Use and Occupancy. (e) Schools The Company commits pay upon the issuance f occupancy any of the initial certificate o required Miami -Dade County School Board school impact fees. 6, Concurrenc• The City of South Miami has determined l' under the Development that the Company's performance Agreement satisfies the concurrency requirements, as City Code. By execution -of delineated in Section 20 -4.1, es..tha -t•• :the — application this Agreement -, -- the— Git��--- a�eknowledg rova� meets a�� concurxency regulations ff for site plan aPP and that the enumerated in Section 20 -4.1 of the City Code, Agreement are consistent site plan application and this 9 meet -- Comp -r- eh- ensi - -ve� yaaidI,.a =nd_ D'e�r,el9p. -with _:. _.th.e,.�...C.i�y Regulations. 7. � rmits, The permits preliminarily identified as _ -of the project are described as necessary for development follows: - to four drive - (a) Special Exception p through teller lanes within the site. (b) Special Exception to provide 72.2% +/- lot coverage. to four (c) Special Use permit to PeZ"'lt up restaurants with a maximum total 13,820+/ restaurants square feet with parking to be supplied Page 5 of 17 page 5 of 22 A A rr�Nt�t ?0080104490 . excess parking within the site. Retail and restaurant parking shall be marked and signed. g, Development conditions. The following conditions ment of the protect: shall apply to the develop a licable (a) The Company shall meet all PP building odes, land development regulations, g 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 t forth in this conformance with the parameters se agreement. •(d) All development shall be in accord with the site plan submitted with the special exception and. special use applications, said site plane ,— -• - -- fiovide the Department of e) The Company shall pr Planning with a temporary parking plan, including _ se "opex.� ona:1 =R _,� cyaddes's=ont�ion during the construction period, employee parking ement plan and said plan shall include an enforc shall be subject to the review and approval by the plann3.ng director prior to the issuance of any building permits and shall be enforced during construction activity. f) All conditions imposed by the City Commission shall be incorporated in this Development - Agreement. g) Company shall reimburse the City its lost parking revenue from any metered parking spaces Page 6 of 17 n.,..o� Page 6 of 22 "ARr (FN #20080104490 adjacent to the property which it occupies. or uses .during the construction period. shall donate to_ a city trust. fund h) The Company the be used by e city for traffic $90,000.00 to mitigation' programs calming or other traffic mitig within the City of South Miami. This money shall be donated to the City , prior to the issuance of its first building permit- 9. Consiatrncy with City Of south Miami comprehensive Development Rsqulatioiie . The city has adopted Plain and �� ulations in a Comprehensive Plan and Land Development Statutes. The accordance with Chapter 163, Part II, city finds that the project is consistent with the city's and the city rs land development comprehensive plan office regulations The'- project, --a--mixed--use- a mixed- use re sidential, t-- i'f�eve m pct; with the "Mixed -Use commercial /Residential and (Four the story) HD-0V designation on the future land use ma P, - — - y - -. - - .< - .� i .- _ At'1°as -of �thez;C -mot o . gtrict'�on the O`f�icial Z`on'i-ng -` 2 of the Future Land- Use Element South Miami. Goal which identifies the defines the home town district "Hometown District Overlay Zone," as consists of the a� efined 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 compliance with this Development Agreement, Property is in coin P policies in and all applicable laws, ordinances, codes and p - exi "stence -at the__time of the execution of the by evelopment Agreement as well as other requirements imposed Commission upon the ratification of the site plan approval Page 7 of 17 _ I_�r)no / 1 BRA CFN #20080104490 page 7 of 22 on the Property, the Property shall not be the subject of a down zoning. application by the City and shall not be subject to any development moratorium, referenda action, ordinances, policies, or procedures enacted by the City that limits the development contemplated by this Agreement plan. Any, failure by this and depicted in the site P condition term Agreement. to address a particular permit, or restriction shall not relieve the Company of , the complying with the law governing necessity of said restrictions. permitting requirements, conditions, terms or 11. Permits, Condi tiona, 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 governing said permitting complying--- -wi-th-•— the law g requiremen , 12. Duration of Permits. The Company acknowledges that �,_ ermits_ this . agXe-emenM_d_oes �??ot�ex ;tendT' the= du= raz�:o:n o- —ate= _ ._ or approvals. 13. Law Governing Development of the Property. The olicie.s•__and ,procedures - of�the -City of Bsouth ordinances, _.glic .. �_-- .prose - Miami concerning development of the property that .are in existence as of the execution of this agreement shall for the duration of govern the development of the property adopted the term of this agreement No subsequently ordinances, policies, or procedures shall apply to the property except in accordance with +the provisions of section 163.3233(2), Florida Statutes, and Ordinance No. 05 -05 -1827, as attached. page 8 of 17 ft-1111 III 1"-,__i,nr_nn -a 1Dnnc=1'%R7 CFN##20080104490 page 8 of 22 agreement may. be terminated by 14. Termination. This and Company, subject to mutual written consent of the city terminate the terms and conditions herein. Either party may this Agreement if the other party commits or allows to be committed any material breach of this Development Agreement. A "material breach" of this Agreement shall • g a failure of either party include, but not be limited to, its p materia art for y l duty or obligation on to perform any onsecutive day period. Neither party may any thirty (30) c terminate this Agreement on g rounds of material breach of this Agreement unless it has provided written notice to intention to declare a breach and to the other party of its "Notice to Terminate") and terminate this Agreement (the the breaching party thereafter fails to cure or take steps cure the breach within sixty (60) days to substantially _. ._ - - -- - wit}i- the the receipt of such Notice to Terminate, following -- ui'tiin exception of monetary - .-- at hes which shall be - cure thirty (30) after receipt of notice. °•.Aaaignme-n't-'Th-:i:s •-Development Agr- eement- -may•• -not be the Company except to an affiliated entity, assigned by Subject to without the prior written consent of the City. J preceding sentence this pment Agreement shall be the p g Develo binding upon the successors, assigns, and representatives An affiliated 'entity is an entity its of which South of the parties hereto. Miami Corporation or a majority indirectly owns at least 51% of shareholders, directly or the beneficial interest. ' —_ 16. Wo =k_ F, . -- The _Co_m an agrees to use__its bes for local citizens in efforts to enhance job opportunities connection with the project. To that end and in order to Page 9 of 11 P011191 page 9of22 CFN #20080104490 maximize job opportunities for applicants from South Miami, the Company shall send notice to the Community the City of South Miami, Redevelopment Agency Director of b the City Manager, regarding or a substitute desig nee y 1 construction employment opportunities related to any temporary or permanent work on the Property, (2) P y 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.Proparation. 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. lg, Binding Effect. The burdens of this agreement shall be binding upon, and the .benefits .of this :_a9.reement' the parties . ........... � of this agreement. znd=- He. a. dngs _he.adings.:_ -arQ ._.for convenience only and shall not be used to construe o interpret this agreement. licabI* Laws, Jurisdiction, and Vanua. This 20. ApP - - - -- - - -- _� --�-_ =- • - construed, T agreement shall be governed b y and interpreted, and enforced in accordance with the internal laws of Florida without regard to principles of conflicts of law. This agreement may be enforced as provided in Section 163.3243, Florida Statutes. Venue for any litigation pertaining to the subject matter hereof shall be exclusively - -in Miami' -Dade County Florida: Page 10 of 17 o,,,-,t,- )r_onq1Pane1389 CFN #20080104490 Page 10 of 22 21. Enforcement. In any litigation arising out of-this agreement, the prevailing party shall be entitled to its costs and attorneys fees. Attorney's fees recover exceed 25� of the payable under this paragraph shall not 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 , asonable and shall not exceed an the court but shall be re hourly rate of $300.00 per hour. 22. Inspection. Nothing in this Agreement shall be waive or limit the City's governmental construed to political corporation and p authority as a • municipal an therefore subdivision of the state of Florida. The comp an understands and agrees that any official inspector of the nvestigate all activities the right to enter, inspect and i complies on the premises to determine whether the Property P with app lCZ ] aws 1nc3ud3n9 b �n�t�imite`d'" to 'building and zoning regulations and the conditions herein. 23, xuthorization to Withhold.Permits and Inspections. In the event the - Company - is- •-o-b-ligated -'to- -make--- p- ayments or rms of this Development Agreement improvements under the te and such payments are not made as required, or such improvements are not made as required, in addition to any vailable, the City of South Miami is hereby other remedies a ithhold any further permits on the portion authorized to w _of th,e_— Psope.rty.failing , to_ _ comply with this Development inspections or grant any Agreement, and refuse any P approvals, with regard to that portion of the Property Page 11 of 17 Page of 22 C:FN #20080104490 11 until such time this Development Agreement is complied with. 24, Repreaentations of the Company. The Company represents to the City as follows: y erformance of (a) The execution,_ deliver and p 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, Company's legal, valid and and constitutes binding obligations,- enforceable against Company in accordance with its terms. are.. no _actions, .- suits. _or _pmo.ceedings -net--oi -- _.�' pendi:ng�os'�►'�e.r.��d- Company before any court or governmental agency that would in any material way affect- Company's a• pity. to per orm this Agreement . (d) Company shall not act in any way whatsoever, directly or indirectly, to cause this Agreement to be amended, modified, canceled, or terminated, except pursuant to its express terms, and shall take all actions necessary to ensure that this Agreement shall remain in full' force and effect at all times. (e) Company has the financial capacity to pay or advance to the City all fees and payments as _ 3equ, ix�d _.urld.er_.this_._Agze.ement . page 12 of 17� CFN #20080104490 Page 12 of 22 25. Severnbility. In the event that any of the reements, terms; or provisions contained in a covenants, g or unenforceable this agreement shall be invalid, illegal, 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 company or the any covenant, City to insist upon the strict performance of Agreement, or to agreement, term or condition of this 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 reement, term, or condition of condition. No covenant, a 9 this Agreement and no breach thereof shall be waived, -• altered or modifi -ed•• except by written - instr- ument.- No- waiver -- -�gxe'eme r but �yrhsal.3aE =f r-- — ovenant, agreement, term and condition of each and every c this Agreement shall continue in full force and effect with aTY� 'other =— "'then— ex4 -st -ng == °o=�'subsequent - breach thereof. 27. Annual Report and Review. It shall be the to— submit =an= annual= r -eport • to the= Company = 3bi= ty ent to fulfill' the requirements utesd the City suffici in the provisions of Section 163.3235, Florida Stat and Ordinance No. 05 -05 -2005. This agreement shall be reviewed annually on the anniversary of the effective date of this agreement. The company, or its assign, an annual report — at least__30 . days = pri_or._.to__th.e= annual r. = -= section Y review date. This report shall contain a section listing of what obligations have been met and the date Page 13 of 17,��q`e� r'FN #20080104490 Page 13 ,of 22 finalized, as good faith compliance with the terms of, the agreement. The city commission shall review the annual _ If the City Commission finds, report at a public meeting. on -the basis of substantial' competent evidence, that there with the terms of the has been a failure to comply Development grement, the Agreemen Ae t 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 33.193 Copy Planning and Community Development Department City of South Miami _ -_- �. - -- -- 613.0 - Sunset. D, rive lorida 33193 South Miami, . F For the Company: South Miami Corporation Attn: Donald F. Hunter, __ _ - - -- -- -Lice- P•r- esident• - - - -- - And Wade R. Wacholz, counsel 5750 Sunset Drive South Miami, Florida 33193 Copy to: Wade R. Wacholz, Esq- Gislason S Hunter, LLP. P.O. Box 5297. 55293 -2297 Hopkins, Minnesota r.. - W Tucker Gibbs, Esq. 215 Grand Avenue Coconut Grove; Florida. 33133 Page 19 of 17 _ A^r%01 rC:NI- R0nnRnin4490 ft"'A 'I k Page 14 of 22 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, 1 ates-.._�a..� –� D3r?LipnrP. —oJ and stip� shall be contained in this Agreement, and the Exhibits, admitted into evidence on its behalf ..This Agreement shall _ not be.. supple merit. ed- ,:- 4amended —or —mod .f:i.e.d--by,-- a- ny— c.ou -r=se - 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 Affiliates and it may not be enforced by any party other than the parties to this Agreement and shall not give rise to liability to any third party other than the authorized successors and assigns of the parties hereto. 33. Periods of Time. Whenever any determination is to be made or action is to be taken on a date specified in Page 15 of 17 Clddgn Page 15 of 22 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 Development Agreement has been signed by both the Company and the City, the Applicant shall cause a copy of the Development Agreement to be recorded at the Applicant's expense in the registry of deeds in_Miami_Dade C_ovnty. 4 36. Abandonment of Pigbt -of -Way. The City agrees to abandon the right -of -way adjacent to the property to the buildable line. "The 'Company shal'1 contemporaneously grant to the City an easement from the right -of -way adjacent to the property to the buildable line for all future needs of the City. To ensure that the proposed structure does not interfere with the City's future needs, any permanent structure extending out over the City's easement shall provide the City with clearance as provided in the Hometown Overlay District in the Land Development Code (10 -feet minimum). page 16 of 17 _ -. r-c7N1 4,)nnPn1 n4490 Page 16 of 22 PASSIM ATMD DULY ADOPTED by the cit Cbmmission of the 200 City of South Miami, Florida, this day of a 00 &.a VED: A TEST: - / TY CLERK L n I 1 P-1 ) 2n d e Z � d e e °T C� +�1 READ AND APPR q�VD AS TO FORM: r r C 7V4e- AGREED TO this day of Me'r#+ �. 200/. SOUTH MIAM - CORPORATION -_ Witnesses: President Print Name A i z Print Name i r.Tnv7na ��ln�oi5 •- -STATE - OF ) D �TBE CoDK ) COUNTY OF ,,. �t � The foregoing instrument was acknowledged before me this a(o day, of plc¢. --,34A . 2001L W O(-KW L t✓IRTZ pets nally known to me or who produced as identification, on behalf of the corporation. �� C {yqE, KRCH My commission expires: ? r— j`) �/ OFFICIAL SEAL p(olory PvbBc• Stole of Mnoa My Corrvnkslon &;*as Iuiout 4, 2011 Page 17 of 17 CFN##20080104490 Page 17 of 22