03-14-05 Item 50�.
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CITY OF SOUTH MIAMI
FF10E OF THE CITY MANAGER
INTER- OFFICE MEMORANDUM
To: Honorable Mayor, Vice Mayor & Date: March 1 4 f 2005
Commission Members
ITEM No.
From: Maria Davis Re: Development Agreement
City Manager Project Sunset -South Miami Corp.
5750 Sunset Dr.
AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
SOUTH MIAMI, FLORIDA ADOPTING A DEVELOPMENT AGREEMENT PURSUANT
TO FLORIDA STATE STATUE 163.3221 FOR A UNIFIED DEVELOPMENT PROJECT
KNOWN AS "PROJECT SUNSET" WHICH WILL INCLUDE THREE BUILDINGS UP
TO FOUR (4) STORIES IN HEIGHT 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
SUMMARY OF REOUEST
The applicant is requesting approval of a Development Agreement for a 4.5 acre property as
described above. The proposed development to be called "Project Sunset" will include residential
buildings, parking , office uses and retail uses. A total of 108 dwelling units and 87,212 square
feet of commercial space will be constructed in one phase.
The Development Agreement is the third element of the applicant's approval process for a
proposed unified development project extending over 3 city blocks. The first element is a request
for a two special exceptions to certain provisions in the SR Hometown District. The second part is
the approval of a special use request to allow four restaurants within the unified development area.
The applicant has indicated consent to entering into a Development Agreement with the City
which would make legally enforceable the site plan and all of the conditions and requirements set
Development Agreement
Page 2 of 3
forth by the City as part of its approval of the special uses and special exceptions.
DEVELOPMENT AGREEMENT REGULATIONS
Florida State Statutes 163.3220 -3243 (Florida Local Government Development Agreement Act)
sets forth the authorization and procedures for a local governments if they intend to enter into an
agreement with a developer of property. The purpose of a development agreement is to assure that
the development program and all of the related conditions as approved by the local government
will be implemented.
SUMMARY OF DEVELOPMENT AGREEMENT
The following is a summary of the major provisions in the proposed agreement:
• The term of the agreement is 10 years.(pp2 -3, No. 3)
• The Use of the Property (p.3, No.4) including density. The property will be developed in two
phases
This section needs to be adjusted to indicate 108 maximum number of units and a site size of 4.5
acres. The project must be built at one time or the applicant must post a performance bond.
• In order to respond to the City's concurrency standard for park and recreation facility
expansion the developer agrees to pay a fee to the City (p. 4 No. 5d).
The fee amount must reflect the proportional cost of the City's proposed purchase of the YMCA
property; or a provision for a substitute amount equal to the average cost of an. acre of residential
land within a 1200 foot radius of the project site should the City not acquire the YMCA site.
• Permits Section (p.5 No.7);
This section needs to be corrected to indicate four restaurants and that retail and restaurant
parking spaces must be marked and signed.
• Development Conditions (p.5 -6 No. 8)
This section needs to be amended to mandate that all development must be in accord with the
actual site plan submitted with the special exception and special use applications.
• All of the conditions approved by the Planning Board as part of the project review should be
incorporated in the development agreement.
PLANNING BOARD ACTION
The Planning Board at its February 22, 2005 meeting adopted a motion by a vote of 4 ayes and 1 nay (Mr.
Liddy) recommending approval of the Development Agreement with all but one of the conditions set forth
by staff. The Board voted to recommend that Item 5b on p.4 should include the following:
The fee amount must reflect the proportional cost of the City's proposed purchase of the YMCA
property; or a provision for a substitute fee based upon the average sales price of residential
property in the City over the past two years.
CITY ATTORNEY PROPOSED AMENDMENT
The City Attorney advised that the following amendment to the draft Development Agreement was needed:
Development Agreement
Page 3 of 3
36. ABANDONMENT OF RIGHT OF WAY
The City agrees to abandon the right of way adjacent to the property to the buildable line. The Applicant
shall 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 a clearance as provided in the Hometown Overlay District in the Land Development Code (10 feet
minimum)
RECOMMENDATION
(1) It is recommended that the attached proposed Development Agreement as modified by the staff .
comments above, the amendment suggested above by the Planning Board, and the City
Attorney's amendment be approved.
(2) The attached proposed ordinance formally adopting the Development Agreement on first
reading should be approved.
Attachments
Proposed ordinance
Development Agreement
Fl. State Statute 163.3220 - 163.3243
Public notices
MD/DOD /SAY
\\MCGRUFF\PLANNING C m� Items \2005\3- 1- 05\Devel Agree 5750 Sunset Report.doc
1 ORDINANCE NO.
2
3 AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
4 SOUTH MIAMI, FLORIDA ADOPTING, A DEVELOPMENT AGREEMENT
5 PURSUANT TO FLORIDA STATE STATUE 163.3221 FOR A UNIFIED
6 DEVELOPMENT PROJECT KNOWN AS "PROJECT SUNSET" WHICH WILL
7 INCLUDE THREE BUILDINGS UP TO FOUR (4) STORIES IN HEIGHT AND THE
8 FOLLOWING USES: 108 MULTI - FAMILY RESIDENTIAL UNITS, RETAIL USES,
9 OFFICE USES, RESTAURANTS,, BANK AND PARKING GARAGES; ALL FOR
10 PROPERTY LOCATED GENERALLY AT 5750 SUNSET DRIVE AND LEGALLY
11 DESCRIBED AS LOTS 6 THRU 9, 40 THRU 45, 53 THRU 66 INCLUSIVE AND THE
12 EAST 50 FEET OF LOTS 51 AND 52 OF W. A. LARKINS SUBDIVISION ACCORDING
13 TO THE PLAT THEREOF RECORDED IN PLAT BOOK 3 AT PAGE_ 198 OF THE
14 PUBLIC RECORDS OF MIAMI -DADE COUNTY; PROVIDING FOR SEVERABILITY;
15 PROVIDING FOR ORDINANCES IN CONFLICT; AND PROVIDING AN EFFECTIVE
16 DATE
17
10 �X7IIL'DTi A C „ �nnc +b,o Cn „41, Ad;omi (`nrnnm4inn ;c rarn,acfinn arccrncra� of a Tlavalnrcman4
19 Agreement for a 4.5 acre proposed unified development to be called "Project Sunset” which will include
20 a total of 108 dwelling units and 87,212 square feet of commercial space on property located generally
21 at 5750 Sunset Drive and legally described as Lots 6 thru 9, 40 thru 45, 53 thru 66 inclusive and the east
22 50 feet of Lots 51 and 52 of W. A. Larkins subdivision according to the plat thereof recorded in plat book
23 3 at page 198 of the public records of Miami -Dade County and
24
25 WHEREAS, the City Commission at its March 1, 2005 meeting adopted a resolution allowing
26 two special exceptions and adopted a special use resolution permitting the location of four restaurants in
27 the unified development; and
28
29 WHEREAS, the Florida Local Government Development Agreement Act, set forth in sections
30 163.3220- 163.3243, Florida Statutes, provides for the execution of development agreements to insure that
31 the law and regulations in effect at the time of the execution of the development agreement shall govern
32 the development of the land for the duration of the agreement; and
33
34 WHEREAS, the South Miami Corporation has proposed the execution of a development
35 agreement with the City of South Miami pertaining to the mixed use project entitled "Project Sunset"
36 which agreement would set forth all of the conditions and commitments required by the City resulting
37 from the approval of the special exception and special use requests; and
38
39 WHEREAS, the Planning Board at a meeting on February 22, 2005 after a public hearing,
40 adopted a motion by a vote of 4 aye 1 nay recommending approval of the proposed Development
41 Agreement subject to specific revisions and conditions, which have been included in the draft agreement;
42 and
43
44 WHEREAS, the Mayor and City Commission of the City of South Miami desire to accept the
45 recommendation of the Planning Board.
46
47 NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND THE CITY
48 COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA:
49
50 Section 1 That a Development Agreement, attached as Exhibit "A" and dated between the
51 City of South Miami, Florida, and the South Miami Corporation pertaining to a 4,5 acre proposed
2
1 unified development to be called " Project Sunset" which will include a total of 108 dwelling units and
2 87,212 square feet of commercial space on property located generally at 5750 Sunset Drive and legally
3 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.
4 A. Larkins subdivision according to the plat thereof recorded in Plat Book 3 at page 198 of the public
5 records of Miami -Dade County is approved,
6
7 Section 2 If any section, clause, sentence, or phrase of this ordinance is for any reason held invalid or
8 unconstitutional by a court of competent jurisdiction, this holding shall not affect the validity of the
9 remaining portions of this ordinance.
10
11 Section 3 All ordinances or parts of ordinances in conflict with the provisions of this ordinance are
12 hereby repealed.
13
14 Section 4 This ordinance shall be effective immediately after the adoption hereof.
15
16
17
18 PASSED AND ADOPTED this day of , 2005
19
20 ATTEST: APPROVED:
21
22
23
24 CITY CLERK MAYOR
25
26 1' Reading
27 2nd Reading -
28 COMMISSION VOTE:
29 READ AND APPROVED AS TO FORM: Mayor Russell:
30 Vice Mayor Palmer:
31 Commissioner Wiscombe:
32 Commissioner Birts - Cooper:
33 CITY ATTORNEY Commissioner Sherar
34
35
36
37 Attachment: Exhibit "A" Development Agreement
38
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40
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42
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50 E: \Comm Items \2005\3- 1- 05\Development Agreement Bank Ord.doc
51
W. TUCKER GIBB S
ATTORNEY AT LAW
215 GRAND AVENUE
P.O. Box 1050
COCONUT GROVE, FLORIDA 33133
TELEPHONE (305) 448 -8486
FACSIMILE (305) 448 -0773
March 11, 2005
The Honorable Mayor and City Commissioners
City of South Miami
6130 Sunset Drive
South Miami, FL 33143
VIA HAND DELIVERY
Re: Revised Development Agreement and Exhibits for Application
for Development Proposal for 5750 Sunset Drive.
Dear Mayor and Commissioners:
On behalf of my client, the South Miami Corporation, I am
providing you with the revised Development Agreement and
exhibits for the referenced project as changed at the March 1,
2005 city commission meeting.
The Development Agreement reflects the commission's
deletion of language regarding a contribution toward the
purchase of the YMCA property and language calling for a payment
over a five year period.
My client and I look forward to discussing the Development
Agreement and our project with the commission at its March 14,
2005 workshop.
Sincerely,
W. Tucker Gibbs
cc: Wade Wacholz, Esq.
Maria Davis, City Manager
Luis Figueredo, City Attorney
Maria M. Menendez, City Clerk
Don O'Donniley, Planning Director
DEVELOPMENT AGREEMENT
BETWEEN
THE CITY OF SOUTH MIAMI, FLORIDA
AND SOUTH MIAMI CORPORATION
THIS DEVELOPMENT AGREEMENT ( "Agreement ") is made as of
March , 2005 by and between THE CITY OF SOUTH MIAMI,
FLORIDA a municipal corporation ( "City ") and SOUTH MIAMI
CORPORATION ( "Company ") or its assignee.
RECITALS
WHEREAS, the Florida Local Government Development
Agreement Act, set forth in sections 163.3220 - 163.3243,
Florida Statutes, set forth in Exhibit "A" (the "Act ")
provides for the execution of development agreements for a
term not to exceed ten (10) years to insure that the law 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, the city commission of the City of South
Miami has adopted Ordinance No. which implements the
Act and permits the consideration and the adoption of this
agreement; and
WHEREAS, the Company owns approximately 4.5 +/- acres,
zoned HD -OV, described in Exhibit "B," (the "Property ");
and
WHEREAS, the Company desires to construct a mixed use
development encompassing retail, office and residential
components described in Exhibit "C," (the "Project ") in the
Hometown District Overlay Zone within the City of South
Miami.
Page 1 of 17
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 is 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 "D ".
3. Effective Date; Duration of Agreement. This
agreement shall become effective after it has been recorded
in the public records of Miami -Dade County and thirty (30)
days after it is received by the Florida Department of
Community Affairs (the "Effective Date "). This agreement
shall terminate ten years from the effective date of this
agreement, unless otherwise extended or terminated as
provided for herein or in the act. The maximum period of
this agreement shall be ten (10) years from the effective
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.
4. Use of Property. The property described in Exhibit
"A" is to be utilized for the project described in Exhibit
"C ": a mixed use residential, office and retail project
with a residential use not to exceed 108 dwelling units on
Page 2 of 17
approximately 4.5 +/- acres. The project will include
"chamfered" corners where it abuts roadway intersections
pursuant to Exhibit "C ". The occupied space of the project
will not exceed four stories or fifty six (56) feet in
height unless otherwise permitted by the South Miami
comprehensive plan or its land development regulations. The
total of occupied space of the project shall not exceed
four stories. Non - occupied space shall not exceed a maximum
height of fifty six feet. The project shall be built in two
phases as follows:
• Phase I shall consist of Blocks "A" and "C"
described in Exhibit "C ".
• Phase II shall consist of Block "B" described in
Exhibit "C ".
The overall development of the property shall be
conducted in accordance with the approved site plan on file
at 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.
5. Public Facilities Serving the Project. In order to
enhance public facilities in the City of South Miami, the
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
Page 3 of 17
Based on the projected residential population
on the Property, Company agrees to pay for or
provide .8 acres of land acceptable to the
City for a public park. In the alternative,
the Company may provide a "substitute payment"
based on the average sales price of
residential property in the city over the last
year. The Company's payment shall be placed in
a special fund for spending on capital
improvements to park and recreation facilities
in the City. The Payment shall be made in one
lump sum on or before a Certificate of Use and
Occupancy is granted for the first residential
unit on the Property.
(c) Sanitary Sewers
Water and Sewer services that comply with all
requirements'of Miami -Dade County for any
building prior to issuance of a final
Certificate of Use and Occupancy.
(d) Solid Waste
Solid Waste services that comply with all
requirements of Miami -Dade County for any
building prior to issuance of a final
Certificate of Use and Occupancy.
(e) Schools
The Company commits to pay upon the issuance
of the initial certificate of occupancy any
required Miami -Dade County School Board school
impact fees.
Page 4 of 17
6. Concurrency. The City of South Miami has determined
that the Company's performance under the Development
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 Comprehensive Plan and Land Development
Regulations.
7. Permits. The permits preliminarily identified as
necessary for development of the project are described as
follows:
(a) Special Exception to permit four drive -
through teller lanes within the site.
(b) Special Exception to provide 72.2% +/- lot
coverage.
(c) Special Use permit to permit up to four
restaurants with a maximum total of 13,820+/ -
square feet with parking to be supplied from any
excess parking within the site. Retail and
restaurant parking shall be marked and signed.
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.
Page 5 of 17
(c) The Company shall develop the project in
conformance with the parameters set forth in this
agreement.
(d) All development shall be in accord with the
site plan submitted with the special exception
and special use applications, said site plan
incorporated in Exhibit "C ".
(e) The Company shall provide the Department of
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.
f) All conditions imposed by the City Commission
shall be incorporated in this Development
Agreement.
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 residential, office
and retail development, as set forth herein, is consistent
with the "Mixed -Use Commercial /Residential (Four Story)"
designation on the future land use map, and the HD -OV
zoning district on the Official Zoning Atlas of the City of
South Miami. Goal 2 of the Future Land Use Element
Page 6 of 17
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 Development Agreement,
and all applicable laws, ordinances, codes and policies in
existence at the time of the execution of the Development
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.
12. Duration of Permits. The Company acknowledges that
this agreement does not extend the duration of any permits
or approvals.
Page 7 of 17
13. Law Governing Development of the Property. The
ordinances, policies and procedures of the City of South
Miami concerning development of the property that are 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 in accordance with the provisions of
section 163.3233(2), Florida Statutes, and Ordinance No.
, as attached.
14. Termination. 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 Development
Agreement. A "material 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.
15. Assignment. This Development Agreement may not be
assigned by the Company except to an affiliated entity,
Page 8 of 17
without the prior written consent of the City. Subject to
the preceding sentence this Development Agreement shall be
binding upon the successors, assigns, and representatives
of the parties hereto. An affiliated entity is an entity of
which South Miami 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.
19. Captions and Headings. Paragraph headings are for
convenience only and shall not be used to construe or
interpret this agreement.
Page 9 of 17
20. Applicable Laws, Jurisdiction, and Venue. This
agreement shall be governed by and interpreted, construed,
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.
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 or 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 17
23. Authorization to Withhold Permits and Inspections.
In the event the Company is obligated to make payments or
improvements under the terms of this Development 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 Development
Agreement, and refuse any inspections or grant any
approvals, with regard to that portion of the Property
until such time this Development 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 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
Company before any court or governmental agency
that would in any material way affect Company's
ability to perform this Agreement.
(d) Company shall not act in any way whatsoever,
directly or indirectly, to cause this Agreement
Page 11 of 17
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
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 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 17
the City sufficient to fulfill the requirements as stated
in the provisions of Section 163.3235, Florida Statutes,
and Ordinance No. . 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
Development 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: South Miami Corporation
Attn: Donald F. Hunter,
Vice President
And Wade R. Wacholz, counsel
Page 13 of 17
5750 Sunset Drive
South Miami, Florida 33143
Copy to: Wade R. Wacholz, Esq.
Gislason & Hunter, LLP.
P.O. Box 5297
Hopkins, Minnesota 55243 -2297
W. Tucker Gibbs, Esq.
215 Grand Avenue
Coconut Grove, Florida 33133
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.
Page 14 of 17
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
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 County.
36. Abandonment of Right -of -Way. The City agrees to
abandon the right -of -way adjacent to the property to the
buildable line. The Company shall 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
Page 15 of 17
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).
PASSED AND DULY ADOPTED by the city commission of the
City of South Miami, Florida, this day of , 2005.
ATTEST:
CITY CLERK
READ AND APPROVED AS TO FORM:
CITY ATTORNEY
AGREED TO this
Witnesses:
Print Name
Print Name
APPROVED:
MAYOR
day of March, 2005.
SOUTH MIAMI CORPORATION
Vice President
Page 16 of 17
STATE OF FLORIDA )
COUNTY OF MIAMI -DADE )
The foregoing instrument was acknowledged before me this
day of , 2005 by who is
personally known to me or who produced
as identification, on behalf
of the corporation.
My commission expires:
Page 17 of 17
Exhibit "A"
Exhibit "B"
Exhibit "C"
Exhibit "D"
EXHIBITS
Florida Local Government
Development Agreement Act
Legal Description
Site Plan Concept
Unity of Title
Florida Local Government Development Agreement Act
163.3220 Short title; legislative intent: -
(1) Sections 163.3220 - 163.3243 may be cited as the "Florida Local Government
Development Agreement Act."
(2) The Legislature finds and declares that:
(a) The lack of certainty in the approval of development can result in a waste of
economic and land resources. discourage sound capital improvement planning and
financing. escalate the cost of housing and development, and discourage commitment to
comprehensive planning.
(b) Assurance to a developer that upon receipt of his or her development permit or
brownfield designation he or she may proceed in accordance with existing laws and
policies. subject to the conditions of a development agreement, strengthens the public
planning process, encourages sound capital improvement planning and financing. assists
in assuring there are adequate capital facilities for the development, encourages private
participation in comprehensive planning, and reduces the economic costs of development.
(3) In conformity with. in furtherance of.. and to implement the Local Government
Comprehensive Planning and Land Development Regulation Act and the Florida State
Comprehensive Planning Act of 1972, it is the intent of the Legislature to encourage a
stronger commitment to comprehensive and capital facilities planning, ensure the
provision of adequate public facilities for development, encourage the efficient use of
resources, and reduce the economic cost of development.
(4) This intent is effected by authorizing local governments to enter into development
agreements with developers, subject to the procedures and requirements of ss. 163.3220-
163.3243.
(5) Sections 1633220 - 163.3243 shall be regarded as supplemental and additional to the
powers conferred upon local governments by other laws and shall not be regarded as in
derogation of any powers now existing.
History. - -s. 19. ch. 86 -191: s. 902. ch. 95 -147: s. 8, ch. 99 -378.
163.3221 Florida Local Government Development Agreement Act; definitions. - -As
used in ss. 163.3220 - 163.3243:
(1) 'Brownfield designation" means a resolution adopted by a local government pursuant
to the Brownfields Redevelopment Act, ss. 376.77- 376.85.
(2) "Comprehensive plan" means a plan adopted pursuant to the "Local Government
Comprehensive Planning and Land Development Regulation Act."
(3) "Developer" means any person. including a governmental agency. undertaking any
development.
(4) "Development" means the carrying out of any building activity or mining operation.
the making of any material change in the use or appearance of any structure or land. or
the dividing of land into three or more parcels.
(a) The following activities or uses shall be taken for the purposes of this act to involve
"development ":
1. A reconstruction, alteration of the size, or material change in the external appearance
of a structure on land.
2. A change in the intensity of use of land, such as an increase in the number of dwelling
units in a structure or on land or a material increase in the number of businesses.
manufacturing establishments. offices, or dwelling units in a structure or on land.
3. Alteration of a shore or bank of a seacoast, river, stream, lake, pond, or canal.
including any "coastal construction" as defined in s. 161.021.
4. Commencement of drilling, except to obtain soil samples. mining. or excavation on a
parcel of land.
5. Demolition of a structure.
6. Clearing of land as an adjunct of construction.
7. Deposit of refuse, solid or liquid waste, or fill on a parcel of land.
(b) The following operations or uses shall not be taken for the purpose of this act to
involve "development ":
1. Work by a highway or road agency or railroad company for the maintenance or
improvement of a road or railroad track, if the work is carried out on land within the
boundaries of the right -of -way.
2. Work by any utility and other persons engaged in the distribution or transmission of
gas or water, for the purpose of inspecting, repairing, renewing, or constructing on
established rights -of -way any sewers, mains. pipes, cables. utility tunnels. power lines.
towers, poles. tracks. or the like.
2
I Work for the maintenance, renewal, improvement, or alteration of any structure, if the
work affects only the interior or the color of the structure or the decoration of the exterior
of the structure.
4. The use of any structure or land devoted to dwelling uses for any purpose customarily
incidental to enjoyment of the dwelling.
5. The use of any land for the purpose of growing plants. crops, trees. and other
agricultural or forestry products; raising livestock; or for other agricultural purposes.
6. A change in use of land or structure from a use within a class specified in an ordinance
or rule to another use in the same class.
7. A change in the ownership or form of ownership of any parcel or structure.
8. The creation or termination of rights of access, riparian rights, easements. covenants
concerning development of land. or other rights in land.
(c) "Development." as designated in an ordinance, rule, or development permit includes
all other development customarily associated with it unless otherwise specified. When
appropriate to the context. "development" refers to the act of developing or to the result
of development. Reference to any specific operation is not intended to mean that the
operation or activity, when part of other operations or activities, is not development.
Reference to particular operations is not intended to limit the generality of this
subsection.
(5) "Development permit includes any building permit, zoning permit, subdivision
approval. rezoning, certification, special exception, variance, or any other official action
of local government having the effect of permitting the development of land.
(6) "Governing body" means the board of county commissioners of a county. the
commission or council of an incorporated municipality, or any other chief governing
body of a unit of local government, however designated.
(7) "Land" means the earth, water, and air, above, below, or on the surface, and includes
any improvements or structures customarily regarded as land.
(8) "Land development regulations" means ordinances enacted by governing bodies for
the regulation of any aspect of development and includes any local government zoning.
rezoning. subdivision, building construction, or sign regulations or any other regulations
controlling the development of land.
(9) "Laws" means all ordinances, resolutions, regulations, comprehensive plans. land
development regulations. and rules adopted by a local government affecting the
development of land.
(10) "Local government" means any county or municipality or any special district or
local governmental entity established pursuant to law which exercises regulatory
authority over, and grants development permits for, land development.
01) "Local planning agency" means the agency designated to prepare a comprehensive
plan or plan amendment pursuant to the "Florida Local Government Comprehensive
Planning and Land Development Regulation Act."
(12) "Person" means any individual, corporation, business or land trust. estate, trust.
partnership, association, two or more persons having a joint or common interest, state
agency, or any legal entity.
(13) "Public facilities" means major capital improvements, including, but not limited to.
transportation. sanitary sewer, solid waste. drainage. potable water. educational. parks
and recreational. and health systems and facilities.
(14) "State land planning agency" means the Department of Community Affairs.
History: -s. 20, ch. 86 -191: s. 4, ch. 92 -129: s. 9, ch. 99 -378.
163.3223 Applicability.- -Any local government may, by ordinance. establish procedures
and requirements, as provided in ss. 163.3220- 163.3243. to consider and enter into a
development agreement with any person having a legal or equitable interest in real
property located within its jurisdiction.
History. - -s. 21. ch. 86 -191.
163.3225 Public hearings. --
(1) Before entering into. amending, or revoking a development agreement. a local
government shall conduct at least two public hearings. At the option of the governing
body, one of the public hearings may be held by the local planning agency.
(2)(a) Notice of intent to consider a development agreement shall be advertised
approximately 7 days before each public hearing in a newspaper of general circulation
and readership in the county where the local government is located. Notice of intent to
consider a development agreement shall also be mailed to all affected property owners
before the first public hearing. The day, time, and place at which the second public
hearing will be held shall be announced at the first public hearing.
(b) The notice shall specify the location of the land subject to the development
agreement, the development uses proposed on the property, the proposed population
densities, and the proposed building intensities and height and shall specify a place where
a copy of the proposed agreement can be obtained.
History.—s. 22. ch. 86 -191.
163.3227 Requirements of a development agreement. --
(1) A development agreement shall include the following:
(a) A legal description of the land subject to the agreement, and the names of its legal
and equitable owners:
(b) The duration of the agreement:
(c) The development uses permitted on the land, including population densities, and
building intensities and height;
(d) A description of public facilities that will service the development, including who
shall provide such facilities: the date any new facilities, if needed, will be constructed:
and a schedule to assure public facilities are available concurrent with the impacts of the
development:
(e) A description of any reservation or dedication of land for public purposes;
(f) A description of all local development permits approved or needed to be approved for
the development of the land:
(g) A finding that the development permitted or proposed is consistent with the local
- overnment's comprehensive plan and land development regulations:
(h) A description of any conditions, terms, restrictions, or other requirements determined
to be necessary by the local government for the public health, safety, or welfare of its
citizens: and
(i) A statement indicating that the failure of the agreement to address a particular permit.
condition. term. or restriction shall not relieve the developer of the necessity of
complying with the law governing said permitting requirements, conditions. term. or
restriction.
(2) A development agreement may provide that the entire development or any phase
thereof be commenced or completed within a specific period of time.
History.--s. 23. ch. 86 -191: s. 31. ch. 91 -45.
163.3229 Duration of a development agreement and relationship to local
comprehensive plan.--The duration of a development agreement shall not exceed 10
years. It may be extended by mutual consent of the governing body and the developer.
subiect to a public hearing in accordance with s. 163.3225. No development agreement
shall be effective or be implemented by a local government unless the local government's
comprehensive plan and plan amendments implementing or related to the agreement are
611
found in compliance by the state land planning agency in accordance with s. 163.3184. s.
163.3187. or s. 163.3189.
History. - -s. 24. ch. 86 -191: s. 32, ch. 91-4: s. 11. ch. 92 -129.
163.3231 Consistency with the comprehensive plan and land development
regulations. - -A development agreement and authorized development shall be consistent
with the local government's comprehensive plan and land development regulations.
History. - -s. 25. ch. 86 -191.
163.3233 Local laws and policies governing a development agreement. --
(1) The local government's laws and policies governing the development of the land at
the time of the execution of the development agreement shall govern the development of
the land for the duration of the development agreement.
(2) A local government may apply subsequently adopted laws and policies to a
development that is subject to a development agreement only if the local government has
held a public hearing and determined:
(a) They are not in conflict with the laws and policies governing the development
agreement and do not prevent development of the land uses. intensities. or densities in the
development agreement:
(b) They are essential to the public health. safety. or welfare. and expressly state that
they shall apply to a development that is subject to a development agreement:
(c) They are specifically anticipated and provided for in the development agreement:
(d) The local government demonstrates that substantial changes have occurred in
pertinent conditions existing at the time of approval of the development agreement: or
(e) The development agreement is based on substantially inaccurate information supplied
by the developer.
(3) This section does not abrogate any rights that may vest pursuant to common law.
History.--s. 26. ch. 86 -191.
163.3235 Periodic review of a development agreement. - -A local government shall
review land subject to a development agreement at least once every 12 months to
determine if there has been demonstrated good faith compliance with the terms of the
development agreement. For each annual review conducted during years 6 through 10 of
a development agreement. the review shall be incorporated into a written report which
shall be submitted to the parties to the agreement and the state land planning agency. The
state land planning agency shall adopt rules regarding the contents of the report. provided
0
that the report shall be limited to the information sufficient to determine the extent to
which the parties are proceeding in good faith to comply with the terms of the
development agreement. If the local government finds. on the basis of substantial
competent evidence, that there has been a failure to comply with the terms of the
development agreement, the agreement may be revoked or modified by the local
government.
History.--s. 27. ch. 86 -191; s. 12. ch. 92 -129.
163.3237 Amendment or cancellation of a development agreement. - -A development
agreement may be amended or canceled by mutual consent of the parties to the agreement
or by their successors in interest.
History.--s. 28. ch. 86 -191.
163.3239 Recording and effectiveness of a development agreement. -- Within 14 days
after a local government enters into a development agreement. the local government shall
record the agreement with the clerk of the circuit court in the county where the local
government is located. A copy of the recorded development agreement shall be submitted
to the state land planning agency within 14 days after the agreement is recorded. A
development agreement shall not be effective until it is properly recorded in the public
records of the county and until 30 days after having been received by the state land
planning agency pursuant to this section. The burdens of the development agreement
shall be binding upon. and the benefits of the agreement shall inure to, all successors in
interest to the parties to the agreement.
History. - -s. 29. ch. 86 -191: s. 13, ch. 92 -129.
163.3241 Modification or revocation of a development agreement•to comply with, - -
subsequently enacted state and federal law. - -If state or federal laws are enacted after
the execution of a development agreement which are applicable to and preclude the
parties' compliance with the terms of a development agreement, such agreement shall be
modified or revoked as is necessary to comply with the relevant state or federal laws.
History: -s. 30, ch. 86 -191.
163.3243 Enforcement. - -Any party. any aggrieved or adversely affected person as
defined in s. 163.3215(2). or the state land planning agency may file an action for
injunctive relief in the circuit court where the local government is located to enforce the
terms of a development agreement or to challenge compliance of the agreement with the
provisions of ss. 163.3220- 163.3243.
History: -s. 31. ch. 86 -191.
7
i r
LEGAL DESCRIPTION
Lots 6, 7, 8, 9, 40, 41, 42, 43, 44, 45, 53, 54, 55, 56,
57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 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,
Florida.
EMIR "oD
Unity of Title
The undersigned is the owner of that property (the
"Property ") described as:
Lots 6, 7, 8, 9, 40, 41, 42, 43, 44, 45, 53, 54, 55, 56,
57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 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,
Florida; and
The undersigned recognizes and acknowledges that for the
public health, welfare, safety or morals, and subject to the
conditions set forth herein, the Property should not be
divided into separate parcels owned by several owners so
long as the same is put to the hereinafter use; and
Pursuant to sections 20.7.30 and 20 -5.14, of the City Land
Development Code (the "LDC ") a unity of title is required
if the permitted density of a development project is based
upon the averaging of two (2) or more platted lots either
abutting or located on the opposite sides of a public
right -of -way or alley. In consideration of the mutual
agreements and covenants contained in the attached
Development Agreement between the City of South Miami and
the South Miami Corporation (the "Development Agreement ");
and
For other good and valuable consideration, the undersigned
hereby agrees to restrict the use of the Property in the
following manner:
1. That said Property shall be considered as one plot
and parcel of land and that no portion of said plot
and parcel of land shall be sold, transferred,
divided or assigned separately, except in its
entirety as one plot or parcel of land. However this
shall not prohibit the sale of portions of the
Property as condominium units or the sale of portions
consistent with the Development Agreement and
approved site plan.
2. That this condition(s), restriction (s)and .
limitation (s) shall be deemed a covenant running
with the land, shall be recorded in the public
Page 1 of 2
records of Miami Dade County, and shall remain in
full force and effect and be binding upon the
undersigned, their heirs and assigned until such time
as the same may be released in writing by the
Director of Planning; provided, however, that this
Unity of Title may be released by the Director of
Planning after approval of a site plan which meets
all applicable City regulations.
Signed, sealed, executed and acknowledged on this day of
February 2005, at Miami, Florida
Witnesses:
Print Name
Print Name
WITNESSES
SOUTH MIAMI CORPORATION
Vice President
Page 2 of 2