LTC 174-2013 Settlement of the Appeal MIAMIBEACH
OFFICE OF THE CITY MANAGER 16 12.3
trt _.
NO. LTC # 174 -2013 LETTER TO CO , ; .IS.SI: ON
To: Mayor Matti Herrera Bower an Member of the City Commission
FROM: Jimmy Morales, City Manager
Jose Smith, City Attor y
DATE: May 14, 2013
SUBJECT: Settlement of the Appeal file by W. Tucker Gibbs, P.A., on behalf of Sunset
Islands 3 and 4 Property Owners, Inc., and Olga Lens (collectively
"Appellants ") re: Palau at Sunset Harbour, DRB file no. 22889, 1201 -1237 20
Street.
The purpose of this Letter to Commission ( "LTC ") is to advise of the settlement of the subject
appeal. This matter was heard by the City Commission on March 13, 2013, at which time the
Commission ruled in favor of the Appellants, remanding to the Design Review Board to provide
for further disclosures of ex -parte contacts, if any, and for further review and discussion of
important view corridors.
Following the hearing on the appeal, the parties notified the City Attorney's Office that they had
reached a settlement and were in the process of preparing a settlement agreement and revised
plans to accomplish the settlement. A meeting was arranged between the parties and Planning
Department Design Review staff, to confirm that, as proposed by the parties, the changes to the
plans would be reviewed at the staff level without further review by the Design Review Board.
The settlement provides additional setbacks for the proposed building at multiple levels on its
east fagade along Sunset Drive, without affecting the exterior fagade in any significant respect.
Planning Department Design Review Staff has confirmed that these changes, not involving
significant alterations to the fagade of the project, can be approved at the staff level, and the
parties have concurred.
Accordingly, this LTC provides the City Commission with a copy of the letter from counsel for the
parties confirming the settlement, a summary of the settlement agreement, and a revised
drawing, showing the changes agreed to by the parties and Planning Department Design Review
Staff. The settlement effectively withdraws the appeal, and avoids the need for further hearings
by either the City Commission or the Design Review Board. The prior order of the DRB therefore
remains in effect.
Please contact either of us if you need anything further in this regard.
Attachment
JM /J /G
F:WTTO \HELG \LITIGATION \Palau \LTC re settlement 5 -14 -2013 rev.doc
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W. TUCKER G1BBS, P.A.
ATTORNEY AT LAW
P.O. BOX io5o
COCONUT GROVE FL 33133
TELEPHONE (305) 448 -8486
FACSIMILE (305) 448 -0773
tuckgr@mdSdbbs.com
May 13, 2013 VIA HAND DELIVERY
Gary M. Held
First Assistant City Attorney
1700 Convention Center Dr._
Fourth Floor
-Miami Beach, FL 33139 -1819
Re: Settlement'of Appeal of Sunset Islands 3 and 4 Property
Owners, Inc., and Olga Lens (Palau at Sunset Harbor, DRB File
No. 22889, 1201 -1237 20 th Street)
Dear Mr. Held,
On May 3, 2009, Palau Sunset Harbor, LLC and Sunset
Islands 3 and 4 Homeowners, LLC-and Olga Lens, entered into the
attached settlement'.agreement resolving their differences
regarding the of Miami Beach's approval of the Palau Sunset
Harbor development. Also attached is a summary of the executed
agreement. Because this settlement (including the plans in the
exhibits as marked -up by city planning staff) has.been executed,
the.parties understand and the city attorney agrees that no
further hearing is necessary and that this matter is concluded.
Thank you for your efforts in effecting this settlement.
Sincerely,
'W - Tucker bbs
Wa e M. Pathman
attachment
CC: Terry Bienstock
Meir Srebernik
J
Summary of. Settlement Agreement Dated May 3, 2013.
Between
Palau Sunset Harbor, LLC ( "Palau ")
and
Sunset Islands ,3 and A Homeowners, Inc. ( "Sunset Islands ")
and Olga Lens ( "Lens ")
A. Sunset Islands and Lens agree to support the Palau project as
set forth in the agreement including but not limited to,
appearing at the public hearings before the City or Miami -Dade
County (excluding proceedings or meetings before the Miami -
Dade County Environmental Quality Control Board ("EQCB ")) to
speak in support of the Project.
B. Palau agrees:
1. The plans attached.as Exhibit "B" and Exhibit "C -1" (as
approved by appropriate city staff),
2. Palau shall not seek to change the setbacks and step -backs
as set forth on the DRB- approved plans as amended by
Exhibit "B" without first obtaining approval by Sunset
Islands. Those setbacks and step -backs are as follows:
a. There shall be a minimum of a ten (10) foot setback
from the property line for all the ground floor retail
on Sunset Drive. Terraces for the units on all floors
above that retail space shall not extend into the 10
foot setback. There may be a decorative 5 foot deep
"eyebrow" overhang on Sunset Drive in front of the 2
residential units closest to 20 Street.
b. There shall be an additional five (5) foot setback
along the 3 rd floor along the 2 center residential
units on Sunset Drive, so as to be the same as the
setback for the 4 th and 5 th floors along this portion of
Sunset Drive.
c. The open space depicted on the northeast corner of the
building (extending no less than 26 feet from the
Sunset Drive right -of -way), shall be public open space
and open to "the public at all times (24 hours a day,
seven days a week, 52 weeks a year). No landscaping,
fences, walls or other barriers shall be placed in,
this space that would impede in any way or restrict
the public's access to this public space, or to impede
in any way or restrict the view from Sunset Drive to
the water or from Sunset Island 4 to Sunset Drive.
However the four -foot. -high fence as depicted on
Exhibit "B" shall be permitted. Nor shall the,docking
of any boat or other watercraft or any boat or other
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watercraft slip or docking facility be permitted
within the waterway frontage of this public plaza.
3. Public sidewalk shall be installed pursuant to Exhibit "B ".
During construction ingress and egress via public sidewalk
shall not be impeded.
4. Changes to the landscaping plans in Exhibit "C -1" shall not
be submitted to the city for approval without having
obtained prior approval of Sunset Islands. If there is a
dispute between Sunset Island and Palau over the
application of this provision, the parties shall submit the
dispute to the city planning director, who shall make the
final decision on the issue with no further right of the
parties for reconsideration or appeal.
5. If Palau or any successor decides to fund landscape design
plans .for parks, swales and medians between 20 and 21
streets, including Sunset Island 4 Park; the 20 Street
median between Sunset Drive and West.Avenue; and the city
parks on Sunset Drive and 20 Street, Sunset Islands shall
review and approve such design before submittal to the
city., If there is a dispute between Sunset Island and Palau
over the application of this provision, the parties shall
submit the dispute to the city planning director, who shall
make the final decision on the issue with no further right
of the parties for reconsideration or appeal.
6 Palau shall seek (and use its best efforts to obtain at no
additional cost to Palau other than a $5,000.00 allowance
for landscaping) and Sunset Islands shall support the
removal of the four back -out parking spaces and driveway on
Sunset Drive in front of.the Palau site. In that event the
landscaping for the area shall be as depicted on Exhibit'
"C -2 ". If there is a dispute between Sunset Island and
Palau over the application of this provision, the parties
shall submit the dispute to the city planning director, who
shall make the final decision on.'the issue with no further
right.of the parties for reconsideration or appeal.
7. Palau will provide 2 valet parking spaces for the Sunset
Islands guard house personnel 24- hours, seven - days -a -week.
This shall be included in the Declaration of Condominium.
8. No deliveries or drop -off and pick -up on the Sunset Drive
frontage of the Palau project. Nor shall any vehicle be
permitted to stop or stand on Sunset Drive between 20
Street to the Sunset Islands Bridge. This prohibition shall
be included in the Declaration of Condominium.
.9. The following requirements shall be in place during
construction:
a.The parties shall provide each other with a 24 -hour,
seven - days -a -week contact person to whom all
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construction- related communication and notices shall
be addressed.
b. Construction shall limited to Mondays through
Saturdays with hours set forth in the city code.
c. Construction- related vehicles shall not park, idle,
- stack or in any other way utilize 20 Street prior to
7:30am Mondays through Saturdays.
d. All access to the construction site shall be via the
property on 20 Street asset forth in the
construction graphic depiction in Exhibit "D ".
e. Construction- related vehicles including employee,
contractor and subcontractor vehicles; delivery
vehicles; and construction equipment including but not
limited to cranes and backhoes shall not park, idle,
stack or in any other way utilize Sunset Drive north
of its intersection with 20 Street at any time.
f. Construction- related items including storage sheds and
portable toilet facilities shall not be placed outside
the construction fence surrounding the property as
depicted in Exhibit "D ".
g. There shall be no deliveries to the property on
Sundays or on state and federal holidays, and there
shall be no deliveries to the property before 8am or'
after 5pm Mondays through Saturdays.
h. Palau shall install motion sensors on and around (1)
the Sunset Islands Guard House on Sunset Drive and (2)
the historic Sunset Island Bridge connecting Sunset -
Island Four with Miami Beach before construction. All
documentation relating to this monitoring shall be
provided to Sunset Islands on a monthly basis until
the foundation is complete and up to first floor.
i. Palau shall provide Sunset Islands with advanced
written notice (no less than 3 calendar days) of major
construction events such as street closures and road
closings. But Sunset Drive between 20 Street and the
bridge (including the intersection of Sunset Drive and
20 Street) shall remain open and clear at all times.
j. Palau shall maintain workers compensation coverage for
all general contractors and subcontractors (minimum
coverage $1,000,000 for property damage and personal
and bodily injury insurance for $1,000,000) for the
full duration of the project. Sunset Islands is listed
as a certificate holder and as an additional named
insured on these policies.
k. Sunset Islands shall support any effort by Palau to
obtain from the City of Miami Beach all documentation,
regarding the construction and condition of the Sunset
Islands Bridge.
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1. Palau shall not utilize any foundation system that
includes sheet or pile driving and instead shall use a
process such as auger piling. Sheet piles may be used
as necessary_for. foundation and elevator pit
construction.
m. Construction - related equipment such as cranes shall
not extend over Sunset Drive, the Sunset Islands
gatehouse or the historic Sunset Islands Bridge. If
such equipment is proposed to extend over Sunset
Drive, the Sunset Islands gatehouse or the historic
Sunset Islands Bridge Palau shall provide Sunset
Islands and the City of Miami Beach indemnification in
the form of a bond or an insurance policy in the event
of damage to those structures or any Sunset Island or
City of Miami Beach property by such equipment. The
form of said document(s) must be approved by Sunset
Islands and the City of Miami Beach.
n. Sunset Drive from 20 Street to the foot of the bridge
shall be watered twice daily (in the morning before
.gam and between 4 and 5pm) during construction to
reduce the impacts of dust on the surrounding
residential neighborhood during dust
activities.
o. Palau shall surround the property with an eight (8)
foot high fence and a wind resistant green
screening /fencing material to mitigate dust impacts on
adjoining and nearby properties, unless more - stringent
requirements are required under city regulations
10. The parties agree to mutual releases. Palau agrees to a
covenant not to sue certain non - parties. If those non-
parties sue Palau, Palau may then countersue those
individuals.
11. In the event Palau violates the terms of the settlement
agreement, Sunset Islands and Lens retain their right to
appear and comment before any public board or government
staff regarding the violation.
'12. Any violation may be remedied by any relief available at
law or in equity, including injunctive relief and /or '
damages and sanctions for contempt of court, by any party
to the agreement.
13. The agreement runs with the land and is binding upon the
parties and their successors and assigns.
14. The Agreement shall not become effective unless the
appropriate City of Miami Beach entity approves the plans
attached to the agreement as Exhibit "B" and Exhibit "C-
1„
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EXHIBIT C1
Landscape Plan for
Button Wood & Cathedral Trees
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