HomeMy WebLinkAboutFirst Amendment to Settlement AgmtLAW OFFICES
SHUBIN & BASS
P R O F E S S I O N A L A S S O C I A T I O N
Via Facsimile Transmission
And U.S. Mail
January 25, 2007
Mr. Tom Daly
The Development Group
1688 Meridian Avenue
#902
Miami Beach, FL 33139
Re: First Amendment to Settlement Agreement Between
City of Miami Beach and TRG- Alaska
Dear Tom:
For your review and records, please find attached correspondence from the
City of Miami Beach which attaches the First Amendment to Settlement
Agreement by and between the parties.
As always, don't hesitate to contact me should you have any questions.
Sincerely,
John K. Shubin
For the Firm
Enc.
cc: Matt Gorson, Esq.
Ms. Christina Cuervo
46 S.W. 1st Street, 3rd Floor, Miami, FL 33130 Ph: 305.381.6060 Fx: 305.381.9457 www.shubin bass, com
OFFICE OF THE CITY ATTORNEY
� O/VT" W we "
F L 0 R I D A
JOSE SMITH
City Attorney
January 19, 2007
Amy Huber, Esq.
Shubin & Bass
46 S. W. First Street
Third Floor
Miami, Florida 33130
Re: First Amendment to Settlement Agreement Between
City of Miami Beach and TRG- Alaska
Distributed To.
JKS JSS
AEH JJF
EDW
Telephone: (305) 673 -7470
Facsimile: (305) 673 -7002
Dear Amy:
Enclosed is a duly executed, certified copy of the First Amendment to Settlement
Agreement by and between the City of Miami Beach and TRG- Alaska, dated October 11,
2006.
If you have any questions, please feel free to contact me
Sin_=aly,
Assistant City Attorney
Enclosure
F:\atto \$all \Sheila \Letters.Mem \TRG - Alaska. HuberLtr
1700 Convention Center Drive -- Fourth Floor -- Miami Beach, Florida 33139
FIRST AMENDMENT TO
SETTLEMENT AGREEMENT
THIS FIRST AMENDMENT TO SETTLEMENT AG EMENT (the
"Amendment ") is made and entered into as of the day of - , 2006,
by and between: (1) the City of Miami Beach, Florida, a Florida municipal corporation
( "City "), (2) TRG- Alaska I, Ltd., a Florida limited partnership ( "A -I "), (3)TRG- Alaska III,
LLC, a Florida limited liability company ( "A -111 ") and TRG -Block 1, Ltd., a Florida limited
partnership ( "TRG Block 1," and together with A -1 and A -III, "Related ").
Introduction and Background
WHEREAS, the City of Miami Beach entered into a Settlement Agreement on
July 28, 2004 (the "Settlement Agreement ") with various entities defined therein as the
"Portofino Entities" and the "Related Entities;" and
WHEREAS, Related now has succeeded to all of the ownership interests in the
Land, as such term is defined in the Settlement Agreement, including TRG Block 1,
which has succeeded to the ownership interests in the Block One Parcel, as such term
is defined in the Settlement Agreement; and
WHEREAS, the City Commission adopted Resolution No. 2004 -25651 which
approved a concept plan for various parcels in the South Pointe area (the "Concept
Plan ") including the Block 1 Parcel; and
WHEREAS, the Concept Plan was formulated after an exhaustive public process
which included citizen review and numerous public meetings and workshops through an
ad hoc committee of concerned citizens and has also been reviewed by the City staff,
the Planning Board, and the Design Review Board, all of whom recommended approval
thereof, which resulted in the Concept Plan's approval by the City Commission; and
WHEREAS, the Concept Plan for the Block 1 Parcel[, as that term is used in
Section 142- 698(a)(4), City Code,] is proposed to be modified and the "Modified
Concept Plan" attached hereto as Exhibit "A" (the "Modified Concept Plan ") has been
reviewed by the City staff, the Planning Board, the Design Review Board, and an ad hoc
group of concerned citizens, all of whom have recommended approval thereof; and
WHEREAS, the Modified Concept Plan is submitted for approval through this
Amendment to the Settlement Agreement; and
WHEREAS, the developments on the Block 1 Parcel contemplated by the
Modified Concept Plan require certain changes to the City's Land Development
Regulations, which changes are listed on Exhibit B attached hereto (the "LDR
Amendments "), which LDR Amendments are being processed along with this
Amendment; and
WHEREAS, this Amendment is being entered into to allow implementation of the
Modified Concept Plan and adoption of the LDR Amendments, which shall permit the
development contemplated in such Modified Concept Plan to proceed.
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereby agree as follows:
1. Recitations The foregoing recitations are true and correct and are
incorporated herein by this reference.
2. Modified Development Approvals
(a) Condition to Obligation.
(i) The obligations of Related under this Amendment are
specifically conditioned upon the City and /or its boards, departments or agencies acting
in their independent, quasi-judicial and /or legislative governmental capacity to consider
and formally approve the Modified Concept Plan and the LDR Amendments (the
"Modified Development Approvals ".)
(ii) The Modified Development Approvals shall be deemed
approved at such time as all requisite governmental action has become final, binding
and no longer subject to appeal, and if appealed, all such appeals shall have been
finally and successfully resolved, which shall herein be referred to as having obtained
the "Modified Final Approvals."
(iii) In the event that all of the Modified Development Approvals,
for any reason, have not been obtained on or before December 31, 2006 and /or the
Modified Final Approvals have not been obtained by June 30, 2007, or, in the event that
any of the required Modified Development Approvals have been denied by the City or
other applicable governmental authority, then in any such event Related or the City in
their respective sole option, may elect to terminate this Amendment by written notice of
termination to the other parties (signed by the parties or by their respective attorneys,)
whereupon all of the provisions and obligations of the parties under this Amendment
shall fully terminate and be null and void, and all Modified Development Approvals
which have been theretofore adopted shall be treated by the City and the other parties
as revoked and of no further force and effect. Related shall have the right in its sole
discretion to extend the foregoing deadlines by instrument in writing executed by its
attorneys. Should this Amendment terminate, the parties agree to promptly execute
and deliver to each other such other documentation as may be required to confirm the
termination and revocation, and the parties shall otherwise be restored to the condition
that existed immediately prior to the date of execution of this Amendment. The
provisions of this paragraph 2(a)(iii) shall survive the termination of this Amendment.
(Pv) If the Modified Final Approvals are obtained prior to the
timely delivery of a written notice of termination permitted under paragraph 2(a)(iii)
above, then there shall be no further right of termination hereunder. In the event this
Amendment is terminated pursuant to paragraph 2(a)(iii) above, Related shall have the
right to pursue development of Block 1 according to the original Concept Plan as
modified by the City Commission on April 11, 2006 (as to the south building and
subsurface easement rights), as if this Amendment had never taken place. The parties
hereby covenant not to sue on or appeal any actions that any of the parties take or do
not take on applications in pursuit of the Modified Development Approvals.
N
(b) Exercise of City Discretion The parties recognize and agree that
certain provisions of this Amendment will require the City and /or its boards, departments
or agencies, acting in their governmental capacity, to consider certain changes in the
City's Comprehensive Plan, Land Development Regulations and other applicable City
codes, plans or regulations, as well as to consider other governmental actions as set
forth in this Amendment. All such considerations and actions shall be undertaken in
accordance with established requirements of federal or state statutes and City or county
ordinances, or other applicable law, in the exercise of the City's jurisdiction under the
police power, as well as the requirements of this Amendment. Nothing in this
Amendment is intended to limit or restrict the powers and responsibilities of the City in
acting on applications for any of the Modified Development Approvals, by virtue of the
fact that the City may have consented to the filing of such applications, solely in its
capacity as the owner of affected lands or as the adjacent property owner, or by virtue
of the City's entering into this Amendment. The parties recognize that the City, and its
boards, retain sole discretion under their police powers as to whether to grant or deny
the applications for Modified Development Approvals. The parties fully recognize and
agree that these proceedings shall be conducted openly, fully, freely and fairly in full
accordance with law and with both procedural and substantive due process to be
accorded the applicant and any member of the public. Nothing contained in this
Amendment shall entitle Related to compel the City to take any actions processing or
approving the applications for Modified Development Approvals, or other actions
contemplated by this Amendment, save and except the provisions of paragraphs 3 and
4 below if the Modified Final Approvals are obtained prior to a termination of this
Amendment.
3. Paragraphs 5 and 6 of the Settlement Agreement are hereby amended as
follows:
a. Paragraph 5 'is supplemented as follows:
The parties agree that the concept plan may be amended
from time to time with the approval of both Related and the
City Commission.
b. Paragraph 6 of the Settlement Agreement is supplemented
as follows:
A -1 acknowledges receipt of a concept plan for public
facilities in South Pointe Park as set forth in the BODR
approved by the City Commission on July 27, 2005 and
pursuant to Resolution 2005 - 25978. The City must provide
written approval of the project cost as submitted by A -1 and
its contractor and provide a notice to proceed for A -1 and its
contractor to begin construction by no later than March 30,
2007, time being of the essence; failing which A -1 shall be
released from any and all obligations to build such public
facilities otherwise required by the Settlement Agreement.
4. Related Contribution Upon receipt of the Modified Final Approvals and
receipt of an Initial Building Permit for the development of the Modified Concept Plan for
3
the Block 1 Parcel, Related shall contribute One Hundred Seventy Four Thousand Six
Hundred and no /100 Dollars ($174,600.00) towards the City's Beachwalk Projector
other public project south of Fifth Street.
5. Construction Staging Area Starting on the date that construction activity
for the Block 1 project commences and continuing until that date that is two (2) years
thereafter, the City shall provide to Related for construction staging purposes no less
than 1,320 square feet of public right -of -way for construction staging, which at Related's
request shall be as contiguous as reasonably possible, located immediately adjacent to
the Block I Parcel. In exchange, Related shall pay to the City the aggregate sum of
Twenty Six Thousand Four Hundred and no /100 Dollars ($26,400.00), payable on the
same day that the contribution required under paragraph 4 above is due. If Related
requires additional construction staging area and /or final certificates of occupancy have
not been issued by the end of such two (2) year period, then at Related's request the
City shall provide such additional land (to the extent available) and /or extend such two
(2) year period in exchange for payment by Related to the City of the sum of Ten
Dollars ($10.00) per square foot per annum.
6. Northwest Parcel Upon receipt of final approvals for the modifications to the
Concept Plan outlined in this memo and corresponding amendments to the Land Development
Regulations TRG Block 1 hereby commits that upon receipt of a final certificate of
occupancy or certificate of completion (or other equivalent certification of completion
issued by the City's Building Official) on the improvements on the Northwest Parcel of
the Block 1 Parcel, as more particularly described in Exhibit "C" attached hereto (the
"Northwest Parcel "), to allow public access from dawn to dusk on such Northwest
Parcel as a park, with the exclusion of periods of maintenance and further construction
on such Northwest Parcel. Prior to issuance of a building permit (or other equivalent
permit) for the structure on the Northwest Parcel, TRG Block 1 shall execute an
easement agreement providing for public access for use of the Northwest Parcel as a
park, which rights of access shall not commence until the certificate provided for above,
and provide for (in such easement agreement or other agreement acceptable to the
City) perpetual maintenance of the Northwest Parcel by TRG Block 1(or its successors
in interest), or by the condominium association to be formed in connection with the
Block 1 project, or other entity (which entity and source of funding shall be acceptable to
and agreed to in writing by the City Attorney and City Manager) which easement
agreement shall be in a form reasonably acceptable to the Related Entities and the City.
7. Except as specifically amended by this Amendment, the provisions of the
Settlement Agreement remain in full force and effect.
4
EXECUTED as of the date first above written in several counterparts, each of
which shall be deemed an original, but all constituting only one agreement.
Signed, sealed and delivered
in the presence of:
Attest: w�
City Clerk.
Robert Parcher
/p
ate:
7tne es: TRG -BLOCK I, LTD., a Florida limited
partnership
ri hf Name: - By:
N e dYG /h• -3,&AJ5 - 1AJ
Print Name: - LJkL.SiCCi U
TRG - ALASKA I, LTD., a Florida limited
partnership
;H, FLORIDA,
n
Dermer
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
By:
N e: �Y� ` M• ?lLae�lSo.tJ
TRG - ALASKA III, LLC., a Florida limited
liability company
l� 2W,
'
5
EXHIBIT LIST
A
C
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T:\AGENDA\2006 \oct1106 \Regular \TRG ALASKA AMENDMENT TO SETTLEMENT AGREEMENT(v3) rev GMH.DOC
EXHIBIT LIST
A
Modified Concept Plan
B
LDR Amendments
C
Northwest Parcel
Exhibit "A"
"Modified Concept Plan"
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Exhibit "B"
LDR Amendments
ORDINANCE NO. 2006 -3539
AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE
CITY OF MIAMI BEACH, FLORIDA, AMENDING THE CODE OF THE
CITY OF MIAMI BEACH, BY AMENDING SECTION 114-1,
'DEFINITIONS," CLARIFYING THE MEANING OF `°SITE;"
AMENDING CHAPTER 142, "ZONING DISTRICTS AND
REGULATIONS," ARTICLE II, "DISTRICT REGULATIONS,"
DIVISION 18, "PS PERFORMANCE STANDARD DISTRICT,"
CLARIFYING THAT FLOOR AREA MAY BE DISTRIBUTED ON
BLOCK 1 THROUGH COVENANTS IN LIEU OF UNITY OF TITLE;
PROVIDING FOR REPEALER, SEVERABILITY, CODIFICATION AND
AN EFFECTIVE DATE.
WHEREAS, the City of Miami Beach entered into a Settlement Agreement on July 28,
2004 with various entities known as the "Portofino Properties" and certain successors in interest
that are part of the Related Group of Florida; and
WHEREAS, the City Commission adopted Resolution No. 2004 -25651 which approved
a concept plan for various parcels in the South Pointe area including a parcel known as Block l;
and
WHEREAS, the Concept Plan was formulated after an exhaustive public process which
included citizen review and numerous public meetings and workshops through an ad hoc
committee of concerned citizens and has also been reviewed by the City staff, the Planning
Board, and the Design Review Board, all of whom have recommended approval thereof; and
WHEREAS, the Concept Plan for the Block 1 Properties as that term is used in the
settlement agreement and/or related documents, has been modified and the "Modified Concept
Plan" has been reviewed by the City staff, the Planning Board, the Design Review Board, and
citizens, all of whom have recommended approval thereof; and
WHEREAS, the Modified Concept Plan has been approved by the City Commission
through the adoption of Resolution No. 2006 -2637 Passed and adopted on theilthday of octpber
2006;and
WHEREAS, the developments on the Block 1 Properties contemplated by the Settlement
Agreement and Concept Plan require certain changes to the City's Land Development
Regulations; and
WHEREAS, this Ordinance is being adopted to allow implementation of that Modified
Concept Plan through the adoption of certain changes to the Land Development Regulations to
permit the development contemplated in such Modified Plan to proceed; and
WHEREAS, this amendment to the Land Development Regulations was not required by
the Settlement Agreement but was independently determined and recommended appropriate for
adoption by the City staff and the Planning Board, based upon public input after public hearing,
following all requirements of procedural due process attendant thereto; and
WHEREAS, the Property in Block 1 affected by this amendment is described in section
142- 698(4) as follows: "The "Block 1 Properties" shall mean Lots 1 -3, 5 -13 (and alley adjacent
thereto), 17, Block 1, Ocean Beach Florida, PB2, Pg38, Public Records of Miami -Dade County."
NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA:
SECTION 1. Section 114 -1, "Definitions," is hereby amended as follows:
The following words, terms and phrases when used in this subpart B, shall have the meanings
ascribed to them in this section, except where the context clearly indicates a different meaning:
Site means a parcel of land considered as a unit, capable of being occupied by a use
permitted in this subpart, possessing a continuous or unbroken boundary not divided by a public
street, alley, right -of -way, private street, or waterway. Except for properties which are involved
in the transfer of development rights where the site is that property within a project that has been
approved under chapter 118, article V.
SECTION 2. Chapter 142, "Zoning Districts And Regulations ", Article II, "District
Regulations ", Division 18, "PS Performance Standard District ", Section 142 -698, of the Land
Development Regulations, is hereby amended to read as follows:
Sec. 142 -698. Commercial performance standard area requirements.
s
(d) Notwithstanding the above floor area ratio limits, 75 spaces of required parking located
on Block 51 for the Retail Parcel pursuant to a covenant under section 130 -36, shall not be
counted as permitted floor area. Further, the floor area on the Block 51 Properties and the Block
51 Swap Property may be distributed among such properties by covenant in lieu of unity of title;
and the floor area on the Block 1 Properties may be distributed among such properties within the
block by covenant in lieu of unity of title.
SECTION 3. REPEALER. All Ordinances or parts of Ordinances in conflict herewith be and
the same are hereby repealed.
SECTION 4. SEVERABILITY. If any section, subsection, clause or provision of this
Ordinance is held invalid, the remainder shall not be affected by such invalidity.
2
SECTION 5. CODIFICATION. It is the intention of the City Commission that this Ordinance
be entered into the Code, and it is hereby ordained that the sections of this Ordinance may be
renumbered or relettered to accomplish such intention; and that the word "ordinance" may be
changed to "section" or other appropriate word. The Exhibits to this Ordinance shall not be
codified, but shall be kept on file with this Ordinance in the City Clerk's Office.
SECTION 6. EFFECTIVE DATE.
This Ordinance shall take effect ten days following
PASSED and ADOPTED this 11 th day of
MAYOR
..
David Dermer
ATT T:
CITY CLERK
Robert Parcher
APPROVED AS TO
FORM AND LANGUAGE
EXECUTION
tQ y
I OU
Date
First Reading: July 12, 2006
Second Reading: October 11, 2006
Verified by:
Underscore
T:WGENDAl20061oct1106rRegular \Proposed Block 1 Ordinance rev GH 101106.DOC
3
Exhibit "C"
"Northwest Parcel"
Legal Description
LOT 17, BLOCK 1 OF OCEAN, BEACH, FLA., ACCORDING TO THE PLAT
THEREOF AS RECORDED IN PLAT BOOK 2, PAGE 38 OF THE PUBLIC
RECORDS OF MIAMI-DADE COUNTY, FLORIDA. SAID PARCEL
CONTAINS 6,500 SQUARE FEET MORE OR LESS.
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