2013-28143 Reso RESOLUTION NO. 2013 -28143
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF
THE CITY OF MIAMI BEACH, FLORIDA, APPROVING A
MODIFICATION TO SETTLEMENT AGREEMENT BETWEEN 120
OCEAN DRIVE LLC, AND THE CITY OF MIAMI BEACH, AND
AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE
THE MODIFICATION, AND AUTHORIZING THE CITY MANAGER
AND CITY ATTORNEY TO TAKE SUCH ACTIONS AS MAY BE
NECESSARY TO CARRY OUT THE INTENT HEREOF.
WHEREAS, lawsuits and claims by Micky Biss, individually, and USA Express,
Inc., a Florida corporation, were settled pursuant to a Settlement Agreement dated July 26,
2006 (the "Settlement Agreement ") between The Congress Group, Inc., a Massachusetts
domestic profit corporation, Ocean Drive, CFI, LLC, a Delaware Limited Liability
Company (collectively the "Congress Group ") and the City; and
WHEREAS,the Settlement Agreement relates to those parcels of land located at 120 -
130 Ocean Drive within the City, and a residential project with associated parking and
retail/restaurant use approved to be constructed on the Land under Building Permit No. B-
9900085 (modified to B- 0001810, B- 0101591, and then B0702576).
WHEREAS, 120 Ocean Drive LLC ( "Ocean") is the successor in interest to the
Congress Group, having purchased fee simple title to the Land on October 9, 2012, and Ocean
is the developer of the Project, as modified as proposed herein; and
WHEREAS, Ocean seeks to modify the Pen in accordance with plans prepared by
the architectural firms of Bermello, Ajamil &. Partners, Inc. and Rene Gonzalez Architect,
Inc. (the "Final Schematic Design "), which Final Schematic Design has been approved by the
City's Historic Preservation Board (HPB) on January 15, 2013, HPB file no. 7346.
Following approval of this Modification to Settlement Agreement, the project will be
considered by the Planning Board for approval of a conditional use permit for mechanical
parking; and
WHEREAS, the Final Schematic Design proposes to modify the Project by reducing
heights of the building's tower and pedestal, decreasing the density of the development
program, and by incorporating elevations and landscaping that are intended to be
harmonious with the surroundings. The resulting building is approximately ten feet (10')
lower in height, excluding mechanical structures, than the Project, has a two -story
mechanical parking garage, ten (10) residential units (reduced from thirty -five (35)), pool
deck, one commercial space, which is approximately 700 square feet and one meeting room;
and
WHEREAS, for the foregoing reasons, among others, the City Attorney and City
Manager recommend that the City Commission approve the modification to the
Settlement Agreement, authorizing the Mayor and City Clerk to execute the Modification
to the Settlement Agreement, subject to such further minor modifications as may be
necessary in the best interests of the City that are acceptable to the City Manager and the
City Attorney, and to authorize the City Manager and the City Attorney to take such
further actions as may be necessary to accomplish the intent hereof, subject to such
matters as remain in the discretion of the City Commission.
NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND
CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the
Mayor and City Commission approve the Modification to the Settlement Agreement with
120 Ocean Drive LLC, and authorize the Mayor and City Clerk to execute the
Modification to the Settlement Agreement in such final form as the City Manager and
City Attorney approve, and authorizing the City Manager and City Attorney to take such
further actions as may be necessary to accomplish the intent hereof, subject to such
matters as remain in the discretion of the City Commission.
PASSED and ADOPTED this 6A day of 2 r "&r , 2013.
ATTEST:
AYOR
CITY C ERK APPROVED AS TO
P �� 1 183 ORM AND LANGUAGE
& FO ECUTION
,A
� ey Date
iIJCORPi ORATED
T:\AGENDA\2013\Eebruary 6 \12 e n n eeitlBmdir1�k greement res.doc
2
COMMISSION ITEM SUMMARY
Condensed Title:
A Resolution approving a modification to Settlement Agreement between the City of Miami Beach and 120 Ocean
Drive, LLC, a Florida Limited Liability Company, concerning development of pro at 120 Ocean Drive.
Key Intended Outcome Supported:
N/A
Supporting Data (Surveys, Environmental Scan, etc.):
N/A
Item Summa /Recommendation:
The Settlement Agreement relates to land located at 120 - 130 Ocean Drive and a residential project with
associated parking and retail /restaurant use approved to be constructed on the Land under Building Permit
No. B- 9900085 (modified to B- 0001810, B- 0101591, and then B0702576).
120 Ocean Drive LLC is the successor in interest to the Congress Group, having purchased fee simple title
to the Land on October 9, 2012.
Ocean seeks to modify the Permit in accordance with plans prepared by the architectural firms of Bermello,
Ajamil &. Partners, Inc. and Rene Gonzalez Architect, Inc. (the "Final Schematic Design "), see attached
renderings which Final Schematic Design has been approved by the City's Historic Preservation Board
(HPB) on January 15, 2013, HPB file no. 7346. Following approval of this Modification to Settlement
Agreement, the project will be considered by the Planning Board for approval of a conditional use permit for
mechanical parking.
The Administration recommends adopting the Resolution.
Advisory Board Recommendation:
Financial Information:
Source of Amount Account Approved
Funds: 1
2
3
4
OBPI Total
Financial Impact Summary:
City Clerk's Office Legislative Tracking:
Gary Held Ext. 6532
Sign-Offs:
Department Director Assistant City Man ger ity Manager
JGG KGB
T:\HGENDA\2013 \February 6 \120 Ocean Drive - Summary.docx
�
MIAMIBEACH
A GENDA ITEM
DATE -0
m ► MIAMI BEACH
City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33139, www.miamibeachfl.gov
COMMISSION MEMORANDUM
TO: Mayor Matti Herrera Bower and Members of the City Commission
FROM: Kathie G. Brooks, Interim C' Mana
Jose Smith, City Attorney
DATE: February 6, 2013 `
SUBJECT: 120 Ocean Drive — Modification to Settlement Agreement
A RESOLUTION APPROVING A MODIFICATION TO SETTLEMENT
AGREEMENT BETWEEN THE CITY OF MIAMI BEACH AND 120 OCEAN
DRIVE, LLC, A FLORIDA LIMITED LIABILITY COMPANY, CONCERNING
DEVELOPMENT OF PROPERTY AT 120 OCEAN DRIVE.
ADMINISTRATION AND CITY ATTORNEY RECOMMENDATION
Approve the Resolution.
BACKGROUND
Lawsuits and claims by Micky Biss, individually, and USA Express, Inc., a Florida
corporation, were settled pursuant to a Settlement Agreement dated July 26, 2006 (the
"Settlement Agreement ") between The Congress Group, Inc., a Massachusetts
domestic profit corporation, Ocean Drive, CFI, LLC, a Delaware Limited Liability
Company (collectively the "Congress Group ") and the City.
The Settlement Agreement relates to land located at 120 - 130 Ocean Drive and a
residential project with associated parking and retail /restaurant use approved to be
constructed on the Land under Building Permit No. B- 9900085 (modified to B- 0001810,
B- 0101591, and then B0702576).
120 Ocean Drive LLC is the successor in interest to the Congress Group, having
purchased fee simple title to the Land on October 9, 2012.
Ocean seeks to modify the Permit in accordance with plans prepared by the
architectural firms of Bermello, Ajamil &. Partners, Inc. and Rene Gonzalez Architect,
Inc. (the "Final Schematic Design "), see attached renderings which Final Schematic
Design has been approved by the City's Historic Preservation Board (HPB) on January
15, 2013, HPB file no. 7346. Following approval of this Modification to Settlement
Agreement, the project will be considered by the Planning Board for approval of a
conditional use permit for mechanical parking.
The Final Schematic Design proposes to modify the Project by reducing heights of the
building's tower and pedestal, decreasing the density of the development program, and
by incorporating elevations and landscaping that are intended to be harmonious with
the surroundings. The resulting building is approximately ten feet (10') lower in height,
excluding mechanical structures, than the Project, has a two -story mechanical parking
garage, ten (10) residential units (reduced from thirty -five (35)), pool deck, one
commercial space, which is approximately 700 square feet and one meeting room (the
Commission Memorandum
120 Ocean Drive — Modification to Settlement Agreement
February 6, 2013 Page 2 of 2
"Development ").
ANALYSIS
The proposed building is approximately ten feet (10') lower in height, excluding
mechanical structures than the Project, has a two -story mechanical parking garage, ten
(10) residential units, pool deck, one commercial space, which is approximately 700
square feet and one meeting room (the "Development "). The Project, as originally
designed and as evidenced by the existing and valid Permit, was intended to be a
building that was 204' in height, excluding mechanical structures, with a five -story
parking pedestal.
The design of the Project, as evidenced by the Permit, bore no relationship, either in
scale or massing, to its direct neighbors. The reduced scale and massing of the
Development is an improvement over the original design of the Project, since the
reductions in scale and massing create an improved relationship to the neighboring
properties and a resulting improvement in the fabric of the built environment. In
addition, construction of the Project, as originally permitted would have added thirty -
five (35) dwelling units to the area, while the Development will only have ten (10)
residential units. The Development reduces density and constitutes a further benefit to
the City.
The parties agree that the original Project continues to be grandfathered and vested,
both as to design and use, as of the zoning in place at the time that Biss submitted
their completed application in 1993 and received Design Review Board approval; (ii)
the Final Schematic Design, as approved by the HPB, is substantially within the scope
of the Permit and Ocean may obtain a modified or new building permit (as determined
by the Building Official) to construct the Project pursuant to the Final Schematic
Design; and (iii) Development Approvals of the Final Schematic Design, and approval
of the amended Permit, will not divest Ocean's vested rights in the Permit, which
remains grandfathered. Ocean agrees to pay such fees as the Building Official
determines are appropriate to the review of the application seeking building permits for
the Final Schematic Design.
The applicant has informed the City that they have reached out to the neighborhood
and have obtained an endorsement from the South of Fifth Neighborhood Association.
The Project has obtained Historic Preservation Board approval and must still obtain a
Planning Board approval, through additional public hearings, for the modification of the
parking structure by the use of automobile elevators.
CONCLUSION
The Administration and City Attorney recommend that the City Commission approve the
modification to the Settlement Agreement by adopting the Resolution.
KGB /JS /, GMH
T:\AGENDA\2013 \February 6 \120 Ocean Drive - Memo to Commn 1- 25- 13.docx
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PLANNING DEPARTMENT
HISTORIC PRESERVATION BOARD
STAFF REPORT
FROM: Richard G. Lorber, AICP, LEED AP
Acting Planning Director
DATE: January 15, 2013 Meeting
RE: Historic Preservation File No. 7346
120 Ocean Drive
The applicant, 120 Ocean Drive, LLC., is requesting modifications to a previously issued and
active building permit which is subject to a settlement agreement with the City of Miami Beach.
The Design Review Board previously approved the design for a new residential/ commercial
building including a parking garage on a vacant site.
LEGAL DESCRIPTION:
Lots 4, 5 and 6, LESS the East 15 feet thereof, Block 2 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.
HISTORY:
The subject site has a lengthy history dating back to the early 1990s. On August 10, 1993, the
Design Review Board reviewed and approved the design for a new 18 -story, 43,818 square foot
multi - family building. In July 2006, the applicant entered into a settlement agreement with the
City of Miami Beach allowing for the full building permit for the DRB approved non - conforming
building to be re- issued, which it was on September 1, 2009.
It is important to note that the Ocean Beach Historic District was not designated until February
20, 1996. At the time of designation, there were two buildings located on the subject site and
both were identified as 'Contributing.'
SITE DATA:
Zoning - RPS -4 (Residential High Density)
Future Land Use Designation - RPS -4 (Residential High Density)
Lot Size - 19,500 S.F.
Proposed FAR - 43,816 S.F. / 2.25, as represented by the applicant
Proposed Height - 16- stories / 192' -10 ", 201' -7" to highest non - habitable
projection
Existing Use - Vacant Site
Proposed Use - Multifamily Residential (10 units)
i
Page 2 of 10
HPB File No. 7346
Meeting Date: January 15, 2013
FORMER STRUCTURES:
126 Ocean Drive: This 2 -story structure was designed by architect Henry Hohauser in the Art
Deco style of architecture and constructed in 1936. The subject structure was listed as
Contributing to the Ocean Beach Historic District and was subsequently demolished in 2000
through a previously approved Design Review Board application.
130 Ocean Drive This 2 -story structure was designed by architect Gilbert Fein in the Post War
Modern style of architecture and constructed in 1952. The subject structure was listed as
Contributing to the Ocean Beach Historic District and was also demolished in 2000 through a
previously approved Design Review Board application.
THE PROJECT:
The applicant has submitted plans entitled "120 Ocean Drive ", as prepared by Rene Gonzalez
Architect Inc. and Bermello - Ajamil & Partners -Inc., dated November 16, 2012.
The proposed application includes design and massing modifications to the previously approved
project, including the incorporation of mechanical parking.
COMPLIANCE WITH ZONING CODE:
A preliminary review of the project indicates that the application, as proposed, may be
inconsistent with the following portions of the City Code:
1. Review and approval of the Planning Board will be required for the proposed mechanical
parking lifts.
The above noted comments shall not be considered final zoning review or approval. These and
all zoning matters shall require final review and verification by the Zoning Administrator prior to
the issuance of a Building Permit.
ACCESSIBILITY COMPLIANCE:
Additional information will be required for a complete review for compliance with the Florida
Building Code 2001 Edition, section 11 (Florida Accessibility Code for Building Construction).
These and all accessibility matters shall require final review and verification by the Building
Department prior to the issuance of a Building Permit.
PRELIMINARY CONCURRENCY DETERMINATION:
In accordance with Chapter 122 of the Code of the City of Miami Beach, the Transportation and
Concurrency Management Division has conducted a preliminary concurrency evaluation and
determined that the project does meet the City's concurrency requirements and level -of- service
standards.
A final concurrency determination shall be conducted prior to the issuance of a Building Permit.
Mitigation fees and concurrency administrative costs shall be paid prior to the project receiving
any Building Permit. Without exception, all concurrency fees shall be paid prior to the issuance
of a Temporary Certificate of Occupancy or Certificate of Occupancy.
COMPLIANCE WITH CERTIFICATE OF APPROPRIATENESS CRITERIA:
A decision on an application for a Certificate of Appropriateness shall be based upon the
following:
Page 3 of 10
HPB File No. 7346
Meeting Date: January 15, 2013
I. Evaluation of the compatibility of the physical alteration or improvement with surrounding
properties and where applicable, compliance with the following criteria pursuant to
Section 118- 564(a)(1) of the Miami Beach Code (it is recommended that the listed
criteria be found Satisfied, Not Satisfied or Not Applicable, as so noted):
a. The Secretary of Interior's Standards for Rehabilitation and Guidelines for
Rehabilitating Historic Buildings as revised from time to time.
Satisfied
b. Other guidelines /policies /plans adopted or approved by Resolution or Ordinance
by the City Commission.
Satisfied
II. In determining whether a particular application is compatible with surrounding properties,
the Board shall consider the following criteria pursuant to Section 118- 564(a)(2) of the
Miami Beach Code (it is recommended that the listed criteria be found Satisfied, Not
Satisfied or Not Applicable, as so noted):
a. Exterior architectural features.
Satisfied
b. General design, scale, massing and arrangement.
Satisfied
C. Texture and material and color.
Satisfied
d. The relationship of a, b, c, above, to other structures and features of the district.
Satisfied
e. The purpose for which the district was created.
Satisfied
f. The relationship of the size, design and siting of any new or reconstructed
structure to the landscape of the district.
Satisfied
g. An historic resources report, containing all available data and historic
documentation regarding the building, site or feature.
Not Applicable
h. The original architectural design or any subsequent modifications that have
acquired significance.
Not Applicable
Ill. The examination of architectural drawings for consistency with the criteria pursuant to
Section 118- 564(a)(3) of the Miami Beach Code and stated below, with regard to the
aesthetics, appearances, safety, and function of any new or existing structure, public
interior space and physical attributes of the project in relation to the site, adjacent
structures and properties, and surrounding community. The criteria referenced above
Page 4 of 10
HPB File No. 7346
Meeting Date: January 15, 2013
are as follows (it is recommended that the listed criteria be found Satisfied, Not Satisfied
or Not Applicable, as so noted):
a. The location of all existing and proposed buildings, drives, parking spaces,
walkways, means of ingress and egress, drainage facilities, utility services,
landscaping structures, signs, and lighting and screening devices.
Satisfied
b. The dimensions of all buildings, structures, setbacks, parking spaces, floor area
ratio, height, lot coverage and any other information that may be reasonably
necessary to determine compliance with the requirements of the underlying
zoning district, and any applicable overlays, for a particular application or project.
Not Satisfied; See Zoning Analysis
C. The color, design, surface finishes and selection of landscape materials and
architectural elements of the exterior of all buildings and structures and primary
public interior areas for developments requiring a building permit in areas of the
city identified in section 11 B -503.
Satisfied
d. The proposed structure, and /or additions to an existing structure is appropriate to
and compatible with the environment and adjacent structures, and enhances the
appearance of the surrounding properties, or the purposes for which the district
was created.
Satisfied
e. The design and layout of the proposed site plan, as well as all new and existing
buildings and public interior spaces shall be reviewed so as to provide an
efficient arrangement of land uses. Particular attention shall be given to safety,
crime prevention and fire protection, relationship to the surrounding
neighborhood, impact on preserving historic character of the neighborhood and
district, contiguous and adjacent buildings and lands, pedestrian sight lines and
view corridors.
Satisfied
f. Pedestrian and vehicular traffic movement within and adjacent to the site shall be
reviewed to ensure that clearly defined, segregated pedestrian access to the site
and all buildings is provided for and that any driveways and parking spaces are
usable, safely and conveniently arranged and have a minimal impact on
pedestrian circulation throughout the site. Access to the site from adjacent roads
shall be designed so as to interfere as little as possible with vehicular traffic flow
on these roads and pedestrian movement onto and within the site, as well as
permit both pedestrians and vehicles a safe ingress and egress to the site.
Satisfied
g. Lighting shall be reviewed to ensure safe movement of persons and vehicles and
reflection on public property for security purposes and to minimize glare and
reflection on adjacent properties and consistent with a City master plan, where
applicable.
Satisfied
a
i
Page 5 of 10
HPB File No. 7346
Meeting Date: January 15, 2013
h. Landscape and paving materials shall be reviewed to ensure an adequate
relationship with and enhancement of the overall site plan design.
Satisfied
i. Buffering materials shall be reviewed to ensure that headlights of vehicles, noise,
and light from Structures are adequately shielded from public view, adjacent
properties and pedestrian areas.
Satisfied
j. Any proposed new structure shall have an orientation and massing which is
sensitive to and compatible with the building site and surrounding area and
which creates or maintains important view corridor(s).
Satisfied
k. All buildings shall have, to the greatest extent possible, space in that part of the
ground floor fronting a sidewalk, street or streets which is to be occupied for
residential or commercial uses; likewise, the upper floors of the pedestal portion
of the proposed building fronting a sidewalk street, or streets shall have
residential or commercial spaces, or shall have the appearance of being a
residential or commercial space or shall have an architectural treatment which
shall bufferthe appearance of a parking structure from the surrounding area and
is integrated with the overall appearance of the project.
Satisfied
1. All buildings shall have an appropriate and fully integrated rooftop architectural
treatment which substantially screens all mechanical equipment, stairs and
elevator towers.
Satisfied
M. Any addition on a building site shall be designed, sited and massed in a manner
which is sensitive to and compatible with the existing improvement(s).
Not Applicable
n. All portions of a project fronting a street or sidewalk shall incorporate an amount
of transparency at the first level necessary to achieve pedestrian compatibility.
Satisfied
o. The location, design, screening and buffering of all required service bays,
delivery bays, trash and refuse receptacles, as well as trash rooms shall be
arranged so as to have a minimal impact on adjacent properties.
Satisfied
STAFF ANALYSIS:
Normally a Design Review Board application approved in 1993 and building permit initially
issued in 1999 would have expired; however, through a settlement agreement with the City of
Miami Beach, the applicant has been able to keep the previously issued full building permit
active. As a result, the applicant is permitted to construct the previously approved non-
conforming multi - family residential tower as approved by the Design Review Board. While
Page 6 of 10
HPB File No. 7346
Meeting Date: January 15, 2013
dramatic for its shear mass alone, the circus colored 1993 Arquitectonica design is thoroughly
out of scale and character with the Ocean Beach Historic District, as well as inconsistent with
the City's current zoning ordinance. It is important to note, however, that the original
Arquitectonica design has been fully permitted and can be built as approved and likely will be if
an improved design for the exterior envelope is not approved by the Historic Preservation Board.
While staff and the Board cannot require that this mammoth structure be reduced in size, the
current owners are willing to substantially improve upon the original design for two reasons.
Firstly, the applicant desires to create a more coherent and marketable floor plan for the
residential units which is not bisected by a central vertical circulation core, as previously
approved. And secondly, the applicant wishes to neutralize the aggressive character and nature
of the 1993 design. Design architect, Rene Gonzalez Architect Inc., is proposing to incorporate
fretted glass materials on all elevations in an effort to "dematerialize" the otherwise massive
structure. Additionally, in an effort to respond to the lower scale historic buildings, including the
Brown's Hotel, the City's first hotel which opened for the 1915/1916 season, the height and floor
plans of the pedestal portion have been substantially modified to reduce the pedestal height
from 56' -8" to 41' -0" through the added use of mechanical parking systems. This reduction of
height along with skillfully selected materials and sensitive design will create a significantly more
desirable pedestrian experience along Ocean Drive. The three dimensional rendering provided
by the applicant best illustrates the stark contrast between the currently proposed pedestal and
the overly busy, harsh design of the previously approved project with its simulated city `road
maps' gracing all four elevations in primary colors.
In addition, the overall height of the structure has been decreased 10 feet. As the proposed
structure is nearly 200 feet in height, virtually all elevations will be highlyvisible and will become
primary elevations. The architect has acknowledged this fact and has focused on trying to
greatly improve the caliber of these elevations while minimizing their apparent mass. Staff
believes that Rene Gonzalez has very successfully achieved this given the magnitude of the
task at hand.
Finally, the applicant has commissioned noted local landscape architect, Raymond Jungles Inc.
to redesign the previously approved landscape plan in a manner which is more consistent with
the character and quality of early Florida landscape. A larger indented landscape area has been
proposed at south end of the property in a gesture of acknowledgement to the Brown's Hotel,
and results in a landscape plan which is likely more visually consistent with the environment of
the early Beach. Further, the revised landscape plan creates a partial natural setting for the
historic Brown's Hotel which will help to mitigate the impact of the nearly 200' tower to its
immediate north. Similarly, the area along Ocean Drive has been further landscaped in a
manner more consistent with the surrounding historic district.
In conclusion, staff commends the applicant and the design team on the skillful modifications of
the unfortunate permitted design. The proposed design is significantly more sensitive to the
surrounding historic district, is lower in height, has greater transparency and incorporates higher
quality building and landscape materials. Although staff can never be comfortable with the
shear height and mass of the previously approved building, it is important to note that the
proposed modifications will substantially improve the quality of the building and will result in a
more compatible design within the Ocean Beach Historic District and surrounding South of Fifth
Neighborhood, and consequently recommends approval.
RECOMMENDATION:
Page 7 of 10
HPB File No. 7346
Meeting Date: January 15, 2013
In view of the foregoing analysis, staff recommends the application be approved, subject to the
following conditions:
1. Revised elevation, site plan and floor plan drawings shall be submitted; at a minimum,
such drawings shall incorporate the following:
a. The final design and details of the proposed surface materials and finishes,
including samples, shall be submitted, in a manner to be reviewed and approved
by staff.
b. The final design and details of all exterior lighting shall be provided, in a manner
to be reviewed and approved by staff. Exterior lighting shall be designed in a
manner to not have an adverse overwhelming impact upon the historic hotel
structures or the surrounding historic district, in a manner to be reviewed and
approved by staff.
C. All roof -top fixtures, air - conditioning units and mechanical devices shall be
clearly noted on a revised roof plan and elevation drawings and shall be
screened from view, in a manner to be reviewed and approved by staff.
d. Details of the ventilation system required for the parking and drive -way levels
shall be provided. Any mechanical ventilation that may be required shall be
chased vertically through the subject structure up to roof, in a manner to be
reviewed and approved by staff. The location of any required mechanical and
ventilation fixtures and devices for the parking level shall be clearly delineated on
the floor plans and site plans at the time of Building Permit review, in a manner to
be reviewed and approved by staff.
e. Any security fencing or gates shall not be located within the required front yard
and shall be setback behind the face of the front building.
f. Adequate trash room space shall be provided, in a manner to be approved by
the Planning and Public Works Departments. All trash containers shall utilize
rubber wheels, or the path for the trash containers shall consist of a surface
finish that reduces noise.
g. Manufacturers drawings and Dade County product approval numbers forall new
windows, doors and glass shall be required, prior to the issuance of a building
permit.
h. Prior to the issuance of a Certificate of Occupancy, the project Architect shall
verify, in writing, that the subject project has been constructed in accordance with
the plans approved by the Planning Department for Building Permit.
2. A revised landscape plan, prepared by a Professional Landscape Architect, registered in
the State of Florida, and corresponding site plan, shall be submitted to and approved by
staff. The species type, quantity, dimensions, spacing, location and overall height of all
plant material shall be clearly delineated and subject to the review and approval of staff.
At a minimum, such plan shall incorporate the following:
Page 8 of 10
HPB File No. 7346
Meeting Date: January 15, 2013
a. All existing overhead utilities shall be placed underground; in the event FPL
requires the undergrounding of the utilities of the adjacent properties, this
condition may be waived.
b. If feasible, and not in conflict with underground utilities, street trees with the
City's standard bound aggregate system with fertilization trench, irrigation and up
lighting shall be incorporated into the City right of way along Ocean Drive, in a
manner to be reviewed and approved by staff.
C. Hedge material of any kind shall not be permitted within the front area of the
property.
d. All exterior walkways and driveways shall consist of decorative pavers, set in
sand or otherequally semi- pervious material, subject to the review and approval
of staff.
e. All landscape areas abutting driveways and parking areas shall be defined by
decorative bollards.
f. A fully automatic irrigation system with 100% coverage and an automatic rain
sensor in order to render the system inoperative in the event of rain. Right -of-
way areas shall also be incorporated as part of the irrigation system.
g. The utilization of root barriers and /or structural soil, as applicable, shall be clearly
delineated on the revised landscape plan.
h. The applicant shall verify, prior to the issuance of a Building Permit, the exact
location of all backflow prevention devices. Backflow prevention devices shall
not be permitted within any required yard or any area fronting a street or
sidewalk, unless otherwise permitted by the Land Development Regulations.
The location of all backflow prevention devices, and howtheyare screened from
the right -of -way, shall be clearly indicated on the site and landscape plans and
shall be subject to the review and approval of staff. The fire department
shall require a post- indicator valve (PIV) visible and accessible from the street.
i. The applicant shall verify, prior to the issuance of a Building Permit, the exact
location of all post - indicator valves (PIV), fire department connections (FDC) and
all other related devices and fixtures, which shall be clearly indicated on the site
and landscape plans, and shall be subject to the review and approval of staff.
j. The applicant shall verify, prior to the issuance of a Building Permit, the exact
location of all applicable FPL transformers or vault rooms; such transformers and
vault rooms, and all other related devices and fixtures, shall not be permitted
within any required yard or any area fronting a street or sidewalk. The location of
any exterior transformers, and how they are screened with landscape material
from the right -of -way, shall be clearly indicated on the site and landscape plans
and shall be subject to the review and approval of staff.
Page 9 of 10
HPB File No. 7346
Meeting Date: January 15, 2013
k. Prior to the issuance of a Certificate of Occupancy, the Landscape Architect for
the project architect shall verify, in writing, that the project is consistent with the
site and landscape plans approved by the Planning Department for Building
Permit.
3. All building signage shall be consistent in type, composed of flush mounted, non - plastic,
individual letters and shall require a separate permit.
4. The final exterior surface color scheme, including color samples, shall be subject to the
review and approval of staff and shall require a separate permit.
5. A traffic mitigation plan, which addresses all roadway Level of Service (LOS) deficiencies
relative to the concurrency requirements of the City Code, if required, shall be submitted
prior to the issuance of a Building Permit and the final building plans shall meet all other
requirements of the Land Development Regulations of the City Code.
6. All new and altered elements, spaces and areas shall meet the requirements of the
Florida Accessibility Code (FAC).
7. The project shall comply with any landscaping or other sidewalk/street improvement
standards as may be prescribed by a relevant Urban Design Master Plan approved prior
to the completion of the project and the issuance of a Certificate of Occupancy.
8. The applicant may be required to submit a separate analysis for water and sewer
requirements, at the discretion of the Public Works Director, or designee. Based on a
preliminary review of the proposed project, the following may be required by the Public
Works Department:
a. A traffic and neighborhood impact study shall be conducted as a means to
measure a proposed development's impact on transportation and
neighborhoods. The study shall address all roadway Level of Service (LOS)
deficiencies relative to the concurrency requirements of the City Code, and if
required, shall be submitted prior to the issuance of a Building Permit. The final
building plans shall meet all other requirements of the Land Development
Regulations of the City Code. The developer shall refer to the most recent City of
Miami Beach's Traffic and Neighborhood Impact Methodology as issued by the
Public Works Department.
b. Remove /replace sidewalks, curbs and gutters on all street frontages, if
applicable. Unless otherwise specified, the standard color for city sidewalks is
red, and the standard curb and gutter color is gray.
C. Mill /resurface asphalt in rear alley along property, if applicable.
d. Provide underground utility service connections and on -site transformer location,
if necessary.
e. Provide back -flow prevention devices on all water services.
Page 10 of 10
HPB File No. 7346
Meeting Date: January 15, 2013
f. Provide on -site, self- contained storm water drainage for the proposed
development.
g. Meet water /sewer concurrency requirements including a hydraulic water model
analysis and gravity sewer system capacity analysis as determined by the
Department and the required upgrades to water and sewer mains servicing this
project.
h. Payment of City utility impact fees for water meters /services.
i. Provide flood barrier ramps to underground parking or minimum slab elevation to
be at highest adjacent crown road elevation plus 8 ".
j. Right -of -way permit must be obtained from Public Works.
k. All right -of -way encroachments must be removed.
I. All planting /landscaping in the public right -of -way must be approved by the Public
Works and Parks Departments.
9. At the time of completion of the project, only a Final Certificate of Occupancy (CO) or
Final Certificate of Completion (CC) may be applied for; the staging and scheduling of
the construction on site shall take this into account. All work on site must be completed
in accordance with the plans approved herein, as well as any modifications approved or
required by the Building, Fire, Planning, CIP and Public Works Departments, inclusive of
all conditions imposed herein, and by other Development Review Boards, and any
modifications required pursuant to field inspections, prior to the issuance of a CO or CC.
This shall not prohibit the issuance of a Partial or Temporary CO, or a Partial or
Temporary CC.
10. The Final Order shall be recorded in the Public Records of Miami -Dade County, Drior
the issuance of a Building Permit.
11. The Final Order is not severable, and if any provision or condition hereof is held void or
unconstitutional in a final decision by a court of competent jurisdiction, the order shall be
returned to the Board for reconsideration as to whether the order meets the criteria for
approval absent the stricken provision or condition, and /or it is appropriate to modify the
remaining conditions or impose new conditions.
12. The conditions of approval herein are binding on the applicant, the property's owners,
operators, and all successors in interest and assigns.
13. Nothing in this order authorizes a violation of the City Code or other applicable law, nor
allows a relaxation of any requirement or standard set forth in the City Code.
RGL: W HC:DJT
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MODIFICATION TO SETTLEMENT AGREEMENT
THIS MODIFICATION TO SETTLEMENT AGREEMENT (the "Modification ")
is made and entered into as of the day of February 2013, by and among: (1) the City
of Miami Beach, a Florida municipal corporation (the "City ") and (2) 120 Ocean Drive,
LLC, a Florida limited liability company ( "Ocean").
Introduction and Background
A. The Lawsuits and Claims Lawsuits and claims by Micky Biss, individually,
and USA Express, Inc., a Florida corporation, were settled pursuant to a Settlement
Agreement dated July 26, 2006 (the "Settlement Agreement ") between The Congress
Group, Inc., a Massachusetts domestic profit corporation, Ocean Drive, CFI, LLC, a
Delaware Limited Liability Company (collectively the "Congress Group ") and the City.
B. The Land and the Proiect The Settlement Agreement relates to (i) those
parcels of land (the "Land ") located at 120 - 130 Ocean Drive within the City, as particularly
described in Exhibit "A" attached hereto and incorporated herein by reference, and (ii) a
residential project with associated parking and retail/restaurant use (the "Project ") approved to
be constructed on the Land under Building Permit No. B- 9900085 (modified to B- 0001810,
B- 0101591, and then B0702576) (the " Master Permit ").
C. Successor and Intentions. Ocean is the successor in interest to the Congress
Group, having purchased fee simple title to the Land on October 9, 2012. Ocean is the
developer of the Project, as modified as proposed herein. Ocean represents that this
Modification is not inconsistent with any mortgage(s), assignment(s) of rents, or other
security interest encumbering the Land.
D. Ocean shall process a revision to the Master Permit in accordance with plans
prepared by the architectural firms of Bermello, Ajamil &. Partners, Inc. and Rene Gonzalez
Architect, Inc. (the "Revised Final Schematic Design "). "), The Revised Final Schematic
Design has been reviewed by the City's Planning Director, approved by the City's Historic
Preservation Board (HPB) on January 15, 2013 file no. 7346 (the staff report to the HPB is
attached hereto as Exhibit "B, " and incorporated herein by reference).Following approval of this
Modification, the Planning Board (PB) will consider for approval Owner's application for a
conditional use permit for mechanical parking.
E. The Development The Project was designed as a building that was 204' in
height, excluding mechanical structures, with a five -story parking pedestal. The Revised Final
Schematic Design proposes to modify the Proj ect by reducing heights of the building's tower and
pedestal, decreasing the density of the development program, and by incorporating
elevations and landscaping that are intended to be harmonious with the surroundings. The
resulting building is approximately ten feet (10') lower in height, excluding mechanical
structures, than the Project, has a two -story mechanical parking garage, ten (10) residential
units (reduced from thirty -five (3 5) units in the Project as originally approved), pool deck,
one commercial space, which is approximately 700 square feet and one meeting room (the
"Development "). The Revised Final Schematic Design and Development are completely
within the scope of the Project and do not divest Ocean's vested rights in the Land and the
Permit. Therefore, the Development shall retain the approval status contemplated in the
Settlement Agreement.
NOW, THEREFORE, the City and Ocean, the successor in title to the Land and the
vested rights in the Land and the Master Permit, in consideration of the mutual promises and
covenants of the parties made herein, and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, agree to modify the Settlement
Agreement as follows:
1. Recitations The foregoing recitations are true and correct and are
incorporated herein by this reference.
2. Development Approvals
(a) Conditions to Obligation The obligations of Ocean under this
Modification are specifically conditioned upon the City and/or its departments acting in their
independent, quasi-judicial, administrative, and/or legislative governmental capacity, as
applicable, to consider and formally approve the Revised Final Schematic Design, by
modifying the Master Permit to allow construction of the modified Project in accordance
with building permit plans that are substantially in accordance with the Revised Final
Schematic Design.
(b) Applications for Development Approvals Ocean has applied for
development approvals from the City's HPB and PB (the "Development Approvals ").
The application to the HPB sought and obtained approval of the Revised Final Schematic
Design, and the application to the PB seeks approval of the mechanical parking proposed
in the Revised Final Schematic Design. The parties shall cooperate with each other in
continuing to timely submit all required documentation and to process all necessary
Development Approvals from the City. The Development Approvals shall be deemed
approved at such time as each such approval becomes final and nonappealable.
(c) Revised Permit (i) After obtaining the Development Approvals,
Ocean will submit revised building permit plans in order to revise the Master Permit (the
"Revised Master Permit "). The Revised Master Permit shall be deemed approved when the
Revised Master Permit becomes final and nonappealable. The Revised Master Permit
shall be a revised or new building permit, which shall require either a revised or new
building permit application, at the sole discretion of the City's Building Official. Ocean
agrees to pay such fees as the Building Official determines are appropriate to the review
of the application for the Revised Master Permit.
(ii) On or before the date that is six (6)
months from the full execution of this Modification and the approval thereof by the City
Commission, Ocean shall submit plans required for the City to issue the Revised Master
Permit consistent with the Revised Final Schematic Design. This date may be extended
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by the City Manager for good cause shown. After the submission of such plans, the City
may issue or deny the Revised Master Permit, or provide written comments concerning the
plans, in the normal course of business. The review by the City's Building Department of
the plans to be submitted by Ocean to the City shall be pursuant to the Florida Building Code
and the Florida Fire Prevention Code, including all technical codes incorporated therein,
and all other applicable laws, regulations and codes.
(d) Vested Rights. The parties agree that (i) the Project continues to be
grandfathered and vested, both as to design and use, as of the zoning in place at the time that
Biss submitted their completed application in 1993 and received Design Review Board
approval; (ii) the Revised Final Schematic Design, as approved by the II PB, is substantially within the
scope of the Master Permit and Ocean may obtain a Revised Master Permit (as determined by the Building
Official) to construct the Development pursuant to the Revised Final Schematic Design, and (iii)
Development Approvals of the Revised Final Schematic Design, and approval of the Revised Master
Permit, will not divest Ocean's vested rights in the Master Permit, which permit remains grandfathered.
(e) Exercise of City Discretion The parties recognize and agree that
certain provisions of this Modification will require the City and/or its boards, department or
agencies, acting in their governmental capacity, to consider certain governmental actions as
set forth in this Modification. 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 its police
power, as well as the requirements of this Modification. Nothing in this Modification is
intended to limit or restrict the powers and responsibilities of the City in acting on
applications for any of the Development Approvals by virtue of the fact that the City may
have consented to the filing of such applications or by virtue of the City's entering into this
Modification. The parties recognize that the City, and its boards and departments, retain
sole discretion under their police powers as to whether to grant or deny the applications for
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.
3. Miscellaneous Provisions
(a) No Permit This Modification is not and shall not be construed as
a development permit, development approval, development order or authorization to
commence development, nor shall it relieve Ocean of the obligations to obtain any additional
or other development approvals that are required under applicable law and under and
pursuant to the terms of this Modification.
(b) Further Assurances It is the intent and agreement of the parties
that they shall cooperate with each other to effectuate the purposes and intent of, and to
satisfy their obligations under, this Modification in order to secure to themselves the mutual
benefits created under this Modification; and, in that regard, the parties shall execute such
further documents as may be reasonably necessary to effectuate the provisions of this
Modification. The parties agree to cooperate with each other so that Ocean may construct the
Page 3
building reflected in the Revised Final Schematic Design.
(c) Omissions The parties hereto recognize and agree that the failure of
this Modification to address a particular permit, condition, term, or restriction shall not
relieve Ocean of the necessity of complying with the law governing such permitting
requirements, conditions, terms, or restrictions notwithstanding any such omission.
(d) Notices Any notices required or permitted to be given under this
Modification shall be in writing and shall be deemed to have been given if delivered by hand,
sent by recognized overnight courier (such as Federal Express), or mailed by certified or
registered mail, return receipt requested, in a postage prepaid envelope, and addressed as
follows:
If to the City at: City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
Attn: City Manager
With a copy to: City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
Attn.: City Attorney
If to Ocean: 120 Ocean Drive, LLC
2675 South Bayshore Drive
Coconut Grove, FL 33133
Attn.: David Martin
With a copy to: Bercow Radell & Fernandez, P.A.
200 S. Biscayne Boulevard, Suite 850
Miami, Florida 33131
Attn.: Michael W. Larkin, Esquire
Notices personally delivered or sent by overnight courier shall be deemed given on the
business date of delivery and notices mailed in accordance with the foregoing shall be deemed
given three (3) days after deposit in the U.S. Mail.
4. Construction
(a) This Modification shall be construed and governed in accordance
with the laws of the State of Florida. All of the parties to this Modification have participated
fully in the negotiation and preparation hereof and, accordingly this Modification shall not
be more strictly construed against any one of the parties hereto.
(b) In construing this Modification, the use of any gender shall include
Page 4
every other and all genders, and captions and section and paragraph headings shall be
disregarded.
(c) All of the exhibits attached to this Modification are incorporated in,
and made a part of, this Modification.
5. Time of Essence Time shall be of the essence for each and every
provision hereof.
6. Entire Agreement This Modification, together with the documents
referenced herein, constitute the entire agreement and understanding among the parties
with respect to the subject matter hereof, and there are no other agreements,
representations or warranties other than as set forth herein. This Modification may not be
changed, altered or modified except by an instrument in writing signed by the party against
whom enforcement of such change would be sought.
7. Successors and Assigns; Third Party Beneficiaries The benefits, rights,
duties and obligations given to the parties under this Modification shall inure to the benefit of
and bind their successors in title and assigns. The parties acknowledge and agree that except
only for the foregoing successors and assigns, there are no third party beneficiaries under this
Modification or the Exhibits attached hereto.
8. Binding Agreement The parties hereto understand and agree that this
Modification will not be binding on the parties to this Modification until such time as the
City Commission of the City of Miami Beach has approved same, and the Modification is
fully executed by the parties to the Modification.
9. Authority to Sign Each of the signatories hereto represents that he or she
has authority to execute this Modification and to bind the party on whose behalf he or she
has signed.
10. Attorney's Fees and Costs The parties shall each bear all of their
respective attorney's fees and costs in connection with this Modification.
11. Remedies and Reservation of Rights The parties acknowledge that (i) the
City's Building Department and its employees are not a party to this Modification; and (ii)
Ocean fully reserves all of its rights and remedies in connection with any decision or action
of the City's Building Department concerning the Project, including, but not limited to, the
issuance of the Revised Master Permit. Prior to initiating any litigation under this
Modification, or under any of the Exhibits attached hereto, the party or parties desiring to
initiate litigation will provide written notice to the other party or parties and shall be
available for a period of 30 days after such written notice to attempt to meet and mediate the
dispute prior to initiating litigation.
ZD
12. Sovereign Immunity Nothing in this Modification or in the Exhibits
attached hereto shall be deemed to be a waiver by the City of its rights and privileges
Page 5
under Florida Statutes Section 768.28 or Florida Statutes Section 70.001(13).
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:
CITY OF NIIAMI BEACH, FLORIDA
a municipal corporation
Attest: By:
CITY CLERK MAYOR
120 OCEAN DRIVE, LLC, a Florida
limited liability company,
By:
Signature
Print Name
Title
Approved As To Fo And Language
d For Executio .
� Y ATT Y
Date: 2 13
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