2018-30286 ResolutionRESOLUTION NO. 2018 -30286
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF
THE CITY OF MIAMI BEACH, FLORIDA, RELATING TO THE
APPEAL (DRB APPEAL FILE NO. 2017 -002) OF A DESIGN
REVIEW APPROVAL ASSOCIATED WITH DESIGN REVIEW
BOARD FILE NO. 0416 -0015, FOR THE SOUTH - FACING
NONCOMMERCIAL ELECTRONIC GRAPHIC PROPOSED TO
BE INSTALLED AT 1600 -1634 ALTON ROAD/1212 LINCOLN
ROAD; AND APPROVING THE SETTLEMENT AGREEMENT,
ATTACHED HERETO AS EXHIBIT "A," BETWEEN THE CITY
OF MIAMI BEACH, AND RESPONDENTS ARRP MIAMI, LLC,
1212 LINCOLN, LLC, AND WELLS FARGO BANK
(HEREINAFTER, COLLECTIVELY, THE "RESPONDENTS ").
WHEREAS, the City Manager of the City of Miami Beach filed an appeal, (DRB Appeal
File No.: 2017 -002), to the City Commission, of a Design Review Board ( "DRB ") order, pursuant
to City Code Section 118- 9(c)(2)(B); and
WHEREAS, the underlying DRB Application, under DRB File No. 0416 -0015, was filed
by ARRP Miami, LLC, 1212 Lincoln, LLC, and Wells Fargo Bank (hereinafter, collectively, the
"Respondents ") for design review approval which, in pertinent part, included the installation of
artistic non - commercial electronic graphics on the north and south elevations of a proposed new
five -story commercial building with accessory parking and a hotel component, located at 1212
Lincoln Road (the "Application"); and
WHEREAS, at that quasi - judicial public hearing, the DRB approved two artistic non-
commercial electronic graphics: one facing south, at a proposed size of approximately 90' 2"
wide and 37' 2" high, for a total area of approximately 3,380 square feet (the "South Wall
Graphic "); and one facing north, at a proposed size of 24' 5" wide and 43' 8" high, for a total
area of approximately 1,063 square feet (the "North Wall Graphic ") (See DRB Order, attached
hereto and incorporated herein as Exhibit "A "); and
WHEREAS, the City Manager sought appellate review by the City Commission of only
the South Wall Graphic, which is proposed to be installed on the exterior of the proposed
project, facing 16th Street, at a size of approximately 3,380 square feet; and
WHEREAS, the City Manager did not appeal the DRB decision as to the North Wall
Graphic, as that graphic is proposed to be installed in the interior of the project, and as it would
be predominantly exposed to an internal courtyard away from the public right -of -way; and
WHEREAS, the City Manager sought appellate review as to the South Wall Graphic on
the basis that the DRB's decision was not supported by competent substantial evidence,
particularly with regard to the size and brightness of the proposed South Wall Graphic; and
WHEREAS, in order to avoid costly litigation and delays, and to minimize the impacts of
the proposed South Wall Graphic on the surrounding neighborhood, the City Manager and
representatives of the Respondents met and negotiated the Settlement Agreement attached
hereto as Exhibit "B" ( "Agreement "); and
WHEREAS, pursuant to the Agreement, the parties would settle and compromise all
claims of any kind or nature (including any claims for attorney's fees and costs), relating to,
arising out of, and /or in connection with the City Manager's appeal of the DRB's approval of the
South Wall Graphic, set forth in DRB Order, dated October 3, 2017, for DRB File No. 0416-
0015, for the property located at 1600 -1634 Alton Road /1212 Lincoln Road. The parties would
execute releases and agree to be bound by all other terms of the Agreement; and
WHEREAS, the City Manager recommends the City Commission approve the
Agreement.
NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND THE CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that, with regard to the appeal
(DRB Appeal File No. 2017 -002) of a design review approval associated with Design Review
Board File No. 0416 - 0015, for the south- facing noncommercial electronic graphic proposed to
be installed at 1600 -1634 Alton Road /1212 Lincoln Road, the Mayor and City Commission
hereby approve the attached Settlement Agreement between the City of Miami Beach, and
Respondents ARRP Miami, LLC, 1212 Lincoln, LLC, and Wells Fargo Bank.
PASSED and ADOPTED this /1 day of April, 2018.
ATTEST:
Rafael Granado, Cit Cler
CORP ; '(RATED
2
Daniel elber, Mayor
APPROVED AS TO
FORM & LANG
IJRE
& FOR EXEC
MIAM
BEACH
New Busness and Commission Requests - R9 H
COMMISSION MEMORANDUM
TO: Honorable Mayor and Members of the City Commission
FROM: JhnmyL. Morales, City Manager
DATE: April 11, 2018
SUBJECT: DISCUSSION REGARDING A POTENTIAL SETTLEMENT AGREEMENT IN
APPEAL FILED BY THE CTY MANAGER JIMMY L. MORALES OF A MIAMI BEACH
DESIGN REVIEW BOARD (DRB) ORDERAPPROVING THE CONSTRUCTION OF
APPROXIMATELY A 3,380 SQUARE FOOT NONCOMMERCIAL ELECTRONIC
GRAPHIC AT 1600-1634 ALTON ROAD/1212 LINCOLN ROAD (DESIGN REVIEW
BOARD FILE NO. 2017'002; LOWER TRIBUNAL FILE NO: DRB FILE NO. 410'
0015).
RECOMMENDATION
Please see Memorandum attached,
Legislative Tracking
Office of the City Attorney/Planning
ATTACHMENTS:
Description
o Memorandum
CI Resolution
m
Exhibit A' DRB Order
m
Exhibit B - Settlement Agreement
�
Settlement Agreement Drawings
1459
MIAM BEACH
City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33139,
www.miamibeachfl,gov
COMMISSION MEMORANDUM
TO: Mayor Dan Gelber and Members of the City Commission
FROM: Jimmy Morales, City Manager
DATE: April 11, 2018
SUBJECT: A discussion relating to the possible settlement of an
appeal filed by the City Manager Jimmy Morales of a Miami
Beach Design Review Board (DRB) order approving the
construction of an approximately 3,330 square foot
noncommercial electronic graphic at 1600 -1634 Alton
Road /1212 Lincoln Road (Design Review Board File No.
2017-002; Lower Tribunal File No: DRB File No. 416 - 0015).
Background:
On October 3, 2017, the Design Review Board (DRB) approved, amongst other things, a
noncommercial electronic graphic for 1600 -1634 Alton Road /1212 Lincoln Road
(Respondents). The DRB approved a design, micro hotel units via a variance request,
and two noncommercial electronic graphics. The only portion of the order that is the
subject of the appeal is the noncommercial electronic graphic facing 16 Street, which
graphic consist of 3,380 square feet.
Issue:
The parties are seeking the City Commission to discuss and approve a possible
settlement. Should settlement not be reached the parties seek to present the appeal
immediately after the decision not to settle, during the April 11, 2018 hearing.
Proposed Settlement:
The illuminated graphic would depict/project digitalized photos of the existing murals for
the Wells Fargo structure located at 1634 Alton Road. The existing mosaic mural on the
front of the building is 1,005 square feet.
As the existing mosaic mural is 1,005 square feet, the City Manager is willing to entertain
a settlement of the appeal — by recommending to the City Commission a reduction of the
proposed 3,380 square foot noncommercial electronic graphic to 1,005 square feet.
1460
Discussion Item as to DRB Appeal /Settlement Agreement
April 11, 2018
Page 2 of 2
Under the settlement, the Respondents, for a continuous period of at least ten (10) years
following the issuance of a certificate of occupancy or certificate of completion for the
modified South Wall Graphic proposed herein, shall not seek to increase the size of the
modified graphic from the agreed -upon size of 1,005 square foot. All other terms and
conditions of the underlying DRB order would remain in full force and effect. Any
changes to the mural depictions require returning to the Design Review Board. Each
party would hold the other harmless. Each party would be responsible for his or her
attorney's fees and costs. All appeals and actions derived from the underlying matter
would be dismissed.
Recommendation:
Authorize the proposed settlement.
1461
DESIGN REVIEW BOARD
City of Miami Beach, Florida
MEETING DATE: October 03, 2017
FILE NO: DRB0416 -0015
PROPERTY: 1600 -1634 Alton Road "1212 Lincoln Road"
APPLICANTS: ARRP Miami LLC, 1212 Lincoln LLC, and Wells Fargo Bank
LEGAL: Lots 1 thru 9 of Block 45 of the "Commercial Subdivision ", According to
the Plat Thereof, as Recorded in Plat Book 6, Page 5, of the Public
Records of Miami -Dade County, Florida.
IN RE:
The Application for Design Review Approval for the installation of an
artistic super graphic on the north and east elevations for a new five -story
commercial building with accessory parking and a hotel component with
variances. Specifically, the applicants are requesting Design Review
Approval for a previously requested artistic super graphic on the north
and east elevations of the building. Additionally, the applicants are
requesting a new variance to reduce the minimum hotel unit size.
SUPPLEMENTAL ORDER
The City of Miami Beach Design Review Board makes the following FINDINGS OF FACT,
based upon the evidence, information, testimony and materials presented at the public hearing
and which are part of the record for this matter:
I. Design Review
A. The Board has jurisdiction pursuant to Section 118- 252(a) of the Miami Beach Code.
The property is not located within a designated local historic district and is not an
individually designated historic site,
B. Based on the plans and documents submitted with the application, testimony and
information provided by the applicant, and the reasons set forth in the Planning
Department Staff Report, the project as submitted is inconsistent with Design Review
Criteria 9 in Section 118 -251 of the Miami Beach Code.
C. Based on the plans and documents submitted with the application, testimony and
information provided by the applicant, and the reasons set forth in the Planning
Department Staff Report, the project as submitted is inconsistent with Sea Level Rise
Criteria 1, and 10 in Section 133 -50(a) of the Miami Beach Code.
D. The project would be consistent with the criteria and requirements of Section 118-
251 and/ or Section 133 -50(a) if the following conditions are met:
1. The project shall comply with all the conditions imposed by the Planning Board
Order No. 2325.
1464
Page 2 of 7
DRB0416- 0015 - 1600 -1634 Alton Road "1212 Lincoln Road"
October 03, 2017
2. All of the original conditions of approval by this Board, as reflected in the Final
Order dated July 05, 2016, pursuant to DRB0416 -0015, and February 06, 2017
pursuant DRB16 -0090, shall remain in effect except as modified and approved
herein.
3. The project may take place as a phased development project in accordance with
the following phasing schedule:
a. Phase I (lots 1 and 2 and lots 3 through 7 of Block 45) shall consist of all
proposed development south of the surface lot of Wells Fargo Bank, except
that it will exclude the first story of the existing buildings on lots 1 and 2 (1600
Alton Road site), and as defined as depicted on the submitted plans. A
building permit for the Phase I improvements shall issue within eighteen (18)
months of the Board's original approval; and
Phase II (lots 8 and 9 of Block 45) shall consist of all proposed development
north of lot 7 of Block 45, and as defined as depicted on the submitted plans.
Phase II will include the demolition of the Wells Fargo bank and construction
of the new corner retail and hotel building. A building permit for the Phase II
improvements shall issue within twelve (12) months following the issuance of
the final certificate of occupancy for the Phase I improvements.
b. The final certificate of occupancy for Phase I shall not be issued until the
existing structure on lot 9 has been demolished and construction of Phase II
has commenced.
4. Revised elevation, site plan and image drawings for the proposed digital display
artistic super graphics along locations along portions of the north and east side
elevations shall be submitted to and approved by staff; at a minimum, such
drawings shall incorporate the following:
a. All electronic graphics and images super graphics shall comply with the Miami
Dade County signage code, Section 33 -96(c) Digital Signs.
b, The proposed inventory in its entirety of the imagery shall not be approved as
proposed. The only electronic graphics and images approved shall be the Enzo
Gallo mural designs, which are conceived as high quality photographs of the
six tile murals representing aspects of American history that will alternate
throughout the LED panels,
The proposed digital LED screens shall not be approved as proposed. The
architect shall incorporate "Option 3" for the Sansi SNideo technology that
blends moving imagery and graphics to architecture in a more refined and
advanced method, as presented in the supplemental exhibit distributed at the
October 03, 2017 DRB meeting.
d. The electronic graphics and images shall be approved as proposed.
e. The moving electronic graphics and images shall be approved as proposed.
1465
Page 3of7
DRB0416- 0015 - 1600 -1634 Alton Road "1212 Lincoln Road"
October 03, 2017
f. The size of the two electronic mural, graphics and images shall be approved
as proposed.
g. OPERATIONAL CONDITIONS
i. The Noise and Operational Conditions below are issued to the Applicants
ARRP Miami LLC, 1212 Lincoln LLC, and Wells Fargo Bank ( "Operator ") as
tenant and operator of the proposed LED panel screens and digital display
equipments on the property. Any change of the operator shall require
review and approval by the Design Review Board as a modification of this
approval. Subsequent operators shall be required to appear before the
Board, within ninety (90) days of change of operator to affirm their
understanding of the conditions listed herein. The Board reserves the right
to determine the timing and need for future progress reports for the new
operator.
ii. Within ninety (60) days of the issuance of the TCO or CO for the project, the
Operator shall make a progress report to the Design Review Board. The
Board reserves the right to modify the conditions of this approval at the time
of a progress report in a non- substantive manner, to impose additional
conditions to address possible problems and to determine the timing and
need for future progress reports.
iii. The images on the LED panels murals, graphics or images shall be reduced
in illumination to a maximum of 250nits from Midnight— 7:00 a.m.
iv. The proposed 24 hour program for the electronic murals, graphics and
images shall not be permitted as proposed. The hours of operation for the
digital display imagery to change shall be as follows:
Sunday — Thursday:
7:00 a.m. Midnight
Friday - Saturday:
7:00 a.m. — 2:00 a.m.
5. Revised elevation, site plan and image drawings for the proposed hotel building
located at 1600-1634 Alton Road "1212 Lincoln Road" shall be submitted to and
approved by staff; at a minimum, such drawings shall incorporate the following:
a. A copy of all pages of the recorded Final Order shall be scanned into the plans
submitted for building permit, and shall be located immediately after the front
cover page of the permit plans.
b. 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.
In accordance with Section 118 -262, the applicant, or the city manager on behalf of the
City Administration, or an affect 2d person, Miami Design Preservation League or Dade
Heritage Trust may seek reviewof any order of the Design Review Board by the City
Commission, except that orders granting or denying a request for rehearing shall not be
1466
reviewed by the Commission.
11. Variance(s)
Page 4 of 7
DRB0416 -0015- 1600 -1634 Alton Road "1212 Lincoln Road"
October 03, 2017
A. The applicants filed an application with the Planning Department for the following
variance(s):
1. A variance from the minimum required hotel unit size: 15% of the hotel units
shall be between 300 -335 SF and 85% of units shall be 335 SF or larger, in
order to permit 165 hotel units (98.2 %) at less than 300 SF (the smallest at 186
SF) and 3 units (1.8 %) at 421 SF.
B. The applicants have submitted plans and documents with the application that do
satisfy Article 1, Section 2 of the Related Special Acts, allowing the granting of a
variance if the Board finds that practical difficulties exist with respect to implementing
the proposed project at the subject property.
The applicants have submitted plans and documents with the application that also
indicate the following, as they relate to the requirements of Section 118- 353(d), Miami
Beach City Code:
That special conditions and circumstances exist which are peculiar to the land,
structure, or building involved and which are not applicable to other lands, structures,
or buildings in the same zoning district;
That the special conditions and circumstances do not result from the action of the
applicant;
That granting the variance requested will not confer on the applicant any special
privilege that is denied by this Ordinance to other lands, buildings, or structures in the
same zoning district;
That literal interpretation of the provisions of this Ordinance would deprive the
applicant of rights commonly enjoyed by other properties in the same zoning district
under the terms of this Ordinance and would work unnecessary and undue hardship
on the applicant;
That the variance granted is the minimum variance that will make possible the
reasonable use of the land, building or structure;
That the granting of the variance will be in harmony with the general intent and
purpose of this Ordinance and that such variance will not be injurious to the area
involved or otherwise detrimental to the public welfare; and
That the granting of this request is consistent with the comprehensive plan and does
not reduce the levels of service as set forth in the plan.
C. The Board hereby Approves the Variance request(s), and imposes the following
conditions based on its authority in Section 118 -354 of the Miami Beach City Code:
1467
Page 5 of 7
DRB0416- 0015- 1600 -1634 Alton Road "1212 Lincoln Road"
October 03, 2017
1. Substantial modifications to the plans submitted and approved as part of the
application, as determined by the Planning Director or designee, may require the
applicant to return to the Board for approval of the modified plans, even if the
modifications do not affect variances approved by the Board,
2. The hotel rooms' guest occupancy shall be limited to 2 guests per room.
The decision of the Board regarding variances shall be final and there shall be no further
review thereof except by resort to a court of competent jurisdiction by petition for writ of
certiorari.
111. General Terms and Conditions applying to both `I. Design Review Approval and 'll.
Variances' noted above.
A. A recycling plan shall be provided as part of the submittal for a demolition /building permit
to the building department, in a manner to be reviewed and approved by staff.
B. The applicant shall comply with the electric vehicle parking requirements, pursuant to
Sec. 130 -39 of the City Code.
C. All new construction over 7,000 square feet shall be required to be, at a minimum,
certified as LEED Gold by USGBC. In lieu of achieving LEED Gold certification,
properties can elect to pay a sustainability fee, pursuant to Chapter 133 of the City
Code. This fee istctos,a ,,percentage of the cost of construction.
D. Where one or more parcels are unified for a single development, the property owner
shall execute and record a unity of title or a covenant in lieu of unity of title, as may be
applicable, in a form acceptable to the City Attorney.
E. The applicants shall submit a Hold Harmless Covenant Running with the Land to the
City Attorney's Office in a form acceptable to the City Attorney indemnifying and holding
harmless the city against any claim or loss in the event of an accident involving a motor
vehicle or other instrumentality due to the brightness, flickering, intensity and /or overall
visual distraction of the new building's digital display equipments to the public right -of
way.
F. In the event Code Compliance receives complaints of unreasonably bright and Intense
light, bothersome Tight pollution, or distractions from pedestrians or motorists from the
digital display super graphics equipments, and determines the complaints to be valid,
even if the equipment is operating pursuant to manufacturer specifications, the applicant
shall take such steps to mitigate the noise with noise attenuating materials as reviewed
and verified by an acoustic engineer, subject to the review and approval of staff based
upon the design review or appropriateness criteria, and /or directions received from the
Board.
G. The final building plans shall meet all other requirements of the Land Development
Regulations of the City Code.
H. The Supplemental Final Order shall be recorded in the Public Records of Miami -Dade
County, prior to the issuance of a Building Permit,
1468
Page 6 of 7
DRB0416- 0015 -1600 -1634 Alton Road "1212 Lincoln Road"
October 03, 2017
I. Satisfaction of all conditions is required for the Planning Department to give its approval
on a Certificate of Occupancy; a Temporary Certificate of Occupancy or Partial
Certificate of Occupancy may also be conditionally granted Planning Departmental
approval.
J. The Supplemental 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.
K. The conditions of approval herein are binding on the applicant, the property's owners,
operators, and all successors in interest and assigns.
L. 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.
IT IS HEREBY ORDERED, based upon the foregoing findings of fact, the evidence, information
testimony and materials presented at the public hearing, which are part of the record for this
matter, and the staff report and analysis, which are adopted herein, including the staff
recommendations, which were amended and adopted by the Board, that the application is
GRANTED for the above - referenced project subject to those certain conditions specified in
Paragraph I, II, III of the Finding of Fact, to which the applicant has agreed.
PROVIDED, the applicant shall build substantially in accordance with the plans, entitled "1212
Lincoln Road ", as prepared by Perkins + Will, dated August 03, 2017, and the supplemental
exhibit distributed at the October 03, 2017 DRB meeting, and as approved by the Design
Review Board, as determined by staff.
When requesting a building permit, the plans submitted to the Building Department for permit
shall be consistent with the plans approved by the Board, modified in accordance with the
conditions of approval that must be satisfied prior to permit issuance, as set forth in this Order,
have been met.
The issuance of the approval does not relieve the applicant from obtaining all other required
Municipal, County and /or State reviews and permits, including final zoning approval. If adequate
handicapped access is not provided on the Board approved plans, this approval does not mean
that such handicapped access is not required. When requesting Building permit, the plans
submitted to the Building Department for permit shall be consistent with the plans approved by
the Board, modified in accordance with the conditions set forth in this Order.
If the Full Building Permit for the project is not issued within eighteen (18) months of the meeting
date at which the original approval was granted, the application will expire and become null and
void, unless the applicant makes an application to the Board for an extension of time, in
accordance with the requirements and procedures of Chapter 118 of the City Code, the granting
of any such extension of time shall be at the discretion of the Board. If the Full Building Permit
for the project shall expire for any reason (including but not limited to construction not
commencing and continuing, with required inspections, in accordance with the applicable
Building Code), the application will expire and become null and void.
In accordance with Chapter 118 of the City Code, the violation of any conditions and safeguards ‘,
1469
Page 7of7
DR8O410-0015--10OO-G34 Alton Road ^i212 Lincoln Road"
October O3'%017
that are a part of this Order shall be deemed a violation of the land development regulations of
the City Code, Failure to comply with this Order shall subject the application to Chapter 118 of
the City Code, for revocation or modification ofthe application.
Dated this 06,
STATE {)PFLORIDA )
COUNTY DFK8|AM|-UA�E '-- )
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DESIGN REVIEW BOARD
THE CITY OF MIAMI BEACH, FLORIDA
"JAMES
'' CHIEF OF URBAN DES!
FOR THE CHAIR
The foregoing instrument wa acknowledged before me this day of
0(4%26r 20 by James G. Murphy, Chief of Urban Design, Planning
Department, City of Miami Beach, Florida, a F mri unicipa| oration, on behalf of the
Corporation. He is personally known to /ne.
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1470
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SETTLEMENT AND RELEASE AGREEMENT BETWEEN
THE CITY OF MIAMI BEACH (PETITIONER) AND ARRP MIAMI, LLC,
1212 LINCOLN, LLC, AND WELLS FARGO BANK (RESPONDENTS)
This Settlement and Release Agreement (the "Agreement ") is made and entered into
this day of February, 2018, by and between the City of Miami Beach, Florida, a Florida
municipal corporation (hereinafter, the "City" or "Petitioner") and ARRP Miami, LLC, 1212
Lincoln, LLC, and Wells Fargo Bank (hereinafter, collectively, the "Respondents "). The City and
the Respondents may also be referred to individually as a "Party," and collectively as the
"Parties."
RECITALS
WHEREAS, on October 3, 2017, the Respondents presented to the City's Design
Review Board ( "DRB ") an application for design review approval which, in pertinent part,
included the installation of artistic non - commercial electronic graphic signs on the north and
south elevations of a proposed new five -story commercial building with accessory parking and a
hotel component, located at 1212 Lincoln Road (the "Application "); and
WHEREAS, at that quasi - judicial public hearing, the DRB approved two artistic non-
commercial electronic graphics: one facing south, at a proposed size of approximately 90' 2"
wide and 37' 2" high, for a total area of approximately 3,380, square feet (the "South Wall
Graphic "); and one facing north, at a proposed size of 24' 5" wide and 43' 8" high, for a total
area of approximately 1,063 square feet (the "North Wall Graphic ") (See DRB Order, attached
hereto and incorporated herein as Exhibit "A "); and
WHEREAS, the City Manager has sought appellate review by the City Commission of
the South Wall Graphic, which is proposed to be installed on the exterior of the proposed
project, facing 16th Street, at a size of approximately 3,380 square feet; and
WHEREAS, the City Manager did not appeal the DRB decision as to the North Wall
Graphic, as that graphic is proposed to be installed in the interior of the project, and as it would
be predominantly exposed to an internal courtyard away from the public right -of -way; and
WHEREAS, the City Manager sought appellate review as to the South Wall Graphic on
the basis that the DRB's decision was not supported by competent substantial evidence,
particularly with regard to the size and brightness of the proposed South Wall Graphic; and
WHEREAS, in order to avoid costly litigation and delays, and to minimize the impacts of
the proposed South Wall Graphic on the surrounding neighborhood, the City Manager and
representatives of the Respondents met and negotiated this Agreement.
NOW THEREFORE, in consideration for the exchange of promises contained herein,
and for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by the Parties, the Parties agree as follows:
1. Recitals: The above Recitals are true and correct and are incorporated herein.
1471
2. Settlement: The Parties hereby settle and compromise all claims of any kind or nature
(including any claims for attorney's fees and costs), relating to, arising out of and /or in
connection with the City Manager's appeal as to the South Wall Graphic in DRB Order,
dated October 3, 2017, for DRB File No. 0416 -0015, for the property located at 1212
Lincoln Road.
3. Settlement Terms: In consideration of the releases executed herein, the Parties agree
as follows:
(a) The Respondents agree to reduce the size of the South Wall Graphic from
approximately 3,380 square feet to a maximum of 1,005 square feet, consistent with the
concept plan attached hereto and incorporated herein as Exhibit "B ".
(b) After approval of this Agreement by the City Commission, the modified 1,005
square foot South Wall Graphic, which is proposed in Section 3(a) herein, shall be
remanded to the DRB for ratification and approval, following a public hearing held
pursuant to the City's land development regulations.
(c) For a continuous period of at least ten (10) years following the issuance of a
certificate of occupancy or certificate of completion for the modified South Wall Graphic
proposed herein, Respondents shall not seek to increase the size of the modified
graphic from the agreed -upon size of 1,005 square foot.
(d) The installation and operation of the North Wall Graphic and the South Wall
Graphic and the images projected thereon shall at all times comply with the Miami Dade
County sign code (including, without limitation, Chapter 33, Article VI of the Miami -Dade
County Code). In particular, the North Wall Graphic and South Wall Graphic shall at all
times comply with Miami -Dade County Code Section 33- 96(c), which governs digital
signs.
(e) The hours of operation shall be limited to Sundays through Thursdays from 7:00
a.m. to midnight, and Fridays through Saturdays from 7:00 a.m. to 2:00 a.m. The
number of "nits" shall be reduced by the Respondents to a maximum of 250 nits from
midnight to 7 :00 a.m.
(f) As no other portion of the October 3, 2017 DRB Order was appealed, all other
terms and conditions of the underlying DRB Order shall remain in full force and effect.
4. Releases: In further consideration of the execution of this Agreement, the Parties for
themselves and their respective parent companies, subsidiaries, affiliates, officers,
directors, shareholders, managers, members, partners, representatives, employees,
agents and attorneys, together each of their respective heirs, executors, administrators,
2
1472
personal representatives, successors and assigns (the "City Releasors" or "Respondent
Releasors," as the case may be), hereby execute the following Releases:
(a) Respondent Releasors' Release of City Releasors: Upon approval of this
Agreement by the City Commission and execution of this Agreement by the Parties,
Respondent Releasors hereby remise, release, acquit, satisfy and forever discharge the
City Releasors, which throughout this Agreement includes, the City and its parent
companies, subsidiaries, affiliates, officers, directors, shareholders, managers,
members, partners, representatives, employees, agents and attorneys, together each of
their respective heirs, executors, administrators, personal representatives, successors
and assigns, of and from any and all manner of past, present and future claims or
appeals, actions, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills,
specialties, covenants, contracts, controversies, agreements, promises, obligations,
damages, judgments, costs, expenses, causes of action, executions, claims, liabilities,
and demands whatsoever, in law or in equity, whether for compensatory, punitive, or
other damages (collectively referred to in this subsection as the "Claims "), which the
Respondent Releasors have held or now hold, ever had, now have, or which the
Respondent Releasors, hereinafter can, shall or may have against the City Releasors,
for any and all Claims, whether known or unknown, arising from, pertaining to and /or in
any way relating to the City Manager's appeal of the DRB Order as to the South Wall
Graphic.
(b) City Releasors' Release of Respondent Releasors: The City Releasors hereby
remise, release, acquit, satisfy and forever discharge the Respondent Releasors, which
throughout this Agreement includes, but is not limited to, the Respondent Releasors and
their respective parent companies, subsidiaries, affiliates, officers, directors,
shareholders, managers, members, partners, representatives, employees, agents and
attorneys, together each of their respective heirs, executors, administrators, personal
representatives, successors and assigns, of and from any and all manner of past,
present and future claims or appeals, actions, suits, debts, dues, sums of money,
accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies,
agreements, promises, obligations, damages, judgments, costs, expenses, causes of
action, executions, claims, liabilities, and demands whatsoever, in law or in equity,
whether for compensatory, punitive, or other damages (collectively referred to in this
subsection as the "Claims "), which the City Releasors have held or now hold, ever had,
now have, or which the City Releasors, hereinafter can, shall or may have against the
Respondent Releasors, for any and all Claims, whether known or unknown, arising from,
pertaining to and /or in any way relating to the City Manager's appeal of the DRB Order
as to the South Wall Graphic.
5. Binding Effect: The Parties understand and agree that this Agreement will not be
binding on the Parties to this Agreement until such time as (a) the City Commission of
the City of Miami Beach has approved this Agreement, (b) this Agreement is fully
executed by the Parties to this Agreement, and (c) the DRB ratifies the DRB Order in
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accordance with this Agreement and without imposing any further conditions or
requirements on any of the Parties. If any of the foregoing conditions are not satisfied,
then this Agreement shall be null and void and of no force and effect.
6. No Admission of Liability: It is understood and agreed that the claims which are the
subject of this Agreement are disputed claims and that the execution of this Agreement
by the Parties, and the exclusions set forth in this Agreement, are not intended to, and
shall not in any way, constitute or be deemed an express or implied admission or
acceptance of any negligence, misconduct, responsibility or liability by the Parties or an
admission against interest by the Parties, and that the Parties expressly and specifically
deny all such claims. Such consideration is being given to reduce the expense,
uncertainties and hazards of litigation and to mitigate damages to each of the Parties.
There shall not be any implication by any trier of fact or law of any admission or
acceptance of liability or admission against interest by the Parties and it shall not be
used against the City Releasors or the Respondent Releasors in any attempt to prove
any future liability claims.
7. Miscellaneous: The Parties further agree as follows:
(a) The Parties acknowledge and agree that this Agreement is fully and adequately
supported by consideration and is fair and reasonable, The Parties further acknowledge
and agree that: (i) each Party has had the opportunity to consult with, and has in fact
consulted with, such professionals, experts and legal counsel of its choice as such Party
may have desired with respect to all matters settled and resolved herein; (ii) each Party
has participated fully in the negotiation and preparation of this Agreement; (iii) each
Party has carefully reviewed this Agreement and is entering into same freely; and (iv)
this Agreement is entered into in good faith and was not obtained by fraud,
misrepresentation, or deceit. Accordingly, this Agreement shall not be more strictly
construed against any Party.
(b) Each of the signatories hereto represents that he or she has authority to execute
this Agreement and to bind the Party on whose behalf he or she has signed.
(c) This Agreement is being consummated in the State of Florida, and the
performance by the Parties hereto is in the State of Florida. This Agreement shall be
construed and governed in accordance with the laws of the State of Florida and the sole
and exclusive venue for any lawsuit relating to this Agreement is Miami -Dade County,
Florida. The Parties expressly agree to waive trial by jury in any action to enforce this
Agreement.
(d) In construing this Agreement, the singular shall be held to include the plural, the
plural shall be held to include the singular, the use of any gender shall be held to include
every other and all genders, and captions and paragraph headings shall be disregarded.
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(e) Any exhibits attached to this Agreement are incorporated in, and made a part of,
this Agreement.
(f)
Time is of the essence in the performance of this Agreement.
9. Entire Agreement: This Agreement, together with any documents referenced herein or
attached hereto, constitutes the full and entire agreement and understanding between
the Parties as related to the Project, and there are no agreements, representations or
warranties except as specifically set forth herein. This Agreement replaces any prior or
contemporaneous written or oral representation or understanding about the terms of this
Agreement. All prior discussions, negotiations, letters, demands and writings of any kind
are fully merged into this Agreement and are to be construed to be of no further force or
effect, it being the intention of the Parties that this Agreement shall serve as the sole and
entire expression of their agreement and understanding. This Agreement shall be
binding on, and shall inure to the benefit of, the respective successors and assigns, if
any, of each Party.
10. Modification; No Waiver: This Agreement may only be modified in writing signed by the
Parties. No waiver or modification of this Agreement or of any covenant, condition or
limitation contained herein, shall be valid unless in writing and signed by all Parties-to
this Agreement, or their authorized counsel. If the City or the Respondents excuses or
condones any breach or default by the other Party of any obligation under this
Agreement, this shall not be a waiver of such obligation with respect to any continuing
obligation or subsequent breach or default and no such waiver shall be implied.
11. Counterparts: This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together represent one instrument
binding on the Parties, notwithstanding that all of the Parties are not signatories to the
same counterpart. The Parties further agree that this Agreement may be signed and
submitted via facsimile or electronic mail.
12. Severability: If any provision of this Agreement is held or rendered illegal or
unenforceable, it shall be considered separate and severable from this Agreement and
the remaining provisions of this Agreement shall remain in full force and effect and bind
the Parties as though the illegal or unenforceable provision had never been included in
this Agreement.
13. Captions; References: The captions of this Agreement are for the purpose of
convenience of reference only and in no way define, limit or describe the scope or intent
of this Agreement or in any way affect the terms and conditions of this Agreement. All
references in this Agreement to the terms "herein," "hereunder," "hereof' and words of
similar import shall refer to this Agreement, as distinguished from the Paragraph, Section
and /or Subsection within which such term is located.
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14. Third Parties: Nothing express or implied in this Agreement is intended or should be
construed to confer upon or give any person or entity, other than the City and the
Respondents, any rights or remedies under, or by reason of, this Agreement.
15. Notices: All notices and communications in writing required or permitted hereunder, shall
be delivered personally to the representatives of the Parties listed below or may be
mailed by U.S. Certified Mail, return receipt requested, postage prepaid, or by a
nationally recognized overnight delivery service.
Until changed by notice, in writing, all such notices and communications shall be
addressed as follows:
For the City:
For Respondents:
Jimmy L. Morales
City Manager
City of Miami Beach, Florida
1700 Convention Center Dr., 4th Floor
Miami Beach, FL 33139
With a copy to:
Raul J. Aguila
City Attorney
City of Miami Beach, Florida
1700 Convention Center Dr., 4th Floor
Miami Beach, FL 33139
David B. Smith
President
ARRP Miami, LLC
2200 Biscayne Blvd.
Miami, FL 33137
David B. Smith
President
1212 Lincoln, LLC
2200 Biscayne Blvd.
Miami, FL 33137
Notice may also be provided to any other address designated by the Party to receive
notice if such alternate address is provided via U.S. certified mail, return receipt
requested, hand delivered, or by overnight delivery. In the event an alternate notice
address is properly provided, notice shall be sent to such alternate address in addition to
any other address which notice would otherwise be sent, unless other delivery
instruction as specifically provided for by the Party entitled to notice.
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Notice shall be deemed given on the date of an acknowledged receipt, or, in all other
cases, on the date of receipt or refusal.
THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.
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1477
IN WITNESS WHEREOF, the Parties have set their hands and seals on the day and date first
written above:
FOR CITY:
THE CITY OF MIAMI BEACH, FLORIDA, a
Florida municipal corporation
By:
Name:
Title:
STATE OF FLORIDA
COUNTY OF MIAMI -DADE_
The foregoing instrument was acknowledged before me this day of
2014, by , of CITY OF MIAMI BEACH, FLORIDA, a
political sub - division of the State of Florida, who is personally known to me or who has produced
(type of identification).
ATTEST:
City Clerk
Approved
Date
Planning Director Date
Approved as to form and language and for
execution
,L0 J--- 3[2.611g
City Attorney Date
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1478
Name:
(Print Name)
Notary Public — State of Florida
My Commission Expires:
FOR RESPONDENT:
ARRP MIAMI, LLC
By:
Print Name:
Title:
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
The foregoing instrument was acknowledged before me this day of
2018, by , Respondent ARRP
MIAMI, LLC, who is personally known to me or who has produced
(type of identification).
Name:
(Print Name)
Notary Public — State of Florida
My Commission Expires:
9
1479
FOR RESPONDENT:
1212 LINCOLN, LLC
By:
Print Name:
Title:
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
The foregoing instrument was acknowledged before me this day of , 2018, by
, Respondent 1212 LINCOLN
LLC, who is personally known to me or who has produced (type of
identification).
Name:
(Print Name)
Notary Public — State of Florida
My Commission Expires:
10
1480
FOR RESPONDENT:
WELLS FARGO BANK
By:
Print Name:
Title:
STATE OF FLORIDA
COUNTY OF MIAMI -DADE
The foregoing instrument was acknowledged before me this day of , 2018, by
Respondent WELLS FARGO
BANK, who is personally known to me or who has produced (type
of identification).
Name:
(Print Name)
Notary Public — State of Florida
My Commission Expires:
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SETTLEMENT AND RELEASE AGREEMENT BETWEEN
THE CITY OF MIAMI BEACH (PETITIONER) AND ARRP MIAMI, LLC,
1212 LINCOLN, LLC, AND WELLS FARGO BANK (RESPONDENTS)
This Settlement and Release Agreement (the "Agreement ") is made and entered into
this day of April, 2018, by and between the City of Miami Beach, Florida, a Florida
municipal corporation (hereinafter, the "City" or "Petitioner") and ARRP Miami, LLC, 1212
Lincoln, LLC, and Wells Fargo Bank (hereinafter, collectively, the "Respondents "). The City and
the Respondents may also be referred to individually as a "Party," and collectively as the
"Parties."
RECITALS
WHEREAS, on October 3, 2017, the Respondents presented to the City's Design
Review Board ( "DRB ") an application for design review approval which, in pertinent part,
included the installation of artistic non - commercial electronic graphic signs on the north and
south elevations of a proposed new five -story commercial building with accessory parking and a
hotel component, located at 1212 Lincoln Road (the "Application "); and
WHEREAS, at that quasi - judicial public hearing, the DRB approved two artistic non -
commercial electronic graphics: one facing south, at a proposed size of approximately 90' 2"
wide and 37' 2" high, for a total area of approximately 3,380 square feet (the "South Wall
Graphic "); and one facing north, at a proposed size of 24' 5" wide and 43' 8" high, for a total
area of approximately 1,063 square feet (the "North Wall Graphic ") (See DRB Order, attached
hereto and incorporated herein as Exhibit "A "); and
WHEREAS, the City Manager has sought appellate review by the City Commission of
the South Wall Graphic, which is proposed to be installed on the exterior of the proposed
project, facing 16th Street, at a size of approximately 3,380 square feet; and
WHEREAS, the City Manager did not appeal the DRB decision as to the North Wall
Graphic, as that graphic is proposed to be installed in the interior of the project, and as it would
be predominantly exposed to an internal courtyard away from the public right -of -way; and
WHEREAS, the City Manager sought appellate review as to the South Wall Graphic on
the basis that the DRB's decision was not supported by competent substantial evidence,
particularly with regard to the size and brightness of the proposed South Wall Graphic; and
WHEREAS, in order to avoid costly litigation and delays, and to minimize the impacts of
the proposed South Wall Graphic on the surrounding neighborhood, the City Manager and
representatives of the Respondents met and negotiated this Agreement.
NOW THEREFORE, in consideration for the exchange of promises contained herein,
and for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by the Parties, the Parties agree as follows:
1. Recitals: The aove Recitals are true and correct and are incorporated herein.
1482 .
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