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R7D-Approve Settlement Agreement w- Seville Acquisition LLClD MIAMIBEACH '':L,' COMMISSION MEMORANDUM TO: Mayor Mattie Herrera Bower and FROM: Jimmy L. Morales, City Manager """"~-..,...:::::_ Jose Smith, City Attorney DATE: June 5, 2013 SUBJECT: A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, APPROVING THE SETTLEMENT AGREEMENT BETWEEN SEVILLE ACQUISITION, LLC, AND THE CITY OF MIAMI BEACH, CONCERNING THE PARTIAL DEMOLITION OF THE BOARDWALK AND THE CONSTRUCTION OF THE BEACHWALK BEHIND THE MARRIOTT EDITION HOTEL AT 29TH STREET AND COLLINS AVENUE, AND AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE THE SETTLEMENT AGREEMENT, AND AUTHORIZING THE CITY MANAGER AND CITY ATTORNEY TO TAKE SUCH ACTIONS AS MAY BE NECESSARY TO CARRY OUT THE INTENT HEREOF. RECOMMENDATION The City Manager and City Attorney recommend the adoption of the resolution approving the settlement agreement. BACKGROUND During the Dr. Stanley Sutnick Citizen's Forum, at the February 6, 2013 Commission meeting, a motion was made and approved by acclamation giving the Administration direction that future segments of the beachwalk should be elevated in order to have an ocean view. Following this motion the City Commission referred discussion of boardwalk matters to the Land Use and Development Committee. Additionally, on October 9, 2012, the Historic Preservation Board passed a resolution encouraging the Commission to consider the retention of the elevated wooden boardwalk and for the City to engage the State in exploring the possibility of developing a process to allow the approval of the elevated boardwalk structures. At the April 23, 2013, Land Use and Development Committee meeting, a discussion of the Boardwalk issue was held. A motion was adopted indicating that there was a consensus reached on keeping the existing, raised boardwalk, and that priority is to be given to completing the beachwalk link between 46 1hand 641h Streets, and then study the potential of adding a bike path at grade, adjacent to the existing raised boardwalk. The Administration was directed to evaluate existing projects that contemplate the removal of portions of the boardwalk, and report back to the LUDC on progress. At the May 81h Commission meeting, during the Dr. Stanley Sutnick Citizen's Forum, representatives from the Seville Marriott project at 29 1h Street and Collins Avenue appeared and spoke to the Commission about their impending development and the difficulty of changing course with the treatment of the rear of their property if they were required to retain the Boardwalk after Agenda Item ~ 1 D Date '7-S-l3 Memo to Commission -Resolution Adopting Settlement Agreement -Seville v. CMB June 5, 2013 Page 2 of5 designing their project to interface with a grade level beachwalk. The City Commission set a special meeting for May 20, 2013 to discuss the matter further. HISTORY The wooden boardwalk was built in the mid-1980's and extended from the south end of Collins Park at 21st Street to the north end of Indian Beach Park at 471h Street. The boardwalk is an elevated wooden structure that lies on state lands but is owned and maintained by the City. The boardwalk is 12 feet wide and is dedicated solely to pedestrian use and for safety does not allow for use by bicyclists. The City of Miami Beach is developing a series of bicycle/pedestrian/greenway projects called the Atlantic Greenway Network (AGN). The AGN will consist of two main trail systems: the beachwalk, which extends in a north/south direction between the erosion control line and the dune system, and the neighborhood trails, which extends in all directions through the south, middle, and north beach neighborhoods. The existing boardwalk is not part of the AGN because its current width does not allow for safe bicycle and pedestrian joint use. However, the beachwalk projects consist of on- grade, ADA accessible pathways that support bicycle use and other recreational activities that are in line with the goals of the AGN. Past & Current Projects In 2009, during the development of theW-Hotel, the boardwalk fronting this property was removed and replaced with pavers from 21st Street to 23rd Street. The developer designed, constructed, and partially funded 885 feet of beachwalk east of the W-Hotel and Collins Park and on the 22nd Street- end. The total project cost was $1,107,225. The developer's construction cost was $582,225 plus another $275,000 in Right-of-Way fees that the City applied to the project. The City contributed the remaining $250,000 toward the project. In October 2012, the City began the removal of the existing elevated boardwalk and replacement with approximately 950 feet of an on-grade paver pathway from the south property line of the Eden Roc Hotel (approximately 45th Street) to the north terminus of the wooden boardwalk at approximately 47th Street. Construction is anticipated to be complete June 2013. Eden Roc funded the permitting and design of the beachwalk. The total construction cost for this project is $1,063,550, which is funded through $704,000 from a Florida Department of Transportation grant and $359,550 from the City. Committed Private Development Projects The Planning Department, as part of the development review process, has accepted voluntary proffers from a number of upland properties that are adjacent to the boardwalk for them to assist in the development of segments of a public beachwalk. The Fontainebleau, Ocean Grand Hotel, Versailles Project, Saxony Project, Seville Project, and the Perry Hotel have all committed or are in negotiations with the City to construct or fund the construction of a beachwalk for the public benefit. On May 20, 2013 the City Commission voted to allow the Perry Hotel to remove the boardwalk behind that property (23rd -241h Street). The Saxony Hotel Project is currently under construction and we have reached out to their representatives. Comprehensive Plan The 2025 Miami Beach Comprehensive Plan was adopted by the City Commission on April 13, 2011 and became effective July 1, 2011. Pursuant to the policy adopted by the City Commission as part of the 2025 Miami Beach Comprehensive Plan, the Administration has continued to implement the beachwalk and baywalk projects in order to further the City's vision of a continuous on-grade recreational path running north/south along the coast linking the City's South, Middle, and Memo to Commission -Resolution Adopting Settlement Agreement~ Seville v. CMB June 5, 2013 Page 3 of5 North Beach Neighborhoods. As recently as December 2012, for example the City Commission approved a deal with the developer of the Saxony Hotel site to replace the Boardwalk from 32nd Street to 36 1h Street. Beachfront Management Plan & Atlantic Greenway Network The City's Beachfront Management Plan with the State of Florida also lists the development of the AGN as a management activity that enhances the natural resource value and/or public recreation value for which the lands were acquired. The Beachfront Management Plan states that the AGN serves to help conserve the dune ecosystem and provide significant economic and social benefit by creating a continuous coastal network for alternative transportation and community enhancement. This vision was also documented in the City's Atlantic Greenway Network Master Plan adopted by City Commission on October 17, 2007. As such, it has been the City's policy that as oceanfront properties redevelop the Planning Department, as part of the development approval process, negotiates with private property owners to remove the elevated structure where one exists and to construct an on~grade beachwalk that can safely accommodate bicyclists and pedestrians. Reversing this policy would mean the City would incur the full costs of the Beachwalk at some future date if the Boardwalk were destroyed by storm or decay. The City has already made a substantial investment in the development of the AGN. Florida Department of Transportation (FOOT) funds are available for alternative transportation facilities that improve mobility. To date, the City has obtained more than $6,000,000 in funding from FOOT to design and construct the coastal portion of the AGN. These funds are contingent upon establishing an alternative transportation corridor that is accessible by non-motorized vehicles (bikes, skate boards, roller blades, etc) as well as pedestrians. Other Considerations Although statements have been made that the State required removal of the Boardwalk, the reality is that there were a series of policy considerations that informed the City's policy. First, residents had expressed security concerns. Individuals often loiter beneath the elevated boardwalk. Homeless encampments can often go undetected for long periods of time. Secondly, there were health issues. Large number of feral cats living under the boardwalk can lead to unsanitary conditions that cause a public health concern. Third, there were safety issues with a degrading wooden Boardwalk. Loose planks have lead to injuries and liability for the City. Fourth, the wooden boardwalk does not provide connectivity for bicycles. Finally, the cost of repairing and maintaining the wooden boardwalk far exceeds such costs for the beachwalk. Permitting Requirements All construction that occurs east of the Coastal Construction Control Line (CCCL) requires a permit from the Florida Department of Environmental Protection (FDEP). The CCCL Permitting Program goal is to protect the coastal system from improperly sited and designed structures which can destabilize or destroy the beach and dune system. These standards may be more stringent than those already applied in the rest of the coastal building zone because of the greater forces expected to occur in the more seaward zone of the beach during a storm event. During the CCCL permit application process, FDEP reviews a project's construction plans to determine if the proposed design is a major or minor structure. No major structures can be constructed east of the Erosion Control Line (ECL). In addition, during the permitting process FDEP will request that the footprint of any structure (beachwalk or boardwalk) be within a given set back from the ECL. Until plans are presented to FDEP they will not make a formal determination if Memo to Commission -Resolution Adopting Settlement Agreement-Seville v. CMB June 5, 2013 Page 4 of5 a structure is considered major or minor. The City has not presented FDEP with a plan to permit any new boardwalk structures, thus at this time we do not have precedent on if a new or larger boardwalk structure could be permitted. DEP has informally indicated however, that any widening of the Boardwalk could not push eastward. Clearly, there are serious physical restrictions on any widening. Potential Options On February 6, 2012, Commission directed Administration that future segments of the beachwalk should be elevated in order to have an ocean view. On May 20, 2013 the City Commission held a Special Meeting to discuss the Boardwalk/Beachwalk issue. At the meeting Staff identified four potential alternatives for the boardwalk, including the option ultimately approved by Commission to apply to DEP for construction of a raised beachwalk. Note that the general figure that has been quoted for removal of the boardwalk and construction of the at-grade beachwalk is approximately $1,000 per linear foot of beachwalk. A group of residents that support the Boardwalk have come forward and suggested that the portion of the Boardwalk behind the Seville be replaced by an at grade wooden walk. Several issues are posed by this approach. It does not address the lack of view objections that were raised. Significant maintenance and replacement costs will result from at grade wood in a Beach environment. Warping and separation of the wood can also create ADA compliance issues as well as challenge bikers and strollers. Use of a high grade composite wood will not be as soft a substance for walkers. PLANNING ANALYSIS As mentioned above, several development projects have been approved with requirements for removal of portions of the existing boardwalk and its replacement with an at-grade beachwalk. The pending status of these projects is given below. 2301 Collins Avenue, Perry/One Hotel 2901 Collins Avenue, Seville/Edition Hotel 3301 Collins Avenue, Saxony Hotel 3425 Collins Avenue, Versailles Hotel 3651 Collins Avenue, Ocean Grande 4101 Collins Avenue, Crown 4441 Collins Avenue, Fontainebleau Hotel 4585 Collins Avenue, Eden Roc Hotel Imminent Permit approval pending City Imminent Permit approval pending City Imminent Permit approval pending City Imminent Permit approval pending City Monetary amount to beachwalk only. Not started; may be modified. Boardwalk exists, not yet permitted for demo. Boardwalk demo'd; beachwalk being installed As was presented at the May 20, 2013 meeting, staff believes we need to take a holistic approach to this issue, not piecemeal. Towards that end, we reiterate the proposal presented last time: From 24th Street (starting just north of the Gansevoort/Perry, at Riviera Tower Condo) to 29th Street Uust south of the Seville, ending at the Triton Towers Condo) the City could keep the wooden boardwalk if desired, and still maintain connectivity, as there is roadway, Miami Beach Drive, which is parallel and contiguous to this section of Boardwalk. Bicycle traffic (Atlantic Greenway Network) could be fairly easily routed from the end of the paved beachwalk at 24th Street over to Miami Beach Drive. The wooden boardwalk can be retained between 24th and 29th. This area is overwhelmingly Condo apartments, and the City would be able to accommodate some of the residents in this area that like the wooden Boardwalk. It would be a five block stretch of undisturbed elevated wooden boardwalk that they can walk on, see the ocean, etc. Memo to Commission -Resolution Adopting Settlement Agreement-Seville v. CMB June 5, 2013 Page 5 of5 For those projects from 29 1h Street (Seville) north to 361h Street (the Versailles project), it must be noted that staff is greatly concerned about the legal situation the City may find itself in if the policies governing the Beachwalk project are suddenly reversed. The Seville, Saxony and Versailles projects are all pending approval for their projects in the very near future, and will be delayed significantly if plans need to be revised to reverse policy and scrap the installation of a beachwalk and the retention of the boardwalk. Staff recommends allowing the beachwalk to proceed in this stretch, in order to avoid the prospect of litigation with these pending projects, and with the knowledge that this area is primarily hotels and not residential apartments. North of 36th Street, the Ocean Grande project has proffered a monetary contribution to the Beachwalk project, but no construction is required. Farther north, the Fontainebleau has also proffered a monetary contribution, but no action on this proffer is imminent. In contrast, the Eden Roc has already commenced the demolition of the Boardwalk behind their property and the parkin~ lot to the north. The proposal, therefore, would be to retain the Boardwalk from 36th Street to 4t Street for the foreseeable future. This plan may require additional modifications; however, Planning Department staff believes that it represents a fair compromise. It would permit the group of residents between 24th and 29th to have their existing wooden boardwalk remain, it would maintain the bicycle connectivity required to implement the City's long term mobility vision, it would permit the hotel projects to move forward without requiring major redesigns or sparking litigation, it keeps at least fairly large segments of each facility without piecemealing it too much, and it would permit us the time to design a more raised beachwalk that could accommodate walking and biking with a view of the ocean, if possible. THE SETTLEMENT AGREEMENT The Agreement between the Seville and the City allows the Seville to proceed to partially demolish the boardwalk, between 291h and 30th Streets, based upon their need to continue construction in the rear of their property, as contemplated by their phasing plan. As a precondition of the permit, they have agreed to provide an ADA compliant MOT from the time of demolition until the beachwalk construction is completed rejoining the north-south boardwalk-beachwalk connection. The Seville has agreed to address the issues of concern raised to the City Commission by users of the boardwalk, namely to maintain a view to the ocean, and to attempt to provide a more user friendly surface, by submitting amended applications to the Florida Department of Environmental Protection ("DEP"). The applications would seek to raise the elevation of this segment of the beachwalk approximately one to two feet, to provide a view to the ocean, and to have the DEP consider alternate surfaces for the beachwalk, including wood and a jogger friendly surface. The Seville proposes that it pursue the alternate permitting until December 1, 2013, and accounting for a one week grace period for imminent action by the DEP, after which it would be allowed to construct the beachwalk according to its present proposed plans. CONCLUSION The City Manager and City Attorney recommend the adoption of the resolution approving the settlement agreement. JLM/JS/~!!tRGL T:\AGENDA\2013\June 5\Seville settlement agreement memo 6-5-13.docx RESOLUTION NO. ___ _ A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, APPROVING A SETTLEMENT AGREEMENT BETWEEN SEVILLE ACQUISITION, LLC, AND THE CITY OF MIAMI BEACH, CONCERNING THE PARTIAL DEMOLITION OF THE BOARDWALK AND THE CONSTRUCTION OF A BEACHWALK BEHIND THE MARRIOTT EDITION HOTEL AT 29TH STREET AND COLLINS AVENUE, AND AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE THE SETTLEMENT AGREEMENT, AND AUTHORIZING THE CITY MANAGER AND CITY ATTORNEY TO TAKE SUCH ACTIONS AS MAY BE NECESSARY TO CARRY OUT THE INTENT HEREOF. WHEREAS, replacement of the wooden boardwalk and construction of an at-grade paver beachwalk east of the Erosion Control Line on the State-owned beach west of the dune has been a policy of the City for at least the last decade, an adopted policy of the City's Comprehensive Plan, and of the Atlantic Greenway Network, and a goal of the Administration and City Land Use Boards as part of their review of abutting projects; and WHEREAS, the policy has been predicated upon the notion that the wooden boardwalk has a limited life span, and that while the State would allow repairs, it would not allow expansion or replacement, and given the opportunities provided by private development abutting the boardwalk for its replacement, the City pursued private participation in the replacement effort; and WHEREAS, the design and degradation of the boardwalk contributed to personal injuries to users, and undesirable use by criminals, the homeless and feral cats; and WHEREAS, the Seville has proffered the construction of the at-grade paver beachwalk between 29 1h and 30 1h Streets as part of its reconstruction, renovation and restoration of the historic Seville Hotel at 29 1h Street and Collins Avenue; and WHEREAS, the City has approved such construction through Planning Board, Historic Preservation Board, and Board of Adjustment orders; and WHEREAS, the Seville has adopted a construction phasing plan that requires access through the site where the boardwalk is presently located, and therefore is concerned about the timing of its commencement of the demolition of the boardwalk; and WHEREAS, the City Commission has expressed concerns about the demolition of the boardwalk, following numerous citizen complaints; and WHEREAS, the City Commission has requested clarification of the State policy regarding repair, expansion and replacement of the boardwalk, though such clarification has resulted in a delay of issuance of approvals to commence demolition to the Seville; and WHEREAS, the Seville has also been requested to submit additional material to supplement its plans for demolition and construction, including an ADA compliant means of travel ("MOT") to ensure public access between the boardwalk north and south of the demolition and construction areas, and such MOT is still in discussion between the Seville and City staff and has either not as yet been submitted, or if submitted, is under review or has just been approved; and WHEREAS, the parties have been drafting and negotiating a Settlement Agreement to permit the Seville to proceed with the demolition of the boardwalk to accomplish its phasing plan, but to allow time to investigate alternatives for construction of the beachwalk to be pursued so that solutions to the concerns and complaints discussed above can be explored, and have presented that Settlement Agreement to the City Commission for consideration; and WHEREAS, this settlement, without admitting liability, allows the parties to protect their respective interests and concerns while moving forward based on the expectations and needs of all persons and entities concerned; and WHEREAS, for the foregoing reasons, among others, the City Attorney and City Manager recommend that the City Commission approve the settlement, authorizing the Mayor and City Clerk to execute the Settlement Agreement, subject to such further minor modifications as may be necessary for 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. 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 Settlement Agreement with Seville Acquisition, LLC, and authorizing the Mayor and City Clerk to execute 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. PASSED and ADOPTED this __ day of _______ , 2013. 2 PASSED and ADOPTED this __ day of _______ , 2013. ATTEST: CITY CLERK T:\AGENDA\2013\June 5\Sevi!!e Settlement Agreement reso.docx 3 MAYOR APPROVED AS TO FORM AND LANGUAGE & FOR EXECUTION r-LJ." ~