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HomeMy WebLinkAbout2006-26347 Reso RESOLUTION NO.2006-26347 A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA APPROVING A S~TTLEMENT AGREEMENT BY AND BETWEEN ZEDEK ASSOCIATES, A FLORIDA GENERAL PARTNERSHIP, AND THE CITY OF MIAMI BEACH, CONCERNING LITIGATION FILED CHALLENGING THE ORDINANCE AMENDING HEIGHT LIMITS IN THE RPS-4 DISTRICT, AND AUTHORIZING THE CITY MANAGER AND CITY CLERK TO EXECUTE SUCH AGREEMENT, AND THE TAKING OF NECESSARY AND APPROPRIATE STEPS FOR THE IMPLEMENTATION THEREOF. WHEREAS, on November 13, 2002 the City adopted Ordinance No. 2002-3386 ("Ordinance"), which affected the heights and setbacks in the RPS-4 Zoning District; and WHEREAS, Zedek owns property at 315 and 321 Ocean Drive, within such district ("Property"); and WHEREAS, Zedek, prior to the adoption of the Ordinance, entered into an agreement with Hotel Simone Development, LLC, the former owner of a portion of the Property, in order to jointly cooperate in the development of the Property ("Joint Agreement"); and WHEREAS, Zedek has since purchased Hotel Simone Development, LLC's interest in the Property; and WHEREAS, the Ordinance provided certain grandfather rights for properties aggregated prior to the effective date of the Ordinance; and WHEREAS, Zedek submitted the Joint Agreement to the City Planning Director for a determination as to whether the Joint Agreement qualified for the grandfathering in the Ordinance; and WHEREAS, upon the advice of the City Attorney that the Joint Agreement did not meet the standards provided for in section 118-5 of the Code for the aggregation of parcels under the City's land development regulations, the Planning Director advised Zedek that the Joint Agreement did not grandfather the property; and WHEREAS, subsequently, Zedek sued the City challenging the Ordinance based on alleged defects in its adoption and substance (the "Lawsuit"); and WHEREAS, Zedek and the City seek to resolve the dispute between them, each without admitting any liability in such dispute; and WHEREAS, in furtherance of such resolution, the City Attorney's Office has again reviewed the Joint Agreement, and has decided to accept it as a reasonable attempt to aggregate the Property for purposes of joint development, which would allow the Property to be grandfathered under the Ordinance; and WHEREAS, The Historic Preservation Board has entered the HP Order attached as Exhibit "A" to the Settlement Agreement and incorporated therein (the "HP Order") granting a Certificate of Appropriateness for a project more specifically described in that Exhibit "A" (the "HP Project"); and WHEREAS, the HP Order has not been appealed and is now final. WHEREAS, the parties have agreed to settle the dispute between them as provided in the Settlement Agreement attached to this Resolution, in that Zedek shall contribute to the City the costs of the reconstruction of the beachwalk on the Ocean side of the Property in the amount of $214,000, calculated at $2,140 per lineal foot at 100 lineal feet, and the City shall accept the Joint Agreement as effectively combining the Property for purposes of grandfathering under the Ordinance. NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND THE CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AS FOLLOWS: That the City Commission hereby approves the Settlement Agreement, in substantially the form attached hereto, however, the Amendment is subject to the final review and approval of the City Manager and City Attorney. The Mayor and City Clerk are hereby authorized to execute such Agreement on behalf of the City, and the City Manager and City Attorney are authorized to take such actions as are necessary or appropriate consistent with the intent of this resolution to implemen e prov'sions of the Settlement Agreement. This Resolution shall take effect immediat pon i ado tion. PASSED and ADOPTED this Ilt~ay of ATTEST:' . ~{~~~ CITY CLERK Robert Parcher APPROVED AS TO FORM AND LANGUAGE & F EX TION ORNEYR- ~ DATE F:\atto\HELG\LITIGA TI\Zedek\Zedek Resolution Approving Settlement Agreement I00306.DOC 2 m MIAMI BEACH City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33139, www.miamibeachfl.gov COMMISSION MEMORANDUM TO: Mayor David Dermer and Members 0 the City Commission FROM: Jose Smith, City Attorne cc: Jorge M. Gonzalez, Ci DATE: October 11,2006 SUBJECT: A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA APPROVING A SETTLEMENT AGREEMENT BY AND BETWEEN ZEDEK ASSOCIATES, A FLORIDA GENERAL PARTNERSHIP, AND THE CITY OF MIAMI BEACH, CONCERNING LITIGATION FILED CHALLENGING THE ORDINANCE AMENDING HEIGHT LIMITS IN THE RPS-4 DISTRICT, AND AUTHORIZING THE CITY MANAGER AND CITY CLERK TO EXECUTE SUCH AGREEMENT, AND THE TAKING OF NECESSARY AND APPROPRIATE STEPS FOR THE IMPLEMENTATION THEREOF. RECOMMENDATION. The City Attorney recommends that the City Commission adopt the Resolution. BACKGROUND. On November 13, 2002 the City adopted Ordinance No. 2002-3386 ("Ordinance"), which affected the heights and setbacks in the RPS-4 Zoning District (reducing the height from 100 ft. to 35 ft. for the first 60 ft. in lot depth, and 75 ft. thereafter, subject to the line-of- sight analysis in Sec. 142-697(d). See Sec. 142-696, Miami Beach City Code.). The Ordinance also allowed that properties with widths of 50 feet or less aggregated after the effective date of the Ordinance shall have a maximum height of 35 feet and shall not be allowed the increased height for parcels wider than 50 feet. Zedek Associates, a Florida general partnership, owns property at 315 and 321 Ocean Drive, within such district. Zedek, prior to the adoption of the Ordinance, entered into an agreement with Hotel Simone Development, LLC, the former owner of a portion of the Property, in order to jointly cooperate in the development of the Property (the "Joint Agreement"). The City Attorney's Office and the Planning Director, however, concluded that the Joint Agreement did not meet the standards of Sec. 118-5 for aggregation of properties under the City Code, and thus the properties failed to qualify for grandfathering under the Ordinance. Agenda Item Date C,7D /O-II-Ob Commission Memorandum - Zedek Associates v. City of Miami Beach October 11 , 2006 Page 2 of 3 In October 2005, Zedek filed suit challenging the Ordinance as being improperly adopted due to insufficient notice, and challenging the substance of the Ordinance. During the course of litigation it became apparent that the City Attorney's opinion was very conservative, and alternate interpretations of the Joint Agreement's compliance with the Ordinance were possible. Further, if the plaintiff prevailed, it would have been entitled to construct a structure on the property in accordance with the prior ordinance that permitted 100 ft. in height for the entire structure. As stated above, the ordinance as amended would only allow 35 ft. in height for the front 60 ft. of the property's depth, with 75 ft. in height for the rear portion of the structure. The City Commission met in attorney-client session on April 11, 2006 and authorized the City Attorney to negotiate a settlement agreement with representatives of Zedek, whereby Zedek would stipulate to a dismissal of its challenge to the Ordinance, and construct in accordance with the reduced heights permitted under the Ordinance, if the City accepted the alternate interpretation of the Joint Agreement's compliance with the grandfather provisions of the Ordinance. The attached settlement agreement is the result of such negotiations. The City has already undertaken the procedures necessary for readopting the Ordinance, to avoid future challenges to its effectiveness on procedural grounds. ANAL YSIS. Zedek was allowed to submit a proposed design of the project to the Historic Preservation Board, to demonstrate how it would comply with the Ordinance. Such project has been approved by the Board, subject to this settlement. The HP Order has not been appealed and is now final. The parties have agreed to settle the dispute between them as follows: the parties agree to the dismissal of the lawsuit, each party to bear its own costs and attorneys' fees, following the issuance of permits for the Project that become final and nonappealable. Further, Zedek will contribute to the City the costs of the reconstruction of the beachwalk on the Ocean side of the Property in the amount of $214,000, calculated at $2,140 per lineal foot at 100 lineal feet. This contribution shall be made: (a) at the time of issuance of the full building permit for the HP Project, or another project in accordance with the Property's grandfather status under the Ordinance, if the City is ready to engage in the reconstruction of the beachwalk at that time; or (b) within 60 days of a request for payment by the City, if the City is ready to begin construction prior to the issuance of the Certificate of Use and Occupancy for the Project; or (c) no later than the issuance of the Certificate of Occupancy for the Project. In any event, the payment is tied to a project being developed on the Property, and until a project moves forward such payment is not due. When the project does move forward, one of the above timing scenarios will come into play. The City further acknowledges that the HP Project is not nonconforming, and Zedek is entitled to seek an extension of time of the HP Order to obtain a full building permit for the Project. After approval of this Settlement Agreement by the City Commission, the parties agree to file a joint stipulation dismissing the Lawsuit with prejudice and asking the Court to retain jurisdiction to enforce the terms of the Settlement Agreement. Commission Memorandum - Zedek Associates v. City of Miami Beach October 11 , 2006 Page 3 of 3 CONCLUSION The City Attorney recommends that the City Commission adopt the Resolution. JS/GMH F:\atto\HELG\L1TIGATI\Zedek\Memo to Commission Zedek Settlement Agreement 101106.doc HISTORIC PRESERVATION BOARD City of Miami Beach, Florida MEETING DATE: July 11, 2006 FILE NO: 3690 PROPERTY: 315-321 Ocean Drive - Bijou LEGAL: Lots 6 & 7, less the westerly 15.00 feet thereof for Street Widening purposes, Block 115 of OCEAN BEACH ADDITION NO.4, According to the Plat Thereof, as Recorded in Plat Book 3, Page 151, of the Public Records of Miami-Dade County, Florida. IN RE: The Application for a Certificate of Appropriateness for the substantial demolition of the existing 3-story Simone Hotel, along with the construction of a new 7-story building. ORDER The applicant, Zedek Associates, filed an application with the City of Miami Beach Planning Department for a Certificate of Appropriateness. The City of Miami Beach Historic Preservation 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: A. The subject property is located within the Ocean Beach Local Historic District. 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 consistent with the Certificate of Appropriateness Criteria in Section 118-564(a)(1) of the Miami Beach Code, is not consistent with Certificate of Appropriateness Criteria a, b, f & g in Section 118-564(a)(2) of the Miami Beach Code, is not consistent with Certificate of Appropriateness Criteria b, d & m in Section 118-564(a)(3) of the Miami Beach Code, and is not consistent with the Certificate of Appropriateness for Demolition Criteria 2,8 & 9 in Section 118-564(f)(4) of the Miami Beach Code. C. The project would be consistent with the criteria and requirements of section 118-564 if the following conditions are met: ~ Exhibit" A" Page 2 of 8 HPB File No. 3690 Meeting Date: July 11, 2006 1. This approval is subject to the consummation of the settlement with the City on the pending action, Zedek Associates v. City of Miami Beach, case no. 05-19628 CA 31. 2. Revised elevation, site plan and floor plan drawings shall be submitted to and approved by staff; at a minimum, such drawings shall incorporate the following: a. The portions of the original Simone Hotel, which are being retained and preserved, shall be full rehabilitated and restored, in a manner consistent with all available historic documentation, and subject to the review and approval of staff; this shall include, but shall not be limited to, windows, doors, exterior features and details, and all portions of the historic lobbies. b. The requirements of Section 118-395(2)d.1.ii & iii of the City Code, pertaining to Repair and/or rehabilitation of nonconforming buildings and uses, as described in the zoning analysis, shall be waived by the Board, for the purposes of restoring or replicating the front portion of the existing structure. c. All glazing within the restored portion of the Simone hotel shall be clear, subject to the approval of the Florida Department of Environmental Protection. d. The north and west elevations shall be further studied and refined in order to provide a better transition from the north elevation to the west elevation, in a manner to be approved by staff. e. The aluminum louver system of the east elevation shall be continued on the north elevation of the circulation core, to help reduce the scale of this mass, in a manner to be reviewed and approved by staff. f. The design of the south elevation of the 2-story garage entrance shall be further developed, in a manner to be reviewed and approved by staff. g. Additional details of the garage doors shall be provided and shall incorporate glazing as indicated in the renderings provided, in a manner to be reviewed and approved by staff. h. The proposed system(s) of aluminum sunscreens, louvers, and exterior aluminum architectural framing elements and features shall be further refined and designed in a manner that uses only high quality components, finishes, and details that will ensure the long term structural durability and aesthetic appearance of the system(s) with minimal maintenance, in a manner to be reviewed and approved by staff. i. All ventilation required for the parking levels shall be chased through the subject structure up to roof, in a manner to be reviewed and approved by staff. The location of all required mechanical and ventilation fixtures and iW Page 3 of 8 HPB File No. 3690 Meeting Date: July 11, 2006 devices for the parking levels shall be clearly delineated on the floor plans and site plans and shall be subject to the review and approval of staff. j. All trash containers shall utilize rubber wheels, or the path for the trash containers shall consist of a surface finish that reduces noise, in a manner to be reviewed and approved by staff. k. A complete, detailed historical resources report shall be submitted, in a manner to be reviewed and approved by staff. I. Manufacturers drawings and Dade County product approval numbers for all new windows, doors and glass shall be required, prior to the issuance of a building permit. m. 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 approved by staff. n. 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. 3. 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: 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. All exterior walkways shall consist of decorative pavers, set in sand or other decorative material, subject to the review and approval of staff. c. 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. d. The utilization of root barriers and/or structural soil, as applicable, shall be clearly delineated on the revised landscape plan. e. The applicant shall verify, prior to the issuance of a Building Permit, the exact location of all backflow preventors and all other related devices and fixtures; such fixtures and devices shall not be permitted within any required yard or any area fronting a street or sidewalk. The location of backflow preventors, ~ Page 4 of 8 HPB File No. 3690 Meeting Date: July 11, 2006 siamese pipes or other related devices and fixtures, if any, 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. f. 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. g. 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. 4. The following conditions, as proferred by the applicant: a. No loudspeakers shall be affixed to and located on the exterior of the premises, inclusive of rooftop, patios, terraces, and pool deck area, except as may be required for fire or building code purposes. b. To the extent permitted by law, the Owner and its successors shall prohibit portable stereo equipment, including amplifiers and speakers to be operated other than in the interior of the building. c. No outdoor live music shall be permitted at any time, except as may be permitted in a valid Special Event permit issued by the City after notice to the adjoining properties. Any such permit shall be for a private noncommercial party or charitable event and shall be limited to no more than one day. d. Outdoor and indoor Entertainment Establishments shall be prohibited; this shall not prohibit the establishment of a Gym/ Health club. e. No alcoholic beverage license shall be obtained for or operated on the premises. f. No restaurant may be permitted on the Property. g. No sidewalk cafe shall be permitted on the Property. h. Rooftop, deck or patio use shall be solely for unit owners, their lessees, invitees and guests. ~ Page 5 of 8 HPB File No. 3690 Meeting Date: July 11,2006 i. Any commercial, retail, private club, accessory use, or any facility operating or seeking to operate under an alcoholic beverage license shall be prohibited on the property. j. To the extent permitted by law, the Owner and its successors shall prohibit noise that is prohibited under the City of Miami Beach noise ordinance, Chapter 46, Article IV, as it may be amended from time to time. k. To the extent reasonably possible, the Owner and General Contractor shall ensure that workers, contractors, subcontractors and all personnel admitted to the job site do not operate portable radios or vehicle radios. This specific requirement will be included in all contracts and subcontracts for construction, suppliers, service and any vendor activity that will take place on the Property. I. The owner or general contractor shall arrange for adequate site security and patrols during construction. 5. All new, non-historic building signage shall be consistent in type, composed of flush mounted, non-plastic, non-illuminated, individual letters and shall require a separate permit. If historic documentation of an original wall sign is found, such historic sign shall be re-introduced, in a manner to be approved by staff. 6. 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. 7. 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. 8. An historic analysis of the existing structures, inclusive of a photographic and written description of the history and evolution of the original building on site, shall be submitted to and approved by staff, prior to the issuance of a Building Permit; such historic analysis shall be displayed prominently within the public area of the structure, in a location to be determined by staff. 9. All new and altered elements, spaces and areas shall meet the requirements of the Florida Accessibility Code (FAC). 10. 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. 11. 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 ~ Page 6 of 8 HPB File No. 3690 Meeting Date: July 11, 2006 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. 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. 12. A drawn plan and written procedure for the proposed demolition shall be prepared and submitted by a Professional Structural Engineer, registered in the State of Florida, which fully ensures the protection of the public safety, as well as the ~ Page 7 of 8 HPB File No. 3690 Meeting Date: July 11, 2006 protection of the existing structure on the subject site and all existing structures adjacent to the subject site during the course of demolition. 13. The Certificate of Appropriateness for Demolition shall only remain in effect for the period of time that there is an active Certificate of Appropriateness for the associated new construction on the subject property. 14. The Final Order shall be recorded in the Public Records of Miami-Dade County, prior to the issuance of a Building Permit. 15. 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. 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 by the Board, that the Certificate of Appropriateness is GRANTED for the above-referenced project subject to those certain conditions specified in paragraph C of the Findings of Fact (Condition Nos. 1-15, inclusive) hereof, to which the applicant has agreed. No building permit may be issued unless and until all conditions of approval as set forth herein have been met. The issuance of a Certificate of Appropriateness does not relieve the applicant from obtaining all other required Municipal, County and/or State reviews and permits, including zoning approval. If adequate handicapped access is not provided, this approval does not mean that such handicapped access is not required or that the Board supports an applicant's effort to seek waivers relating to handicapped accessibility requirements. When requestino a buildino permit. three (3) sets of plans approved by the Board, modified in accordance with the above conditions, as well as annotated floor plans which clearly delineate the Floor Area Ratio (FAR) calculations for the proiect. shall be submitted to the Plannino Department. If all of the above-specified conditions are satisfactorily addressed, the plans will be reviewed for building permit approval. Two (2) sets will be returned to you for submission for a building permit and one (1) set will be retained for the Historic Preservation Board's file. If the Full Building Permit for the project is not issued within eighteen (18) months of the meeting date at which the original Certificate of Appropriateness was granted, and construction does not commence and continue in accordance with the requirements of the applicable Building Code, the Certificate of Appropriateness will expire and become null and void, unless the applicant, prior to expiration of such period, makes application to the Board for an extension of time; the granting of any such extension of time shall be at the discretion of the Board. At the hearing on any such application, the Board may deny or approve the request and modify the above conditions or impose additional conditions. Failure to comply with this Order shall subject the Certificate of Wt\ Page 8 of 8 HPB File No. 3690 Meeting Date: July 11, 2006 Appropriateness to Section 118-564, City Code, for revocation or modification of the Certificate of Appropriateness. Dated this {7 day of JJ{\ , 20()G . BY: THO AS R. MOONEY, AI DESIGN AND PRESERV f:\ ION MANAGER FOR THE CHAIR STATE OF FLORIDA ) )SS COUNTY OF MIAMI-DADE ) The foregoing instrument was acknowledged before me this ) 7 r/f day of Tv L- 'I 20Qi by Thomas R. Mooney, Design and Preservation Manager, Planning Department, City of Miami Beach, Florida, a Florida Munici rporation, on behalf ofthe Corporation. He is personally knQwn to me. 1\. {{\ . NOTARY PUBLIC C (,( j+-l..l Miami-Dade County, Florida My commission expires: Approved As To Form: Legal Department: ~ ( 1/1 Y /0" ) ?'/I 7/6 b ( ~) Filed with the Clerk of the Historic Preservation Board on F :\PLAN\$HPB\06HPB\JuIHPB06\3690.fo.doc ~