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HomeMy WebLinkAboutFirst Amendment to Settlement Agreement FIRST AMENDMENT TO SETTLEMENT AGREEMENT THIS FIRST AMENDMENT TO SETTLEMENT AqREI;MENT (the "Amendment") is made and entered into as of the -1l!iL day of Or hbP-. , 2006, by and between: (1) the City of Miami Beach, Florida, a Florida mun'icipal corporation ("City"), (2) TRG-Alaska I, Ltd., a Florida limited partnership ("A-I"), (3)TRG-Alaska III, LLC, a Florida limited liability company ("A-III") and TRG-Block 1, Ltd., a Florida limited partnership ("TRG Block 1 ," and together with A-1 and A-III, "Related"). ~GcC: .~ ~ (~3?i I cj; It/c' )Z ! Ir . :J Introduction and Background WHEREAS, the City of Miami Beach entered into a Settlement Agreement on July 28,2004 (the "Settlement Agreement") with various entities defined therein as the "Portofino Entities" and the "Related Entities;" and WHEREAS, Related now has succeeded to all of the ownership interests in the Land, as such term is defined in the Settlement Agreement, including TRG Block 1, which has succeeded to the ownership interests in the Block One Parcel, as such term is defined in the Settlement Agreement; and WHEREAS, the City Commission adopted Resolution No. 2004-25651 which approved a concept plan for various parcels in the South Pointe area (the "Concept Plan") including the Block 1 Parcel; and WHEREAS, the Concept Plan was formulated after an exhaustive public process which included citizen review and numerous public meetings and workshops through an ad hoc committee of concerned citizens and has also been reviewed by the City staff, the Planning Board, and the Design Review Board, all of whom recommended approval thereof, which resulted in the Concept Plan's approval by the City Commission; and WHEREAS, the Concept Plan for the Block 1 Parcel[, as that term is used in Section 142-698(a)(4), City Code,] is proposed to be modified and the "Modified Concept Plan" attached hereto as Exhibit "A" (the "Modified Concept Plan") has been reviewed by the City staff, the Planning Board, the Design Review Board, and an ad hoc group of concerned citizens, all of whom have recommended approval thereof; and WHEREAS, the Modified Concept Plan is submitted for approval through this Amendment to the Settlement Agreement; and WHEREAS, the developments on the Block 1 Parcel contemplated by the Modified Concept Plan require certain changes to the City's Land Development Regulations, which changes are listed on Exhibit B attached hereto (the "LOR Amendments"), which LOR Amendments are being processed along with this Amendment; and WHEREAS, this Amendment is being entered into to allow implementation of the Modified Concept Plan and adoption of the LOR Amendments, which shall permit the development contemplated in such Modified Concept Plan to proceed. NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows: 1 . Recitations. The foregoing recitations are true and correct and are incorporated herein by this reference. 2. Modified Development Approvals. (a) Condition to Obligation. (i) The obligations of Related under this Amendment are specifically conditioned upon the City and/or its boards, departments or agencies acting in their independent, quasi-judicial and/or legislative governmental capacity to consider and formally approve the Modified Concept Plan and the LOR Amendments (the "Modified Development Approvals".) (ii) The Modified Development Approvals shall be deemed approved at such time as all requisite governmental action has become final, binding and no longer subject to appeal, and if appealed, all such appeals shall have been finally and successfully resolved, which shall herein be referred to as having obtained the "Modified Final Approvals." (iii) In the event that all of the Modified Development Approvals, for any reason, have not been obtained on or before December 31, 2006 and/or the Modified Final Approvals have not been obtained by June 30,2007, or, in the event that any of the required Modified Development Approvals have been denied by the City or other applicable governmental authority, then in any such event Related or the City in their respective sole option, may elect to terminate this Amendment by written notice of termination to the other parties (signed by the parties or by their respective attorneys,) whereupon all of the provisions and obligations of the parties under this Amendment shall fully terminate and be null and void, and all Modified Development Approvals which have been theretofore adopted shall be treated by the City and the other parties as revoked and of no further force and effect. Related shall have the right in its sole discretion to extend the foregoing deadlines by instrument in writing executed by its attorneys. Should this Amendment terminate, the parties agree to promptly execute and deliver to each other such other documentation as may be required to confirm the termination and revocation, and the parties shall otherwise be restored to the condition that existed immediately prior to the date of execution of this Amendment. The provisions of this paragraph 2(a)(iii) shall survive the termination of this Amendment. (iv) If the Modified Final Approvals are obtained prior to the timely delivery of a written notice of termination permitted under paragraph 2(a)(iii) above, then there shall be no further right of termination hereunder. In the event this Amendment is terminated pursuant to paragraph 2(a)(iii) above, Related shall have the right to pursue development of Block 1 according to the original Concept Plan as modified by the City Commission on April 11, 2006 (as to the south building and subsurface easement rights), as if this Amendment had never taken place. The parties hereby covenant not to sue on or appeal any actions that any of the parties take or do not take on applications in pursuit of the Modified Development Approvals. 2 (b) Exercise of City Discretion. The parties recognize and agree that certain provisions of this Amendment will require the City and/or its boards, departments or agencies, acting in their governmental capacity, to consider certain changes in the City's Comprehensive Plan, Land Development Regulations and other applicable City codes, plans or regulations, as well as to consider other governmental actions as set forth in this Amendment. All such considerations and actions shall be undertaken in accordance with established requirements of federal or state statutes and City or county ordinances, or other applicable law, in the exercise of the City's jurisdiction under the police power, as well as the requirements of this Amendment. Nothing in this Amendment is intended to limit or restrict the powers and responsibilities of the City in acting on applications for any of the Modified Development Approvals, by virtue of the fact that the City may have consented to the filing of such applications, solely in its capacity as the owner of affected lands or as the adjacent property owner, or by virtue of the City's entering into this Amendment. The parties recognize that the City, and its boards, retain sole discretion under their police powers as to whether to grant or deny the applications for Modified Development Approvals. The parties fully recognize and agree that these proceedings shall be conducted openly, fully, freely and fairly in full accordance with law and with both procedural and substantive due process to be accorded the applicant and any member of the public. Nothing contained in this Amendment shall entitle Related to compel the City to take any actions processing or approving the applications for Modified Development Approvals, or other actions contemplated by this Amendment, save and except the provisions of paragraphs 3 and 4 below if the Modified Final Approvals are obtained prior to a termination of this Amendment. 3. follows: Paragraphs 5 and 6 of the Settlement Agreement are hereby amended as a. Paragraph 5 is supplemented as follows: The parties agree that the concept plan may be amended from time to time with the approval of both Related and the City Commission. b. Paragraph 6 of the Settlement Agreement is supplemented as follows: A-1 acknowledges receipt of a concept plan for public facilities in South Pointe Park as set forth in the BOOR approved by the City Commission on July 27, 2005 and pursuant to Resolution 2005-25978. The City must provide written approval of the project cost as submitted by A-1 and its contractor and provide a notice to proceed for A-1 and its contractor to begin construction by no later than March 30, 2007, time being of the essence; failing which A-1 shall be released from any and all obligations to build such public facilities otherwise required by the Settlement Agreement. 4. Related Contribution. Upon receipt of the Modified Final Approvals and receipt of an Initial Building Permit for the development of the Modified Concept Plan for 3 the Block 1 Parcel, Related shall contribute One Hundred Seventy Four Thousand Six Hundred and no/100 Dollars ($174,600.00) towards the City's Beachwalk Project or other public project south of Fifth Street. 5. Construction Staqinq Area. Starting on the date that construction activity for the Block 1 project commences and continuing until that date that is two (2) years thereafter, the City shall provide to Related for construction staging purposes no less than 1,320 square feet of public right-of-way for construction staging, which at Related's request shall be as contiguous as reasonably possible, located immediately adjacent to the Block I Parcel. In exchange, Related shall pay to the City the aggregate sum of Twenty Six Thousand Four Hundred and no/100 Dollars ($26,400.00), payable on the same day that the contribution required under paragraph 4 above is due. If Related requires additional construction staging area and/or final certificates of occupancy have not been issued by the end of such two (2) year period, then at Related's request the City shall provide such additional land (to the extent available) and/or extend such two (2) year period in exchange for payment by Related to the City of the sum of Ten Dollars ($10.00) per square foot per annum. 6. Northwest Parcel: Upon receipt of final approvals for the modifications to the Concept Plan outlined in this memo and corresponding amendments to the Land Development Regulations TRG Block 1 hereby commits that upon receipt of a final certificate of occupancy or certificate of completion (or other equivalent certification of completion issued by the City's Building Official) on the improvements on the Northwest Parcel of the Block 1 Parcel, as more particularly described in Exhibit "C" attached hereto (the "Northwest Parcel"), to allow public access from dawn to dusk on such Northwest Parcel as a park, with the exclusion of periods of maintenance and further construction on such Northwest Parcel. Prior to issuance of a building permit (or other equivalent permit) for the structure on the Northwest Parcel, TRG Block 1 shall execute an easement agreement providing for public access for use of the Northwest Parcel as a park, which rights of access shall not commence until the certificate provided for above, and provide for (in such easement agreement or other agreement acceptable to the City) perpetual maintenance of the Northwest Parcel by TRG Block 1 (or its successors in interest), or by the condominium association to be formed in connection with the Block 1 project, or other entity (which entity and source of funding shall be acceptable to and agreed to in writing by the City Attorney and City Manager) which easement agreement shall be in a form reasonably acceptable to the Related Entities and the City. 7. Except as specifically amended by this Amendment, the provisions of the Settlement Agreement remain in full force and effect. 4 EXECUTED as of the date first above written in several counterparts, each of which shall be deemed an original, but all constituting only one agreement. Signed, sealed and delivered in the presence of: CITY: CITY OF MV~M, EACH, FLORIDA, a~muniC(P7 C '0 tion . );" --/ A OR APPROVED AS TO FORM & LANGUAGE & FOR EXECUTION ~itf-~ Ivjo~ Attes~ f ~ City Clerk Robert Parcher W.i.t[2e ...~s.:.. I . /--{Ll1:~ Print Name: ,,' . ~y- TRG-BLOCK I, LTD., a Florida limited partnership BY:~'~_I~"~' ~ ~v~ Af. ~A/6cA1 p~fu&ui~51O Roc1R'9ueJt: TRG-ALASKA I, LTD., a Florida limited partnership By:~n..~U;;:h. p'e: ~Yt!...6 '/h. ~AJSd..J TRG-ALASKA III, LLC., a Florida limited liability company ~);.. ~~L.. ( I . VD ., e.JG m. f3t.-2oA..Kd JJ 5 EXHIBIT LIST A B C MIA-FS1\GANGEMIL\1826114v03\1 nnw203_.DOC\1 0/4/06 T:\AGENDA\2006\oct11 06\Regular\TRG ALASKA AMENDMENT TO SETTLEMENT AGREEMENT(v3) rev GMH.DOC 6 EXHIBIT LIST A Modified Concept Plan B LOR Amendments C Northwest Parcel Exhibit "A" "Modified Concept Plan" ~ I I J I I I I I ,- I I I I I I I r---- I I I I I I l- I I I I I I I I I I I I I ~ l ~ ~ ~~~- lI:~ili~ ~<3",< ::> II: " !!l. co ,.... It) "'" "' '" ~_w ~mi ~9< ~(;;c! ~;!;~ ~~~ ~ --~ " I I I I I I I I -, I I I I I I J --1 I I I I I I I 133~J.S ~s ~ "':;;I h <3i!i ~mw f~ d ~ ~ o ~ ~ "'" _-----------------~.c------------------ SOUTH pO\NTE ORNE ~ w > a: Cl z <( w o o c: t1l Q) c: ~ Qj 15 :::J If) e o o a 1 133H1S 18 ~ ~ I"- ..- IS I( I I I I I I I I ,- I I I I I I I r----- I I I I I I 1---- I I I I I I I I I I I I I co I I I I I I I -- I -- I I It) '<t ____iI!!~ --- d~ ~Im I I I I I I ~I Ii I I I I I I I I I I I I I I I I I I I SOUTH PO\NTE. oF\\VE. ...... 0 11111 ~ l!~! ~ - ~ ~ , :'! N 1 ~l :'! " : ~ ~ .. Ii l' .. 9 ...i ~ .. ~ .. .. ~ro --- 0- .9 .~ (Q~ ro .... ;:: ro .,.... -- .... ~ .,.... -- .,.... I I I I / / I I I I I I I I I i I I J. I r: I ~il I~~ ~ c: o 13 Q) II) t!! o ~ en I ~ ~HI/I/ , j "D Exhibit "8" LOR Amendments ORDINANCE NO. 2006-3539 AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AMENDING THE CODE OF THE CITY OF MIAMI BEACH, BY AMENDING SECTION 114-1, "DEFINITIONS," CLARIFYING THE MEANING OF "SITE;" AMENDING CHAPTER 142, "ZONING DISTRICTS AND REGULATIONS," ARTICLE II, "DISTRICT REGULATIONS," DIVISION 18, "PS PERFORMANCE STANDARD DISTRICT," CLARIFYING THAT FLOOR AREA MAY BE DISTRIBUTED ON BLOCK 1 THROUGH COVENANTS IN LIEU OF UNITY OF TITLE; PROVIDING FOR REPEALER, SEVERABILITY, CODIFICATION AND AN EFFECTIVE DATE. WHEREAS, the City of Miami Beach entered into a Settlement Agreement on July 28, 2004 with various entities known as the "Porto fino Properties" and certain successors in interest that are part of the Related Group of Florida; and WHEREAS, the City Commission adopted Resolution No. 2004-25651 which approved a concept plan for various parcels in the South Pointe area including a parcel known as Block 1; and WHEREAS, the Concept Plan was formulated after an exhaustive public process which included citizen review and numerous public meetings and workshops through an ad hoc committee of concerned citizens and has also been reviewed by the City staff, the Planning Board, and the Design Review Board, all of whom have recommended approval thereof; and WHEREAS, the Concept Plan for the Block 1 Properties as that term is used in the settlement agreement and/or related documents, has been modified and the "Modified Concept Plan" has been reviewed by the City staff, the Planning Board, the Design Review Board, and citizens, all of whom have recommended approval thereof; and WHEREAS, the Modified Concept Plan has been approved by the City Commission through the adoption of Resolution No. 2006-26379 passed and adopted on the 11 thday ofOct~ber 2006; and WHEREAS, the developments on the Block I Properties contemplated by the Settlement Agreement and Concept Plan require certain changes to the City's Land Development Regulations; and WHEREAS, this Ordinance is being adopted to allow implementation of that Modified Concept Plan through the adoption of certain changes to the Land Development Regulations to permit the development contemplated in such Modified Plan to proceed; and WHEREAS, this amendment to the Land Development Regulations was not required by the Settlement Agreement but was independently determined and recommended appropriate for adoption by the City staff and the Planning Board, based upon public input after public hearing, following all requirements of procedural due process attendant thereto; and WHEREAS, the Property in Block 1 affected by this amendment is described in section 142-698(4) as follows: "The "Block 1 Properties" shall mean Lots 1-3,5-13 (and alley adjacent thereto), 17, Block 1, Ocean Beach Florida, PB2, Pg38, Public Records of Miami- Dade County." NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA: SECTION 1. Section 114-1, "Definitions," is hereby amended as follows: The following words, terms and phrases when used in this subpart B, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: * * * Site means a parcel of land considered as a unit, capable of being occupied by a use permitted in this subpart, possessing a continuous or unbroken boundary not divided by a public street, alley. right-of-way, private street, or waterway. Except for properties which are involved in the transfer of development rights where the site is that property within a project that has been approved under chapter 118, article V. * * * SECTION 2. Chapter 142, "Zoning Districts And Regulations", Article II, "District Regulations", Division 18, "PS Performance Standard District", Section 142-698, of the Land Development Regulations, is hereby amended to read as follows: Sec. 142-698. Commercial performance standard area requirements. * * * (d) Notwithstanding the above floor area ratio limits, 75 spaces of required parking located on Block 51 for the Retail Parcel pursuant to a covenant under section 130-36, shall not be counted as permitted floor area. Further, the floor area on the Block 51 Properties and the Block 51 Swap Property may be distributed among such properties by covenant in lieu of unity of title; and the floor area on the Block 1 Properties may be distributed among such properties within the block bv covenant in lieu of unity oftitle. SECTION 3. REPEALER. All Ordinances or parts of Ordinances in conflict herewith be and the same are hereby repealed. SECTION 4. SEVERABILITY. If any section, subsection, clause or prOVlSlon of this Ordinance is held invalid, the remainder shall not be affected by such invalidity. 2 SECTION 5. CODIFICATION. It is the intention of the City Commission that this Ordinance be entered into the Code, and it is hereby ordained that the sections of this Ordinance may be renumbered or relettered to accomplish such intention; and that the word "ordinance" may be changed to "section" or other appropriate word. The Exhibits to this Ordinance shall not be codified, but shall be kept on file with this Ordinance in the City Clerk's Office. This Ordinance shall take effect ten days following ad MAYOR SECTION 6. EFFECTIVE DATE. PASSED and ADOPTED this 11 th day of Dc tober David Dermer .~YPwk ~ITY CLERK Robert Parcher APPROVED AS TO FORM AND LANGUAGE & FOR EXECUTION First Reading: July 12, 2006 Second Reading: October 11, 2006 ~ Date Verified by: Underscore denotes new language T:\AGENDA\2006\ocI1106\Regular\Proposed Block 1 Ordinance rev GH 101106.DOC 3 Exhibit "C" "Northwest Parcel" Legal Description LOT 17, BLOCK 1 OF OCEAN BEACH, FLA., ACCORDING TO THE PLAT THEREOF AS RECORDED IN PLAT BOOK 2, PAGE 38 OF THE PUBLIC RECORDS OF MIAMI-DADE COUNTY, FLORIDA. SAID PARCEL CONTAINS 6,500 SQUARE FEET MORE OR LESS.