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2006-007 RESOLUTION NO. 2006-07 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF A VENTURA, FLORIDA, APPROVING SETTLEMENT AGREEMENT BETWEEN SHEFAORlTARRAGON, LLLP, AND THE CITY OF AVENTURA, CONCERNING 8.77 ACRE x PARCEL OF LAND LOCATED AT 17900 NORTHEAST 31ST COURT IN THE CITY OF AVENTURA, COMMONLY KNOWN AS THE LINCOLN POINTE PROPERTY; AUTHORIZING EXECUTION OF SETTLEMENT AGREEMENT; AUTHORIZING IMPLEMENTATION OF SETTLEMENT AGREEMENT; PROVIDING FOR EFFECTIVE DATE. WHEREAS, the City Commission of the City of Aventura, upon the recommendation of the City Manager and City Attorney, finds that approval of the Settlement Agreement (the "Agreement") between Shefaor/Tarragon, LLLP and the City of A ventura, is in the best interest of the City. NOW, THEREFORE, IT IS HEREBY RESOLVED BY THE CITY COMMISSION OF THE CITY OF A VENTURA, FLORIDA, AS FOLLOWS: Section 1. Recital. That the above stated recital is hereby confirmed and adopted. Section 2. Al!reement Aooroved. That the Agreement, in substantially the form attached hereto, between Shefaor/Tarragon, LLLP and the City of A ventura, is hereby approved, and the City Manager is hereby authorized to execute the Agreement on behalf of the City of A ventura, once approved by the City Attorney as to form and legal sufficiency. Section 3. Imolementation. That the City Manager and City Attorney are hereby authorized to take any and all actions which are necessary to fully implement and effectuate this Resolution and the Agreement. Section 4. adoption hereof. Effective Date. That this Resolution shall become effective immediately upon The foregoing Resolution was offered by Commissioner Holzberg, who moved its adoption. The motion was seconded by Commissioner Diamond, and upon being put to a vote, the vote was as follows: Commissioner Zev Auerbach Commissioner Bob Diamond Commissioner Harry Holzberg Commissioner Michael Stern Commissioner Luz Urbaez Weinberg Vice Mayor Billy Joel Mayor Susan Gottlieb m m m m absent m no Resolution No. 2006-07 Page 2 PASSED AND ADOPTED this 19th day of Jan,ry, 2006. Attest: Approved as to Form Legal Sufficiency: r H~~ City Attorney 2 SETTLEMENT AGREEMENT SHEFAORlTARRAGON, LLLP, a Florida Limited Liability Limited Partnership (the "Developer") with joinder by A VENTURA TARRAGON GP, LLC, a Florida Limited Liability Company, AVENTURA TARRAGON LP, LLC, a Florida Limited Liability Company, SHEFAOR BH, LLC, a Florida Limited Liability Company, TARRAGON SOUTH DEVELOPMENT CORP., a Florida corporation and PINNACLE COMMUNITIES, L.L.c., a New Jersey Limited Liability Company, (collectively and individually referred to herein as the "Joining Parties"),. and the CITY OF A VENTURA, FLORIDA, a Florida municipal corporation (the "City"), hereby enter into this Settlement Agreement (the "Agreement"), effective as of January 19, 2006, as follows: RECITALS (A) (B) below. 1. Developer is the owner of the Property which is described in paragraph 2. City is a duly organized Florida municipal corporation. 3. The Joining Parties are each an entity which is listed and included herein as a signatory to this Agreement for the purpose of binding that entity to the provisions of paragraph 13 herein. (B) Developer is the current fee simple owner oftitle in and to that certain 8.77 acre:!: parcel located at 17900 Northeast 31st Court, in the City of Aventura, Florida, which parcel is currently developed as an 285 unit apartment complex built in 1991, commonly referred to as "Lincoln Pointe", and is described on Exhibit "A", a copy of which is attached hereto and by this reference is made a part hereof (the "Property"); (C) The City has zoning jurisdiction over lands in the City, including the Property; (D) The Property is zoned RMF4 under Section 31-143 of the City's Land Development Regulations (the "LDR"); (E) Pursuant to Ordinance Number 2005-07 (the "Moratorium Ordinance") as adopted by the City Commission on June 7, 2005, the Developer has been temporarily unable to redevelop the Property from its current composition of apartment buildings into a multi-family condominium and townhouse community pursuant to the existing RMF4 zoning; (F) Pursuant to the Moratorium Ordinance, Developer sought to demonstrate that it possessed the vested rights to redevelop the Property during the pendency of the moratorium pursuant to the vested rights provisions ofthe Moratorium Ordinance; (G) Pursuant to Resolution Number 2005-48, the City Commission, after a public hearing, denied the vested rights application of Developer; (H) On October 7, 2005, Developer filed a Petition for Writ of Certiorari seeking to challenge Resolution Number 2005-48 pursuant to Certiorari proceedings styled as Shefaor/Tarragon, LLLP vs. City of Aventura, Florida, Case No. 05-392-AP, in the Appellate Division of the Circuit Court of the Eleventh Judicial Circuit, in and for Miami-Dade County, Florida (the "Appellate Litigation"). Further, pursuant to action filed in Circuit Court of the Eleventh Judicial Circuit, in and for Miami-Dade County, Florida, Case No. 05-20125 CA 06, styled as Shefaor/Tarragon, LLLP vs. City of Aventura, et a!., (the "Original Litigation") Developer filed a complaint seeking to overturn Resolution No. 2005-48, and sought to establish its vested rights to redevelopment of the property with a building consisting of five hundred twenty six (526) units and forty (40) stories in height (collectively, the "Litigation"); (1) The Appellate Litigation has been stayed by the Court pending resolution of the Original Litigation; 2 (J) The City has responded to the complaint in the Original Litigation by seeking its dismissal; (K) The Developer and City believe that the Litigation, in all likelihood, would be highly contested, fact intensive and costly; (L) In an effort to reach an amicable resolution of the Litigation, Developer and the City have participated in settlement negotiations in an effort to establish a framework for the potential resolution of the claims and defenses raised or which might be raised in the Litigation; (M) The signatories to this Agreement represent and warrant to each other that they have the full power and authority of their principals to execute and perform their respective obligations under this Agreement and, where appropriate, have obtained the requisite authority to enter into this Agreement. NOW, THEREFORE, IN CONSIDERATION OF THE PREMISES AND OF THE GOOD AND VALUABLE CONSIDERATION WHICH EACH PARTY ACKNOWLEDGES TO HAVE BEEN RECEIVED FROM THE OTHER, THE CITY AND DEVELOPER, WITH JOINDER BY EACH OF THE ENTITIES DESCRIBED AS THE JOINING PARTIES IN PARAGRAPHS (A)(3) ABOVE, HEREBY AGREE AS FOLLOWS: TERMS OF SETTLEMENT 1. Each of the above-stated Recitals is hereby adopted and confirmed. 2. (a) Developer shall, in accordance with Section 3 "Waivers" of the Moratorium Ordinance, file a waiver application (the "Waiver Application") with the City, in order to enable the Developer to be authorized to implement the redevelopment described in 3 paragraphs 7 and 8 herein, subject to the approval of the Waiver Application by City Commission. (b) Developer recogmzes that in order for the Waiver Application to be granted, substantial competent evidence must be presented to the City Commission which demonstrates that the specific use or activity requested by the Waiver Application will not detrimentally affect the preparation and implementation of the Growth Management Regulations (as defined in the Moratorium Ordinance), will be compatible with surrounding land uses, and will not impair the public health, safety or welfare. 3. The parties recognize that the consideration of the Waiver Application for a waiver of the provisions of the temporary moratorium, as established by the Moratorium Ordinance, constitutes a quasi judicial action and decision of the City Commission, and that accordingly, the City Commission does not hereby commit itself to approve or grant the Waiver Application, but instead simply agrees to process and consider said Waiver Application in accordance with the applicable requirements of law as provided by the City Moratorium Ordinance criteria pertaining to the grant or denial of a Waiver Application. The decision to grant or deny the Waiver Application shall be based solely upon the substantial competent evidence presented during the course of the quasi judicial proceedings in accordance with Section 34-31 of the City Code. 4. (a) In the event that the Waiver Application is granted by the City Commission, the City shall provide for site plan and building permit plan review by the City on an expedited basis at no additional supplemental charge to Developer. This shall not impair or waive the normal site plan review fees and building permit plan review and inspection fees, but shall solely waive the special charge which is generally imposed for expedited review by the 4 City. Further, in the event that the Waiver Application is granted, City commits itself to expeditiously process, consider, and issue decisions regarding any necessary additional City approvals, in accordance with law. (b) Further, in the event that the Waiver Application is approved by the City Commission, all requests for, and issuance of, City development approvals shall be in accordance with the City's Land Development Regulations in effect at the time of the filing of the Waiver Application. (c) In the event that the Waiver Application is approved by the City Commission, it is recognized that the preliminary site plan submitted in connection with the Waiver Application is necessarily conceptual, subject to additional detail being provided by Developer, and that the Waiver Application site plan reflects development that, if the Waiver Application is granted, is permissible in accordance with the City's land development regulations which will be applicable as specified in this Agreement. Accordingly, if the Waiver Application is granted, the City agrees that in reviewing subsequent revisions to the preliminary site plan and the details thereof, the Developer shall be allowed reasonable flexibility within the parameters of the applicable land development regulations which are specified herein, and that the City shall process all applications which are aimed at finalizing the site plan in an expedited manner without supplemental charges for expedited review. However, nothing in this paragraph (c) shall be construed in any manner which enables Developer to exceed the building height and number of dwelling units which are expressly stated in this Agreement. 5. Upon final approval, if any, of the Waiver Application by the City Commission, so that the redevelopment of the Property may occur in accordance with the provisions described herein, the ordinances of the City, and applicable law, and fOllowing the expiration of the time 5 for an appeal from the grant of the Waiver Application by any interested party (or, if an appeal or other contest is pursued, upon the final disposition thereof), the Developer shall file a Notice of Dismissal of the Original Litigation without prejudice. Except as specified in paragraph 12, each party agrees to bear its own attorney's fees and costs. Additionally, at the time of the filing of the Notice of Dismissal of the Original Litigation, the parties shall file a joint motion for a further stay of the Appellate Litigation pending the issuance, in accordance with law, of a City building permit for the foundation of the Tower. Upon issuance of the City building permit for the foundation of the Tower, the Developer shall file a Notice of Dismissal of the Appellate Litigation, with prejudice. Each party agrees to bear its own attorney's fees and costs, except as specified in paragraph 12. 6. In the event that the Waiver Application is not granted, or in the event that the Waiver Application is granted but does not become final because of adverse court action, the parties shall be permitted to pursue any rights and remedies they possess, unless otherwise specified herein. 7. The redevelopment of Lincoln Pointe (the "Development") to be constructed shall not exceed four hundred sixty (460) dwelling units of which number a total of at least forty four (44) shall be townhouse units. None of the townhouse units shall be located in the four hundred sixteen (416) unit Tower but they shall be situated abutting the outside of the base or lower levels of the Tower (with exterior, non-lobby of Tower entrance), as an adjunct of the parking garage, or as a free-standing building or buildings. 8. The single tower building (the "Tower") to be constructed at the Development shall not exceed a height of twenty-eight (28) stories, but may reach an overall height of not greater than three hundred fifteen (315 ') feet including all habitable spaces, mechanical and other 6 '._~-"---,.--"-,,- -~'-"'--"-'-"-'-'--.-'r- - ---.. ._~._...,..,-- building equipment, apparatus and non-habitable spaces or architectural features, so as to achieve a height which is compatible with development in the vicinity. It is recognized that the twenty eighth (28th) story of the Tower may consist of penthouse units which may each have a two level floor plan. 9. In the event that the Waiver Application is granted, Developer agrees that it shall not seek to obtain any conditional use approval under the City's presently pending amendments to the City's Land Development Regulations, in the event of the adoption of said pending amendments to the Land Development Regulations, for the purpose of establishing a height or density which exceeds the height and density which is expressly set forth in this Agreement. 10. (a) In order to facilitate the acquisition of the necessary right of way or land from the owners of that certain one-half (1/2) acre:!: of property (the "Easement Area"), as described on Exhibit "B", a copy of which is attached hereto and incorporated herein, the City shall diligently utilize its good faith reasonable efforts to obtain the right to enable the Easement Area to be converted to a public road and to be improved as described in paragraph 11 below. (b) This obligation of the City, as described in paragraph 10(a) above, shall be subject to the condition precedent that the Developer first deposits with the City, pursuant to an escrow agreement which is approved by the City Attorney and Developer's Attorney, the sum of One Hundred Thousand ($100,000.00) Dollars with a mutually agreeable local escrow agent, to be utilized by the City for obtaining any necessary City interest in the Easement Area. (c) Developer shall, at no charge to City, convey any of its interests in the Easement Area to City to the extent necessary to establish a public road once all other necessary interests are obtained by City. The instrument of conveyance used by Developer may provide for a 7 reversion of Developer's interest if the Improvements described in paragraph II are not implemented and completed by City in accordance with this Agreement. (d) In the event that it is not necessary for the City to utilize all of these escrow funds for such purpose, City shall utilize the escrow funds for the benefit of the Media Center at City's Charter School. II. (a) Developer shall diligently pursue, and shall use its reasonable good faith efforts to obtain, any and all necessary governmental approvals (the "Approvals"), including but not limited to the approval of the Miami-Dade County DERM, for the upgrade and improvement (the "Improvements") to the Easement Area so as to facilitate the service of the Easement Area as the access road for the Development and for other existing developments in the vicinity. The Improvements shall include widening of the road surface, installation of lighting, upgrade of drainage, installation of a sidewalk and safety barriers, any necessary modification of the DERM wetland conservation easement, all as described in the preliminary plan (the "Plan"), a copy of which is attached hereto as Exhibit "C" and incorporated herein, subject to the City Manager's and DERM's approval of the final Plan. The Approvals shall be sought by Developer for a period of no less than two hundred seventy (270) days following the date that the Waiver approval becomes final or the date that the Waiver approval is no longer subject to appeal or further appellate review. The City shall cooperate with the efforts of Developer in obtaining the necessary Approvals. (b) If the Easement Area is obtained by City and the Approvals are obtained by Developer, the Improvements shall be implemented at the sole cost and expense of Developer by City's construction of the Improvements prior to the issuance of a Certificate of Occupancy for the Development. Developer shall be responsible to provide, at its sole cost and expense, all 8 ..,..,.._~- design, planning, surveying and engineering work for the Improvements. In the event that the Waiver Application is granted, the City shall not take any action concerning the acquisition of the Easement Area or the implementation of the Improvements of the Easement Area which would cause the authorized redevelopment of the Property not to comply with all applicable City codes, rules or regulations. (c) In order to secure its commitments hereunder concerning the Improvements, Developer shall provide to City a letter of credit for the benefit of the City in an amount which is not less than Three Hundred Fifty Thousand ($350,000.00) Dollars. Developer shall be responsible for any additional cost which is necessary to implement the Improvements in accordance with the final Plan. In the event that the reasonable costs of the Improvements exceed Three Hundred Fifty Thousand ($350,000.00) Dollars, the Developer shall increase the Letter of Credit to include said costs. Upon completion of the Improvements and the fulfillment of Developer's obligation to fund the Improvements, the Letter of Credit shall terminate. (d) In the event that the Approvals are not obtained by Developer, the City shall, at the City Manager's discretion, still be authorized to draw upon the letter of credit in an amount not to exceed City's reasonable cost in accomplishing the Improvements, up to the full Three Hundred Fifty Thousand ($350,000.00) Dollar limit of the letter of credit upon City obtaining the Approvals within two (2) years after the grant of the Waiver or after the Waiver becomes final and no longer subject to any appeal or appellate review proceedings. (e) The form of the letter of credit shall be subject to approval by the City Attorney and Developer's attorney and shall have a term of not less than three (3) years. The 9 letter of credit shall be provided by Developer to City prior to application for the issuance of any City building permit for the Development. 12. Prior to applying for the issuance of any building permit for the Development, Developer shall contribute an additional sum of One Hundred Fifty Thousand ($150,000.00) Dollars to the City. This contribution shall be utilized by the City for the purpose of City transit system improvements (including enhancement of shuttle bus services or off-set of cost of operation of the shuttle bus service of the City), and reimbursement of the City's legal fees related to the Litigation. 13. Effective upon issuance of a City building permit for the foundation of the Tower, Developer and each of the Joining Parties shall execute and deliver to City releases waiving and relinquishing any and all causes of action or claims against the City and City's officers (whether elected or appointed), agents, employees and Commissioners, which in any way arises out of or pertains to the Litigation or to the moratorium, or to the zoning, land use or other development status of the Property. Further, in the event that the Original Litigation is dismissed as provided in paragraph 5, but that Developer, notwithstanding City's compliance with City's obligations pursuant to this Agreement, fails to diligently apply for or determines not to apply for a City building permit for the foundation of the Tower on or before a date which is ninety (90) days after the dismissal of the Original Litigation, because of a change of Developer's plans, a change of circumstances or otherwise, Developer and each of the Joining Parties shall still be obligated to execute and deliver to City the releases described above upon written demand by the City, and Developer shall at that time provide for dismissal of the Appellate Litigation, with prejudice. Each party agrees to bear its own attorney's fees and costs related to such Appellate Litigation, 10 except as specified in paragraph 12. The form of the releases shall be subject to the review and approval of the City Attorney. 14. The City recognizes that at the quasi judicial hearing on the Waiver Application, it shall not generally be permissible for the City to seek to obtain additional concessions from Developer, beyond those set forth in this Agreement, but that instead, at such hearing, the City Commission shall simply determine, in accordance with the criteria of Section 3 of the Moratorium Ordinance, whether to grant or deny the Waiver Application. This shall not be construed in any manner which is contrary to paragraphs (2) and (3) of this Agreement or in any manner which is prohibited by law. 15. This Agreement is a product of settlement negotiations. No evidence of the actions proposed herein, including any presentations in any public forum related to the approval and implementation of these terms and conditions, shall be admissible by either party on the merits of the claims in the Litigation. However, this shall not prevent or preclude any of the parties herein from utilizing evidence or presentations from the public hearing conducted on the Waiver Application envisioned herein in any challenge to or defense of the decision made or actions taken upon said Waiver Application by the City Commission. 16. (a) This Agreement, and any of the specific items, covenants, and conditions contained herein, may not be waived, changed, altered or modified except by an instrument in writing signed by all the parties against whom enforcement of such change is sought. The City Manager shall be authorized to act for the City in the implementation of subparagraphs (a) and (b) of this paragraph 16 upon approval of the City Attorney as to the form and legal sufficiency of such action by the City Manager. 11 (b) The parties recogmze that by their nature certain paragraphs of this Agreement shall only be applicable if the Waiver Application is granted, becomes final and is no longer subject to appellate litigation or appellate review. The parties may, by supplemental agreement, enumerate those provisions. 17. The parties agree that this Agreement shall be rendered binding only upon execution by all of the parties hereto. 18. The "Effective Date" of this Agreement shall be January 19,2006. The term of this Agreement commences upon the effective date and ends upon completion of the redevelopment provided for herein, unless otherwise stated. 19. Wherever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement, provided that the material purposes of this Agreement can be determined and effectuated. This severability provision shall not operate to impair, limit or affect any specific provisions of this Agreement that are expressly inter- dependent. 20. This Agreement shall be binding on the parties and their successors or assigns. The rights, benefits and detriments inuring to Developer under this Agreement shall be freely assignable at the sole election of Developer, and shall run with the Property. 21 This Agreement shall in all respects be construed in accordance with the laws of the State of Florida applicable to contracts made and to be performed wholly within the State of Florida. Venue for any litigation hereunder shall be in the Circuit Court of the Eleventh Judicial 12 Circuit in and for Miami-Dade County, Florida. 22. This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same Agreement. Delivery of an executed counterpart of a signature page to this Agreement by facsimile shall be effective as delivery of a manually executed counterpart of this Agreement. 23. This Agreement shall be deemed to have been jointly drafted by the parties, and in construing and interpreting this Agreement, no provision shall be construed and interpreted for or against any of the parties because such provision or any other provision of the Agreement as a whole is purportedly prepared or requested by such party. 24. In the event that the City Commission, in accordance with the City Moratorium Ordinance criteria, grants the Waiver Application, the parties hereto shall cooperate and work together to defend the action of the City Commission in the event of any challenge by any other person, firm or entity. Further, in such event, during the course of any such challenge to the City Commission decision, Developer and the Joining Parties shall take no action to further pursue the Litigation identified in Recitals paragraph (H) above, prior to the final adjudication of any such challenge, unless compelled to do so by court order. 25. (a) (b) Time is of the essence of this Agreement. Developer shall file the Waiver Application with City on or before Monday, January 23,2006. (c) City agrees to hold a quasi judicial hearing and reach a decision upon the Waiver Application no later than Midnight, Thursday, February 2, 2006, and to issue a written decision to be rendered no later than on Friday, February 3,2006. 13 STIPULATED AND AGREED BY: SHEF AORlT ARRAGON, LLLP a Florida limited liability limited partnership By: Print: Title: AVENTURA TARRAGON GP, LLC a Florida limited liability company By: Print: Title: AVENTURA TARRAGON LP, LLC a Florida limited liability company By: Print: Title: SHEF AOR BH, LLC a Florida limited liability company By: Print: Title: CITY OF A VENTURA, FLORIDA, a Florida municipal corporation By: Eric M. Soroka, City Manager Pursuant to Resolution No. 2006-_ Approved as to form and legal sufficiency for the use and reliance of the City of Aventura only: By: City Attorney 14 TARRAGON SOUTH DEVELOPMENT CORP. a Florida corporation By: Print: Title: PINNACLE COMMUNITIES, L.L.C. A New Jersey limited liability company By: Print: Title: Approved as to form and legal sufficiency: By: Attorneys for Developer F:/328.058/Linco\n Pointe Settlement DocumentsIFinal Version of Settlement Agreement 1.\ 8.06 15