Loading...
HomeMy WebLinkAboutExhibit 1EXHIBIT I STIPULATED SETTLEMENT AGREEMENT CASE NO.: ***Unknown: Court -Status Case No)) *** STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS DEPARTMENT OF COMMUNITY AFFAIRS, Petitioner, MIAMI RIVER MARINE GROUP, INC., Intervenor, V. DOAH Case No. 09- 0169GM CITY OF MIAMI, Respondent. STIPULATED SETTLEMENT AGREEMENT THIS STIPULATED SETTLEMENT AGREEMENT is entered into by and between the State of Florida, Department of Community Affairs and the City of Miami, a Florida Municipal Corporation (City) as a complete and final settlement of all claims between the Petitioner, Intervenor and Respondent raised in the above -styled proceeding. RECITALS WHEREAS, the State of Florida, Department of Community Affairs (DCA or Department), is the state land planning agency and has the authority to administer and enforce the Local Government Comprehensive Planning and Land Development Regulation Act, Chapter 163, Part II, Florida Statutes; and WHEREAS, the City is a local government with the duty to adopt comprehensive plan amendments that are "in compliance"; and WHEREAS, the Local Government adopted Comprehensive Plan Amendment (EAR based Plan Amendments) by Ordinance No. 13043 on November 13, 2008, which is sometimes known Miami 08-IER; and oil CASE NO.: ***Unknown: Court -Status Case No)) *** WHEREAS, the Department issued its Statement and Notice of Intent regarding the Amendments on January 6, 2009 and found the EAR Based Plan Amendments to be in compliance except as set forth below ; and WHEREAS, as set forth in the Statement of Intent, the Department contends that the following Amendments: Goal PA- 3; Objective PA- 3. 1, and Policies PA -3.1.1 to 3.1.9 ; Objective PA- 3.2 , and Policy PA- 3.2.1 ; Objective PA- 3.3 , and Policy PA- 3.3.1; Objective PA- 3.4, and Policies PA- 3.4.1 to 3.4.4 ; Policy LU -1.4.10 are not "in compliance" because it fails to insure the protection of recreational and commercial working waterfronts as required by Section 342.07, Florida Statutes ; as well as Chapter 163 II, Florida Statutes, the State Comprehensive Plan, Rule 9J-5, Florida Administrative Code, and the Strategic Regional Policy Plan for South Florida; and WHEREAS, pursuant to Section 163.3184(10), Florida Statutes, DCA has initiated the above -styled formal administrative proceeding challenging the Amendment; and WHEREAS, the "Miami River Marine Group" challenged the MCNP amendments and is an Intervenor in the challenge proceedings; and WHEREAS, the Local Government disputes the allegations of the Statement of Intent regarding the Amendment; and WHEREAS, the City conducted a formal mediation with DCA and the Intervenor on October 16, 2009; and WHEREAS, subsequently the Local Government made changes to the foregoing EAR based Plan Amendments requested by DCA; and WHEREAS, the City also conducted a Stakeholder meeting with the Intervenor on April 15, 2010; and WHEREAS, the Local Government has additionally made changes to the EAR Based Plan Amendments requested by the Intervenor and these changes were approved, in principle, by the City Commission on May 27, 2010 who directed they be transmitted to DCA; and 3 CASE NO.: ***Unknown: Court -Status Case No)) *** WHEREAS, the parties wish to avoid the expense, delay, and uncertainty of lengthy litigation and to resolve this proceeding under the terms set forth herein, and agree it is in their respective mutual best interests to do so; NOW, THEREFORE, in consideration of the mutual covenants and promises herein below set forth, and in consideration of the benefits to accrue to each of the parties, the receipt and sufficiency of which are hereby acknowledged, the parties hereby represent and agree as follows: GENERAL PROVISIONS 1. Definitions. As used in this agreement, the following words and phrases shall have the following meanings: a. Act: The Local Government Comprehensive Planning and Land Development Regulation Act, as codified in Part II, Chapter 163, Florida Statutes. b. Agreement: This stipulated settlement agreement. C. Comprehensive Plan Amendment or Plan Amendment: Comprehensive plan amendment Miami 08-lER, adopted by the City on November 13, 2008, as Ordinance No. 13043, as amended by subsequent requests of DCA and the Intervenor. d. DOAH: The Florida Division of Administrative Hearings. e. In compliance or into compliance: The meaning set forth in Section 163.3184(1)(b), Florida Statutes. f. Notice: The Notice of Intent issued by the Department to which was attached its statement of intent to find the plan amendment not in compliance. g. Petition: The petition for administrative hearing and relief filed by the Department in this case. I CASE NO.: ***Unknown: Court -Status Case No)) *** h. Remedial Action: A remedial plan amendment, submission of support document or other action described in the statement of intent or this agreement as an action which must be completed to bring the plan amendment into compliance. i. Remedial Plan Amendment: An amendment to the plan or support document, the need for which is identified in this agreement, including its exhibits, and which the local government must adopt to complete all remedial actions. Remedial plan amendments adopted pursuant to this Agreement must, in the opinion of the Department, be consistent with and substantially similar in concept and content to the ones identified in this Agreement or be otherwise acceptable to the Department. j. Statement of Intent: The statement of intent to find the Plan Amendment not in compliance issued by the Department in this case. k. Support Document: The studies, inventory maps, surveys, data, inventories, listings or analyses used to develop and support the Plan Amendment or Remedial Plan Amendment. 2. Department Powers. The Department is the state land planning agency and has the power and duty to administer and enforce the Act and to determine whether the Plan Amendment is in compliance. 3. Negotiation of Agreement. The Department issued its Notice and Statement of Intent to find the Plan Amendment not in compliance, and filed the Petition in this case to that effect. Subsequent to the filing of the Petition the parties conferred and agreed to resolve the issues in the Petition, Notice and Statement of Intent through this Agreement. It is the intent of this Agreement to resolve fully all issues between the parties in this proceeding. 4. Dismissal. If the Local Government completes the Remedial Actions required by this Agreement, the Department will issue a cumulative Notice of Intent addressing both the Remedial Plan Amendment and the initial Plan Amendment subject to these proceedings. The Department will file the cumulative Notice of Intent with the DOAH. The Department will also 5 CASE NO.: ***Unknown: Court -Status Case No)) *** file a request to relinquish jurisdiction to the Department for dismissal of this proceeding or for realignment of the parties, as appropriate under Section 163.3184(16)(f), Florida Statutes. 5. Description of Provisions not in Compliance and Remedial Actions; Legal Effect of Agreement. Exhibit A to this Agreement is a copy of the Statement of Intent, which identifies the provisions not in compliance. Exhibit B contains Remedial Actions needed for compliance. Exhibits A and B are incorporated in this Agreement by this reference. This Agreement constitutes a stipulation that if the Remedial Actions are accomplished, the Plan Amendment will be in compliance. 6 Remedial Actions to be Considered for Adoption. The Local Government agrees to consider for adoption by formal action of its governing body all Remedial Actions described in Exhibit B no later than the time period provided for in this Agreement. 7 Adoption or Approval of Remedial Plan Amendments. Within 60 days after execution of this Agreement by the parties, the Local Government shall consider for adoption all Remedial Actions or Plan Amendments and amendments to the Support Documents. This may be done at a single adoption hearing. Within 10 working days after adoption of the Remedial Plan Amendment, the Local Government shall transmit 3 copies of the amendment to the Department as provided in Rule 9J-11.0131(3), Florida Administrative Code. The Local Government also shall submit one copy to the regional planning agency and to any other unit of local or state government that has filed a written request with the governing body for a copy of the Remedial Plan Amendment and a copy to any party granted intervenor status in this proceeding. The Remedial Plan Amendment shall be transmitted to the Department along with a letter which describes the remedial action adopted for each part of the plan amended, including references to specific portions and pages. 8. Acknowledgment. All parties to this Agreement acknowledge that the "based upon" provisions in Section 163.3184(8), Florida Statutes, do not apply to the Remedial Plan Amendment. CI CASE NO.: ***Unknown: Court -Status Case No)) *** 9. Review of Remedial Plan Amendments and Notice of Intent. Within 30 days after receipt of the adopted Remedial Plan Amendments and Support Documents, the Department shall issue a Notice of Intent pursuant to Section 163.3184, Florida Statutes, for the adopted amendments in accordance with this Agreement. a. In Compliance: If the adopted Remedial Actions satisfy this Agreement, the Department shall issue a cumulative Notice of Intent addressing both the Plan Amendment and the Remedial Plan Amendment as being in compliance. The Department shall file this cumulative notice with DOAH and shall move to realign the parties or to have this proceeding dismissed, as may be appropriate. b. Not in Compliance: If the Remedial Actions do not satisfy this Agreement, the Department shall issue a Notice of Intent to find the Plan Amendment not in compliance and shall forward the notice to DOAH for consolidation with the pending proceeding. 10. Effect of Amendment. Adoption of any Remedial Plan Amendment shall not be counted toward the frequency restrictions imposed upon plan amendments pursuant to Section 163.3187(1), Florida Statutes. 11. Purpose of this Agreement; Not Establishing Precedent. The parties enter into this Agreement in a spirit of cooperation for the purpose of avoiding costly, lengthy and unnecessary litigation and in recognition of the desire for the speedy and reasonable resolution of disputes arising out of or related to the Plan Amendment. The acceptance of proposals for purposes of this Agreement is part of a negotiated agreement affecting many factual and legal issues and is not an endorsement of, and does not establish precedent for, the use of these proposals in any other circumstances or by any other local government. 12. Approval by GoverningBodyBody. This Agreement has been approved by the Local Government's governing body at a public hearing advertised at least 10 days prior to the hearing in a newspaper of general circulation in the manner prescribed for advertisements in Section CASE NO.: ***Unknown: Court -Status Case No)) *** 163.3184(15)(e), Florida Statutes. This Agreement has been executed by the appropriate officer, the City Manager, as provided in the Local Government's charter or other regulations. 13. Changes in Law. Nothing in this Agreement shall be construed to relieve either party from adhering to the law, and in the event of a change in any statute or administrative regulation inconsistent with this agreement, the statute or regulation shall take precedence and shall be deemed incorporated in this Agreement by reference. 14. Other Persons Unaffected. Nothing in this Agreement shall be deemed to affect the rights of any person not a party to this Agreement. This Agreement is not intended to benefit any third party. 15. Attorney Fees and Costs. Each party shall bear its own costs, including attorney fees, incurred in connection with the above -captioned case and this Agreement. 16. Effective Date. This Agreement shall become effective immediately upon execution by the Department and the Local Government. 17. Filing and Continuance. This Agreement shall be filed with DOAH by the Department after execution by the parties. Upon the filing of this Agreement, the administrative proceeding in this matter shall be stayed by the Administrative Law Judge in accordance with Section 163.3184(16)(b), Florida Statutes. 18. Retention of Right to Final Hearing. Both parties hereby retain the right to have a final hearing in this proceeding in the event of a breach of this Agreement, and nothing in this Agreement shall be deemed a waiver of such right. Any party to this Agreement may move to have this matter set for hearing if it becomes apparent that any other party whose action is required by this Agreement is not proceeding in good faith to take that action. 19. Construction of Agreement. All parties to this Agreement are deemed to have participated in its drafting. In the event of any ambiguity in the terms of this Agreement, the parties agree that such ambiguity shall be construed without regard to which of the parties drafted the provision in question. CASE NO.: ***Unknown: Court -Status Case No)) *** 20. Entire Agreement. This is the entire agreement between the parties and no verbal or written assurance or promise is effective or binding unless included in this document. 21. Governmental Discretion Unaffected. This Agreement is not intended to bind the Local Government in the exercise of governmental discretion which is exercisable in accordance with law only upon the giving of appropriate public notice and required public hearings. 22. Multiple Originals. This Agreement may be executed in any number of originals, all of which evidence one agreement, and only one of which need be produced for any purpose. 23. Captions. The captions inserted in this Agreement are for the purpose of convenience only and shall not be utilized to construe or interpret any provision of this Agreement. I CASE NO.: ***Unknown: Court -Status Case No)) *** In witness whereof, the parties hereto have caused this Agreement to be executed by their undersigned officials as duly authorized. DEPARTMENT OF COMMUNITY AFFAIRS Charles Gauthier, Director Division of Community Planning Date CITY OF MIAMI By: Carlos Migoya, City Manager Attest: Priscilla H. Thompson, CMC, City clerk Date INTERVENOR Miami River Marine Group, Inc. Approved as to form and legality: Assistant General Counsel Date Approved as to form and legality: Julie O. Bru, City Attorney Date By: President or Other Authorized Corporate Officer Date (Affix Corporate Seal) Attest: 10 Corporate Secretary CASE NO.: ***Unknown: Court -Status Case No)) *** 11