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HomeMy WebLinkAboutSubmittal-Exhibit-Mediated Action PlanIN THE CITY COMMISSION OF THE CITY OF MIAMI, FLORIDA RESOLUTION NO. 14-00098, MARCH 27, 2014 AGENDA AGREEMENT REACHED AT MEDIATION MDM DEVELOPMENT LLC and MDM RETAIL, LTD. (collectively, "MDM") have appealed to the City of Miami Commission ("City Commission") Reolution.y No. 14-00098, No. 14-00098a, and No. 14-00098b adopted by the Miami Historic and Environmental Preservation Board ("I-IEP Board"). MDM and the Miami City Planning Director (the "Planning Director"), agree to recommend the following with respect to MDM's pending appeal before the City of Miami Commission identified as r 311 No. 14-00098 on the City Commission's March 27, 2014 agenda (the "Agreement"): 1. The parties agree that under City of Miami Ordinance §§ 23-4 (c) (7) and 23- 6.2(e), the City Commission "may affirm, modify, or reverse the [City of Miami Historical and Environmental Preservation ("HEP")}• board's decision." In reviewing this matter on appeal, Ordinance §§ 23-4 (c) (7) and 23-6.2(e) also provide that the City Commission's review is de novo and it may consider "new evidence or materials." 2. The parties agree that they will jointly recommend that the City Commission approve this Agreement and the Mediated Action Plan, which is attached as an Exhibit to this Agreement, as a modification of the HEP Board's decisions. The parties agree that the Agreement was approved at mediation by the Planning Director and MDM after consultation with numerous interested parties, experts, and organizations, which were invited to and participated in the Mediation of this matter. In addition to the undersigned parties, in attendance during the mediation were: Robert S. Carr, Arva. Moore Parks, Richard J. Heisenbottle, John 14- ODog S_ &4 r i4 .!_ i bi L Medi tded Action Plan Submitted into the public record in connection with Item PZ.11 on 03/27/2014. Todd B. Hannon City Clerk Shubin, Esq., Gregory W. Bush, Ph.D., Becky Roper Matkov, Brian Alonso, Ramiro A. Ortiz, Jeff Ransom, Kathleen Kauffinan, Robert F. Bendus, Scott A. Silver, Esq., Phillip M. Hudson, III, Esq., Jorge Zamanillo, Tucker Gibbs, Esq., Ryan Franklin, and Carlos A. Rey, The organizations represented included MDM, the City of Miami, Miami -Dade County, the Florida Department of State, Division of Historical Resources, Dade Heritage Trust, HistoryMiami, the Urban Environment League of Greater Miami, Florida Trust for Historical Preservation, and Archaeological & Historical Conservancy, Inc. There was overwhelming support in favor of the Mediated Action Plan from the distinguished individuals and organizations in attendance during the mediation. 3. The Mediated Action Plan represents the best efforts of the City and MDIVI, together with numerous interested parties, experts, and organizations, to preserve and showcase the history of the METsquare site located at 300 Southeast 3rd Street, Miami, Florida and to educate the public about that history. ,4. The parties agree that, upon approval of this Agreement and the Mediated Action Plan by the City Commission, MDM will waive any legal objections or defenses it may have with respect to this appeal. 5. The parties agree that this Agreement and the Mediated Action Plan may be modified by written agreement of the parties, or upon a showing of an unanticipated, significant change of circumstances warranting revision of the Agreement in a way suitably tailored to the change of circumstances, except that any major modification, as defined by City of Miami Ordinances, of the Mediated Action Plan requires approval of the City Commission. 6. All periods stated in days refer to calendar days. Unless a different start date is specified, count time begins the day after any City Commission approval of the Mediated Action 2 Submitted into the public record in connection with Item PZ.11 on 03/27/2014. Todd B. Hannon Citv Clerk Plan. Time will otherwise be computed in the manner set forth in Florida Rule of Judicial Administration 2.514. 7. This Agreement may be executed in multiple counterparts, each of which shall constitute an original, and all of which shall constitute a single Agreement. 8. This Agreement shall be construed and enforced in accordance with the laws of the State of Florida, without giving effect to the conflict of laws principles of Florida law. 9. Prior to any party seeking administrative or court enforcement against any other party with respect to this Agreement or the Mediated Action Plan, the parties shall attempt to informally mediate a dispute in a non -binding mediation. Mediation shall take place within ten (10) days of a written request made by either party to the other party. This requirement to mediate prior to seeking adminisLiative or court enforcement shall not prevent a party from seeking immediate court enforcement if it clearly appears from specific facts shown by affidavit that immediate and irreparable injury, loss, or damage will result to the aggrieved party before the aggrieved party and the other party can conduct mediation as contemplated in this paragraph. 10. The parties agree that, on this appeal, MDM will advocate reversing, vacating, and modifying, consistent with the Mediated Action Plan, HEP Board Resolutions No. 14-00098, No. 14-00098a, and No. 14-00098b, and dissolving any interim protective period to allow processing of permits. Reversing, vacating, and modifying, consistent with the Mediated Action Plan, HEP Board Resolutions No. 14-00098 and dissolving any interim protective period to allow processing ofpennits is a condition subsequent to this Agreement and the Mediated Action Plan, and neither the Agreement nor the Mediated Action Plan shall have any force or effect absent the satisfaction of all of those conditions. 3 Submitted into the public record in connection with Item PZ.11 on 03/27/2014. Todd B. Hannon City Clerk Dated: LUIS PULENTA MDM Development LLC MDM Retail, Ltd. 300 S. Biscayne Boulevard, Suite 201 Miami, Florida 33131 Tel: 305-372-1081 luis.pulenta@mdmusa.com ao 0///lr' °'sv Dated: 3 EUGENE E. S, ESQ. Attorney for MDM Development LLC and MDM Retail, Ltd. Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A. 150 West Flagler Street, Suite 2200 Miami, Florida 33130 Tel: 305-789-3200 estearns@steamsweaver.com CIS(O GAI.CIA City Planning Director 444 S.W. 2nd Avenue Miami, Florida 33130 Tel: 305-416-1200 fcia@miarnigov.com VI C RIA MENDEZ, CITY A`}rTORNEY Attorney for the City of Miami 444 S.W. 2nd Avenue Miami, Florida 33130 Tel: 305-416-1800 vmendez@miamigov,com 4 Dated: Dated: 3/2//iV LA. ORT As Mediator Gunster, Yoakley & Stewart, P.A. 2 South Biscayne Boulevard Miami, FL 33131 Tel: 305-376-6043 acortinas@gunster.com Dated: 73/2. 0/y Submitted into the public record in connection with Item PZ.11 on 03/27/2014. Todd B. Hannon Citv Clerk EXHIBIT IN THE CITY COMMISSION OF THE CITY OF MIAMI, FLORIDA RESOLUTION NO, 14-00098, MARCH 27, 2014 AGENDA MEDIATED ACTION PLAN MDM DEVELOPMENT LLC and MDM RETAIL, LTD. (collectively, "MDM") and the CITY OF MIAMI ("City") agree to this Mediated Action Plan in order to preserve, interpret, showcase, and educate the public about the history of the proposed METsquare site ("METsquare") upon the following terms and conditions subject to the approval of the City Commission: 1. • The parties agree that MDM will preserve, interpret, and showcase in their original and historical location the following archaeological areas of the METsquare site associated with the Tequestas: (a) The Northeast Corner Circle, which is also known as the Royal Palm Circle, marked as "1" on the attached Diagrarn A, as well as (b) The Southwest Corner Circle, marked as "2" on the attached Diagram A. 2. With respect to the Northeast Corner Circle, the parties agree: (a) The Northeast Corner Circle will be enclosed in a gallery building as shown in the attached Diagram B that will showcase the site and provide interpretive information regarding this site. (b) The Northeast Corner Circle will be protected and displayed by transparent glass -type flooring. (c) In order to maximize the square footage of the gallery and allow for preservation and exhibitions of the Royal Palm Hotel foundations, the City will process administrative approval for alternate setbacks necessary to preserve and showcase the Northeast Corner Circle as. required by Paragraph 1(a) and Paragraphs 2(a-b). . 5 Submitted into the public record in connection with Item PZ.11 on 03/27/2014. Todd B. Hannon City Clerk (d) As a condition precedent to the preservation and display of the Northeast Corner Circle in its entirety as outlined in Paragraph 1(a) and Paragraphs 2(a-b), and after best efforts by MDM, the City and all other necessary government authorities must permit the portion of the METsquare building currently planned to cover the Northeast Corner Circle to encroach on adjacent rights of way within sixty (60) days as necessary to expand the building and preserve and showcase the Northeast Corner Circle as required by Paragraph 1(a) and Paragraphs 2(a-b). The sixty (60) day period may be extended if the delay does not affect MDM's critical path of construction but in no event shall be extended more than ninety (90) additional days. These time periods shall be calculated with the count starting the day after any City Commission approval of the Mediated Action Plan and otherwise be computed in the manner set forth in Florida Rule of Judicial Administration 2.514. Absent satisfaction of, this condition, MDM will preserve any portions of the Northeast Corner Circle on private property that remain after construction and display them in place. (e) MDM agrees to fund the design and development of the gallery building, and will fund associated utility and maintenance expenses. MDM will enter into a lease with HistoryMiami for a nominal yearly rent to display interpretive exhibits within the gallery building, such lease to include reasonable terms and conditions governing HistoryMiami's occupancy, such as insurance and access to bathrooms. 3. With respect to the Southwest Corner Circle, the parties agree that: (a) MDM will wall off the Southwest Corner Ci_rcIe with transparent glass - type material that will allow historical. preservation, display, and public viewing of this archaeological site associated with the Tequestas. The Southwest Corner Circle will be housed in. a two-story glass building as shown in the attached Diagram C that will allow pedestrians outside the • building to be able to view the Southwest Corner Circle site through the first -floor glass walls; MDM will attempt to limit the building material supporting the transparent glass -type material so as to reduce obstruction of the view; the first floor, measured from the bottom of the first floor to the bottom of the second floor, will be at least sixteen feet high. Patrons of the ground -level retail space will be able to view the Southwest Comer Circle site from inside the retail space, but a glass wall will separate the retail space. from the Southwest Corner Circle site. The Southwest Corner Circle site will not be covered. (b) (c) (d) The part of the first floor enclosing the Southwest Corner Circle will not be used for retail space of any kind. The second floor of the Southwest Corner Circle building may be used for retail. 6 Submitted into the public record in connection with Item PZ.11 on 03/27/2014. Todd B. Hannon City Clerk The City will process an administrative approval for alternate setbacks necessary to preserve and showcase the Southwest Corner Circle site as . required by Paragraph 1(b) and Paragraphs 3(a-d). As a condition precedent to the preservation and display of the Southwest • Corner Circle in its entirety as outlined in Paragraph 1(b) and Paragraphs 3(a-d), and after best efforts by MDM, the City and all other necessary government authorities must permit the portion of the METsquare building currently planned to cover the Southwest Corner Circle to encroach on adjacent rights of way within sixty (60) days as necessary to expand the building and preserve and showcase the Southwest Corner Circle as required by Paragraph 1(b) and Paragraphs 3(a-d). The sixty (60) day period may be extended if the delay does not affect MDM's critical path of construction but in no event shall be extended more than ninety (90) additional days. These time periods shall be calculated with the count starting the day after any City Commission approval of the Mediated Action Plan and otherwise be computed in the manner set forth in Florida Rule of Judicial Administration 2.514. Absent satisfaction of this condition, MDM will preserve any portions of the Southwest Comer Circle on private property that remain after construction and display them in place. 4. With respect to the portion of the Royal Palm Hotel foundation abutting the Northeast Circle: (a) The portion of the Royal Palm Hotel foundation abutting the Northeast Circle will be enclosed in the gallery building attached as Diagram B that will showcase it and provide interpretive information regarding this site to the extent possible. (b) (c) The portion of the Royal Palm Hotel foundation abutting the Northeast Circle will be protected and displayed by transparent glass -type flooring. The City will process an administrative approval for alternate setbacks necessary to preserve and showcase the portion of the Royal Palm Hotel foundation abutting the Northeast Circle as required by Paragraphs 4(a-b). (d) As a condition precedent to the preservation and display of the portion of the Royal Palm Hotel foundation abutting the Northeast Corner Circle in its entirety as outlined in to Paragraphs 4(a-b), and after best efforts by MDM, the City and all other necessary government authorities must permit the portion of the METsquare building currently planned to cover the Northeast Comer Circle to encroach on adjacent rights of way within sixty (60) days as necessary to expand the building and preserve and showcase the Northeast Corner Circle as 'required by Paragraphs 4(a-b). The sixty (60) day period may be extended if the delay does not affect 7 Submitted into the public record in connection with Item P2.11 on 03/27/2014. Todd B. Hannon City Clerk MDM's critical path of construction but in no event shall be extended more than ninety (90) additional days. These time periods shall be calculated with the count starting the day after any City Commission approval of the Mediated Action Plan and otherwise be computed in the manner set forth in Florida Rule of Judicial Administration 2.514. Absent satisfaction of this condition, MDM will preserve any portion of the Royal Patin Hotel foundation abutting the Northeast Corner Circle on private property that remains after construction and display them in place. 5. The parties agree that MDM will preserve the steps of the former and historic Royal Palm Hotel, move them to the plaza, provide interpretive information, and showcase them for public viewing. 6. The parties agree that MDM will preserve, interpret, and showcase a Fort Dallas - era well, which was discovered on the METsquare site, in its original and historical location and maintain it in compliance with federal and state laws and regulations. MDM agrees to cover the Fort Dallas -era well with transparent glass -type flooring so as to allow historical preservation of this feature and also allow the general public to view the Fort Dallas -era well during reasonable business hours. It is contemplated that the Fort Dallas -era well will be showcased in a public area of the first -floor retail area of METsquare. 7. MDM agrees that it will arrange to illuminate any display of the Northeast Comer Circle, the Southwest Corner Circle, the Fort Dallas -era well, the Royal Palm Hotel's foundation, and the steps of the historic Royal Palm Hotel sites during evening hours and provide proper interpretive signage. The parties agree that that the building containing the Northeast Comer Circle will be in addition to and adjacent to the plaza area described in Paragraph 8 below. 8. MDM agrees to consult with a HistoryMiami and Dade Heritage Trust joint committee in connection with the presentation in the plaza and interpretive exhibits. MDM will employ qualified historians to write a comprehensive history of the north bank of the Miami River and provide content for an interpretive signage plan. MDM will employ a qualified 8 Submitted into the public record in connection with Item PZ.11 on 03/27/2014. Todd B. Hannon City Clerk engineering firm to complete the three-dimensional laser mapping of METsquare. MDM will employ a qualified archeological firm to fully document and catalogue all artifacts and to interpret the data from the excavation at METsquare and to prepare a final report summarizing its findings. In addition to exhibitry, MDM will fund the creation of a scale model of the Royal Palm Hotel and an audio visual interpretive film of the historical METsquare site. The plaza area will be as defined in the attached Diagram D. MDM will employ a qualified expert to design the historical exhibits, the archeological exhibits, and any other educational materials presented. • Exhibits will include an interactive three-dimensional map of the site, a full exhibit of the history of the mouth of the Miami River, including findings from adjacent sites and interpreting the Granada site and the Miami. Circle site. Pursuant to HEP Board Resolution No. 2004-48, the fmal plans for the interpretive elements of the plazashall be brought back to the HEP Board for approval. 9. The parties agree that members of the public can view for free the exhibits and features referenced in Paragraphs 1-10. Any copyrighted or otherwise privately owned educational materials may be available at a charge. 10. MDM will employ a qualified archaeological firm and qualified engineering firm to plot and mark the historic shore of the Miami River. MDM will mark and illustrate that shoreline in the accessible tenant flooring and public spaces at METsquare, in a manner consistent with the flooring type, and provide appropriate, interpretive signage. 11, MDM will not object to a qualified archaeological firm excavating and exploring the portions of Royal Palm Circle B and Southwest Corner Circle B on City property. MDM will provide up to $10,000 for the reasonable costs for a qualified archaeological firm to excavate and explore the portions of those sites, so long as such excavation and exploration is 9 Submitted into the public record in connection with Item PZ.11 on 03/27/2014. Todd B. Hannon City Clerk completed in sixty (60) days. 12. The existing certificate of appropriateness approved by HEPB 2002-68, as modified by this Mediated Action Plan, shall satisfy the requirements of Chapter 23 for archaeological discoveries as of this date. All other conditions of all prior approvals by the City, resolutions by the HEP Board, or actions by the HEP Board for the Met Square site that are not inconsistent with this Mediated Action Plan shall remain in full force and effect. The Planning Director will take action to process the necessary administrative approvals to conform previous development approvals to the Mediated Action Plan within sixty (60) days, which action shall reflect the contingency that that the encroachments referenced in Paragraphs 2(d), 3(f), and 4(d) may or may not proceed. 13. All terms of this Mediated Action Plan shall be subject to compliance with the Florida Building Code and any applicable fire and life safety code. MDM shall use best efforts to seek approval under these codes, but such efforts shall not require MDM to seek any variances from the Florida Building Code and the applicable fire and life safety code. In the event that approval cannot be obtained, MDM may proceed with an alternative design to resolve the technical noncompliance with the Codes subject to Planning Director approval within seven (7) days. 14. The HEP Board is scheduled to consider the preliminary designation of the site on April 1, 2014. If the HEP Board at that meeting decides the issues of both the preliminary and final designation at that meeting, MDM agrees at that meeting to stipulate to the designation of the site so long as the consideration of any preliminary or final designation does not in anyway delay, interfere with, or otherwise affect the dissolution of the interim protective period or the development of METsquare in accordance with the previously issued certificates of 10 Submitted into the public record in connection with Item PZ.11 on 03/27/2014. Todd B. Hannon City Clerk appropriateness, as modified by the Mediated Action Plan. The consideration of any preliminary or final designation shall not in any way delay, interfere with, or otherwise affect the dissolution of the interim protective period or the development of METsquare in accordance with the previously issued certificates of appropriateness, as modified by the Mediated Action Plan. Regardless of any preliminary or final designation of any portion of the site, no further certificate of appropriateness will be required to develop the METsquare project in accordance with Warrant No. 13-0013 an.d the existing certificate of appropriateness as modified by this Mediated Action Plan. MDM will not oppose National Register of Historic places nomination and designation and National Historic Landmark nomination and designation so long as they do not in any way delay, interfere with, or otherwise affect the dissolution of the interim protective period or the development of METsquare in accordance with the previously issued certificates of appropriateness, as modified by the Mediated Action Plan. 15. The parties agree that MDM will make reasonable efforts to allow for a crawlspace below the portions of the first floor of the building that can be made accessible, consistent with current development plans, based on the gap between the bedrock and beams and other foundational elements. Any such crawlspace will be non-public and available only to professional archaeologists, historians, and maintenance workers who sign a liability waiver, and archaeologists and historians will only be able to enter to perform further research at the 'METsquare site. As a condition precedent to this Paragraph 15, the crawlspace must be lawful and the City and any other necessary government authorities must approve it and MDM will employ its best efforts to obtain such approval. If any crawlspace plans are not authorized, MDM agrees to consult with architect Richard Heisenbottle. After consultation, if the crawlspace plans are not authorized, those portions will be rendered moot under this Paragraph. 11 Submitted into the public record in connection with Item PZ.11 on 03/27/2014. Todd B. Hannon City Clerk 16. MDM will protect the center circle, to the extent possible and to the extent consistent with its construction plans without modifying the design of the building described in Diagram A, by placing fill in between the slab and the bedrock before laying the slab. 17. The parties agree that MDM will make reasonable efforts to rename METsquare in such a way as to honor the historical significance of the site with the understanding that the site may nevertheless include the name "METsquare" and that MDM agrees only to make reasonable efforts in any such renaming. MDM will ask the public for suggestions for the name as part of this process. 18. The City and the undersigned acknowledge the significant contributions made by MDM to the archaeological and historical discoveries on the METsquare site. 19. This Mediated Action Plan and an obligation to use reasonable efforts to maintain the exhibits and features referenced in Paragraphs 1-10 shall constitute a covenant running with the land, and shall be binding on all successors and assigns. The initial term of the covenant shall be 30 years, which shall be automatically renewed for successive 10 year periods unless written notice of the intent to terminate is made by both parties no later than 180 days prior to the end of a term. The Mediated Action Plan shall be recorded as a covenant running with the land with the understanding that the organizations listed in Paragraph 2 of the Agreement Reached at Mediation shall have standing to enforce the covenants in the event the City fails to enforce the Mediated Action Plan one -hundred twenty (120) days after written notice to the City Attorney's Office, 20. The City and MDM agree that human remains discovered and re -interred, as well any to be discovered and to be re -interred, shall be protected in perpetuity in the pre -approved designated area and in a manner consistent with the Native American Protection and Repatriation 12 Submitted into the public record in connection with Item PZ.11 on 03/27/2014. Todd B. Hannon City Clerk Act. 21. The agreements reached in this Mediated Action Plan represent the parties' best efforts to preserve, educate, and showcase the history of the site being developed. The preservation and exhibition of these archaeological and historical sites will be for the eternal public benefit of the history of Miami, its citizens, and its visitors. LUIS PULENTA MDM Development LLC MDM Retail, Ltd. 300 S. Biscayne Boulevard, Suite 201 Miami, Florida 33131 Tel: 305-372-1081 luis.pulenta@mdmusa. com Dated: D. e // Dated: EUGENE E. S S, ESQ. )--6//y Attorney for MDM Development LLC and MDM Retail, Ltd. Stearns Weaver Miller Weissler Alhadef & Sitterson, P.A. 150 West Flagler Street, Suite 2200 Miami, Florida 33130 Tel: 305-789-3200 estearns@steamsweaver.com 4RANCISCb GARCIA City PIan/ling Director 444 S.W. 2nd Avenue Miami, Florida 33130 Tel: 305-416-1200 fgarcia@niamigov. corn 13 Dated: '-7� `''/> Submitted into the public record in connection with Item PZ.11 on 03/27/2014. Todd B. Hannon Citv Clerk VICTOR]] NDEZ, CITY ATTORNEY Attorney for the City of Miami 444 S.W. 2nd Avenue Miami, Florida 33130 Tel: 305-416-1800 vmendez@mianzigov.com 14 Dated: 3/2-Oh Dated: AN As i 1ediator Gunster, Yoakley & Stewart, P.A. 2 South Biscayne Boulevard Miami, FL 33131 Tel: 305-376-6043 • acortinas a gunster.cone Submitted into the public record in connection with Item PZ.11 on 03/27/2014. Todd B. Hannon Citv Clerk Diagram A METsqdare B-15 Submitted into the public record in connection with item PZ.11on 03/27/2014. Todd B.Hannon [itvC|erk NIC, iOI$ AJOSCII wtpm Wo e . row: The parties initialed a diagram at the end of the mediation, and each party has a copy. The Diagrams above and below are intended to capture that agreement, and in the event of any inconsistencies the version initialed at the mediation will control. Regardless of how the above diagram might be interpreted, MDM will preserve and display the entire Northeast Corner Circle, including covering the entire circle with transparent glass -type flooring, if it receives the approval of any necessary setbacks and encroachments. If it does not receive such setbacks and encroachments, it will preserve and display as much as possible. B-16 Submitted into the public record in connection with Item PZ.11 on 03/27/2014. Todd B. Hannon Citv Clerk Diagram B K NICHOLS BROSCH WORST WOVE squo B'17 Submitted into the public record in connection with Item PZ.11on 03/27/3014. Todd B.Hannon OtvC|erk NICHOLS RkOSCH WORST WOLFE .ti, :m.. VIETqua B-18 Submitted into the public record in connection with Item PZ.11 on 03/27/2014. Todd B. Hannon City Clerk Diagram C NICHOLS BR ETsquare SouthWest circle V V VNICH©LS ,RO CH MAST WOLF •N..>vs..;, METsquare B-19 Submitted into the public record in connection with Item PZ.11 on 03/27/2014. Todd B. Hannon City Clerk U V NICHOW BROSCN WURST WOIFE 1ETsquare Although Diagram C depicts floor -to -ceiling transparent glass -type material on the interior, retail space intended for a restaurant, the Mediated Action Plan does not require that material to extend from floor to ceiling and it may not. There may be a lower ceiling treatment in the restaurant, but such treatment shall not interfere with the view from the inside or outside. V'V141CHOL' tutrasf.,'.H WU CN.PF:.t...� I:sq ua re B-20 Submitted into the public record in connection with Item PZ.11 on 03/27/2014. Todd B. Hannon City Clerk Diagram D ICFIQ[5 B METsl re. B-21 Submitted into the public record in connection with Item PZ.11 on 03/27/2014. Todd B. Hannon Citv Clerk