Miami-Dade Legislative Item
File Number: 132030
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File Number: 132030 File Type: Resolution Status: Amended
Version: 0 Reference: Control: Board of County Commissioners
File Name: BLOCK 45 & 56 SETTLEMENT OVERTOWN GATEWAY Introduced: 10/16/2013
Requester: NONE Cost: Final Action:
Agenda Date: 10/22/2013 Agenda Item Number: 11A3SUBSITUTE
Notes: SEE LN# 132508 FOR FINAL VERSION AS ADOPTED Title: RESOLUTION APPROVING OVERTOWN GATEWAY PARTNERS, LLC AND ALL ABOARD FLORIDA-STATIONS, LLC AS THE DEVELOPERS OF BLOCKS 45 AND 56, AND DETERMINING WHETHER TO ACCEPT OR REJECT PROPOSED VARIANCES AS TO THE DECLARATION OF RESTRICTIONS FOR SUCH BLOCKS PURSUANT TO THE SETTLEMENT AGREEMENT BETWEEN THE CITY OF MIAMI, THE SOUTHEAST OVERTOWN/PARK WEST COMMUNITY REDEVELOPMENT AGENCY AND MIAMI-DADE COUNTY(SEE ORIGINAL ITEM UNDER FILE NO. 131997)
Indexes: SETTLEMENT AGREEMENT
Sponsors: Audrey M. Edmonson, Prime Sponsor
  Barbara J. Jordan, Co-Sponsor
  Dennis C. Moss, Co-Sponsor
Sunset Provision: No Effective Date: Expiration Date:
Registered Lobbyist: None Listed


Legislative History

Acting Body Date Agenda Item Action Sent To Due Date Returned Pass/Fail

Board of County Commissioners 10/22/2013 11A3 SUBSITUTE Amended
REPORT: See Agenda Item 11A3 Amended; Legislative File No. 132508.

Office of the Chairperson 10/17/2013 Additions

County Attorney 10/16/2013 Assigned Debra Herman 9/17/2013

Legislative Text


TITLE
RESOLUTION APPROVING OVERTOWN GATEWAY PARTNERS, LLC AND ALL ABOARD FLORIDA-STATIONS, LLC AS THE DEVELOPERS OF BLOCKS 45 AND 56, AND DETERMINING WHETHER TO ACCEPT OR REJECT PROPOSED VARIANCES AS TO THE DECLARATION OF RESTRICTIONS FOR SUCH BLOCKS PURSUANT TO THE SETTLEMENT AGREEMENT BETWEEN THE CITY OF MIAMI, THE SOUTHEAST OVERTOWN/PARK WEST COMMUNITY REDEVELOPMENT AGENCY AND MIAMI-DADE COUNTY

BODY
WHEREAS, pursuant to Resolution No. R-294-13, the Board authorized settlement of the lawsuit between the City of Miami, the Southeast Overtown/Park West Community Redevelopment Agency (the “CRA”) and the County; and
WHEREAS, the City of Miami, the CRA and the County entered into the settlement agreement and recorded a Declaration of Restrictions against Blocks 45 and 56 in accordance therewith, which set forth requirements for development on such Blocks; and
WHEREAS, pursuant to the terms of the settlement agreement, the CRA was required to conduct a solicitation and to select a developer for development of Blocks 45 and 56 (the “Property”) in accordance with the provisions and restrictions set forth in a Declaration of Restrictions (the “Declaration”); and
WHEREAS, the CRA was required to provide notice of the selected Developer to the County, along with any proposed variances to the Declaration, and the Board would then have 45 days in which to approve or reject the Developer and to consider any proposed variances to the Declaration; and
WHEREAS, the CRA is required to enter into a Development Agreement with the proposed Developer within 90 days of the date of approval of the Developer by the County, or to terminate negotiations and issue a new solicitation; and
WHEREAS, the CRA submitted notice of the Developers and proposed variances to the County on September 17, 2013, which is attached as Exhibit A; and
WHEREAS, the CRA submitted a clarification as to proposed variance 7 on September 26, 2013, attached as Exhibit B; and
>>WHEREAS, the CRA submitted a proposed amended variance request on October 15, 2013, attached as Exhibit C, which superceded and replaced the request and clarification attached as Exhibits A and B (referred to herein as amended variance requests 1 through 7); and<<1
WHEREAS, the Board has considered the proposed Developers, >>Overtown Gateway Partners, LLC and <>, << [[ and ]]clarified by Exhibit B>>, and superceded by Exhibit C<<; and
WHEREAS, this Board has considered the Mayor’s Memorandum which is attached hereto and incorporated herein,
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF MIAMI-DADE COUNTY, FLORIDA, that:
Section 1. This Board ratifies and adopts those matters set forth in the foregoing recitals.
Section 2. This Board approves the developers selected by the CRA, Overtown Gateway Partners, LLC and All Aboard Florida-Stations, LLC in accordance with the settlement agreement and the CRA’s recommendation.
Section 3. >>This Board approves amended variance request number 1 in full, “Default and Reversion,” which provides that default<<[[This Board approves variance number 4, wherein “Overtown Gateway proposes providing 60 residential units in compliance with the provisions of Section 3 of the Declaration with all residential units in excess of 60 residential units being market rate units. The Residential Component shall be constructed on Block 45”.Section 4. This Board approves variance number 7 which provides “Default ]]with respect to Block 45 under the Declaration shall not constitute a default with respect to Block 56 and default with respect to Block 56 under the Declaration shall not constitute a default with respect to Block 45>>. This provision shall apply only after the development agreements are entered into by both developers and the CRA.
Section 4. This Board approves amended variance request number 2 in full, “Project Payments,” providing for a lump sum cash payment to the County of $5,000,000.00 upon the Closing Date, including $2,500,000.00 to be<<[[ under the Declaration,”]] provided >>by each developer, in lieu of annual project payments, which payment shall be used for projects <>support Overtown redevelopment efforts and shall be held in a County account or separated to be utilized solely for that purpose; and additionally, providing for annual donations of $250,000.00 to a community benefits program to be established within the Southeast Overtown/Park West Community Redevelopment Area, the composition and structure of which shall be formalized by future Board action. Additionally, the County shall act as the fiduciary for holding and disbursing funds contributed to such program.
Section 5. This Board approves amended variance request number 3 in full, “Project Components,” which provides that a minimum of 75,000 square feet of <<[[set forth in Exhibit B, the Residential Component is allocated to Parcel 45 and ]]the Retail Component >>shall be constructed on Block 56, a minimum of 75,000 square feet of the Retail Component shall be constructed on Block 45, and the construction of the Residential Component on Block 45<<[[is allocated equally between Blocks 45 and 56]].
Section >>6. This Board approves amended variance request number 4 in full, “Residential Restrictions,” which provides that residential units in excess of the 60 required affordable housing units on Block 45, currently required by the Declaration, can be market rate units<<[[5. This Board rejects all other variance requests, including numbers 1, 2, 3, 5, 6, and the CRA Requested Clarification]].
>>Section 7. This Board approves amended variance request number 5 in full, “Completion Date,” regarding revisions to timeframes during which certain acts must be performed.
Section 8.<<[[Section 6. This Board delegates the authority to the Mayor or the Mayor’s designee to issue estoppel certificates or similar instruments affirming compliance with the Declaration, in connection with the Settlement Agreement and construction on Blocks 45 and 56, as deemed necessary and appropriate in the sole and absolute discretion of the Mayor or the Mayor’s designee.
Section 7.]] This Board >>disapproves of amended variance request number 6 in full, “Indemnification Agreement,” proposing modification of the indemnification agreement requirements. However, this Board < >>Section 9. This Board approves amended variance request number 7 in full, “Parking,” requiring the developers to provide 300 parking spaces in excess of code requirements.
Section 10. This Board approves amended variance request number 8 in part, “Development Agreements,” as follows. This Board approves amended variance request 8(a) that the CRA shall negotiate two separate development agreements, one with All Aboard for Block 56 and one with Overtown Gateway for Block 45. This Board disapproves amended variance request 8(b) that “failure to execute a Development Agreement with respect to one block shall only require the CRA to terminate negotiations with that Developer and issue a new Developer Opportunity for that block.” This Board requires both Development Agreements to be fully executed within the required timeframes.
Section 11. This Board delegates the authority to the Mayor or the Mayor’s designee to issue estoppel certificates or similar instruments affirming compliance with the Declaration, in connection with the Settlement Agreement and construction on Blocks 45 and 56, as deemed necessary and appropriate in the sole and absolute discretion of the Mayor or the Mayor’s designee.
Section 12. Any other request for variance not specifically granted herein should be deemed to be denied, including but not limited to each of the variance requests set forth in the September 17, 2013 letter attached hereto as Exhibit A, each of which is hereby denied. The remaining terms of the Declaration remain in full force, including but not limited to all reverter provisions related to the County.
Section 13. The approval of such variance requests are conditioned upon the amendment and recording in the public records of an Amended Declaration setting forth all of these amendments, approved by the County and with full and binding approval by the CRA Board. Additionally, the approval of the variance requests herein are specifically conditioned upon the CRA Board approving all of the variance requests approved by the County herein. To the extent the CRA Board does not approve each and every variance request approved by the County herein, all of which must be set forth in an Amended Declaration, then all variance requests shall be deemed denied.
Section 14. <
1 The differences between the substitute and the original item are indicated as follows: Words stricken through and/or [[double bracketed]] shall be deleted, words underscored and/or >>double arrowed<< are added.

HEADER
Date:

To: Honorable Chairwoman Rebeca Sosa
and Members, Board of County Commissioners

From: Carlos A. Gimenez
Mayor

Subject: Selection of Developer for the Development of Blocks 45 and 56 and Consideration of Variance Requests


OTHER
This substitute differs from the original because a revised letter with amended requested variances to the Declaration of Restrictions on Blocks 45 and 56 was sent to the County on October 15, 2013. As requested by the Southeast Overtown/Park West Community Redevelopment Agency, the revised letter replaces the original letters dated September 17 and 26, 2013. The letters of September 13 and 26, 2013 were the basis for the recommendations under the original item.

..Recommendation
Based on the recommendation of the Southeast Overtown/Park West Community Redevelopment Agency (CRA), it is recommended that the Board of County Commissioners (Board) approve this item, which does the following:
• Approves of the CRA’s selection of Overtown Gateway Partners, LLC and All Aboard Florida-Stations, LLC for the development of Blocks 45 and 56 (Blocks), respectively;
• Considers variances to the Declaration of Restrictive Covenants (see Declaration of Restrictive Covenants as Attachment 1 to the memorandum); and
• Approves variance request one through five, seven, and a portion of eight (8a) and disapproves all of the other proposed variances set forth in the October 15, 2013 letter attached as Exhibit C to the resolution. Such amended request for variance letter replaces and supercedes the letters from September 17, 2013 (Exhibit A to the resolution) and September 26, 2013 (Exhibit B to the resolution).

According to the Settlement Agreement between the County, the City of Miami, and the CRA, the County must approve or reject the proposed developer for Blocks 45 and 56 and any variances to the Declaration of Restrictions which has been recorded pursuant to the terms of the Settlement Agreement. The Settlement Agreement mandates approval or rejection, but does not provide for revision or amendment of any of the proposed variances.

It is also important to note that in order to record the Amendment to the Declaration of Restrictions encompassing the requested variances, these amended variances must be formally approved by the CRA Board given that these differ in part from the variances approved at their September 12, 2013 meeting. Additionally, the approval of the variance requests in this item are specifically conditioned upon the CRA Board approving all of the variance requests approved by the County. To the extent the CRA Board does not approve each and every variance request approved by the County, all of which must be set forth in an Amended Declaration, then all variance requests shall be deemed denied.

Should the Board approve the developers, the CRA will negotiate development agreements for the Blocks as required by the Settlement Agreement. Any variances approved by the Board through this action must be included as part of the Declaration of Restrictions. The Board does not approve the development agreement between the CRA and the developer.
Scope
The Blocks to be developed are in Commission District 3, represented by Commissioner Audrey M. Edmonson.
Fiscal Impact/Funding Source
Selecting the developers for the two blocks in Overtown does not have an immediate fiscal impact on the County.

However, as noted in the attached Declaration of Restrictions previously approved by the Board through Resolution R-294-13, the selected developer(s) will make separate Project Payments to the County and CRA for Blocks 45 and 56 that are either: $122,000 per year for five years and a three percent increase thereafter (minimum payment), or 2.5 percent of Gross Rent if it exceeds the minimum payment. One of the proposed variances to the Declaration of Restrictions deals with replacing the Project Payments with a one-time up-front payment. As detailed further below, the Administration recommends approval of the variance proposed by the developers.

Track Record/Monitor
The County’s Internal Services Department will monitor the progress of the development, the recording of any additional documents, and all other aspects of the settlement agreement.

BODY
On April 16, 2013, the Board adopted Resolution R-294-13 authorizing the County, the City, and the CRA to settle an existing lawsuit regarding Blocks 45 and 56. The Settlement Agreement was entered into by the parties, and as part of the Settlement Agreement, a Declaration of Restrictions was recorded against the Blocks, which restricted the manner in which they could be developed, and provided parameters for such development. The Settlement Agreement requires the CRA to conduct a solicitation for a developer of Blocks 45 and 56, and to provide formal notice of the proposed developer to the County for approval or rejection within 45 days of the notice. Failure to approve or reject such developer is deemed as an approval. Additionally, in the event that the proposed developer submits any requests for variances from the Declaration of Restrictions, such proposed variances must likewise be detailed in the notice. The County must approve or reject such variances within 45 days of the notice, or they are likewise deemed approved. On September 17, 2013, the CRA provided Notice to the County of the proposed developers, Overtown Gateway Partners, LLC and All Aboard Florida-Stations, LLC, as well as a list of seven proposed variances and one request for clarification. The developers and proposed variances were approved by the CRA on September 12, 2013, pursuant to Resolution CRA-R-13-0054 (see attached Attachment 2 to the cover memorandum). The CRA submitted a clarification as to proposed variance 7 on September 26, 2013, attached as Exhibit B to the resolution. On October 15, 2013, the CRA submitted a proposed amended variance request (Exhibit C to the resolution), which superseded and replaced the request and clarification attached as Exhibits A and B to the resolution.

Additionally, the attached resolution authorizes the County Mayor or Mayor’s designee be delegated the authority to issue an estoppel letter should it be required in the sole and absolute discretion of the Mayor or the Mayor’s designee, as such letter is sometimes requested by a lender. Further, the attached resolution authorizes the County Mayor or Mayor’s designee be delegated the authority, to accept unlimited indemnification from the City and the CRA in lieu of the required indemnification from the developers, if requested by the CRA, and in the sole and absolute discretion of the Mayor of the Mayor’s designee.

Staff recommends approval of the two proposed developers, Overtown Gateway Partners, LLC and All Aboard Florida-Stations, LLC.

A summary of the variances to the Declaration of Restrictions requested by the developers and approved by the CRA, as further detailed in Exhibit C, as well as staff’s recommendations regarding such variance requests, are as follows:

1. The developers are requesting that a default on Block 45 not constitute a default on Block 56, and a default on Block 56 not constitute a default on Block 45.

Staff is recommending approval of variance number 1 proposed by the developers.


2. In lieu of project payments described in the fiscal impact section, developers propose to make each a $2.5 million one-time payment at the time of closing to the County, a $1.375 million one-time payment at the time of closing to the CRA, and an annual $125,000 payment for 10 years commencing at the time of closing to a community benefits program (Program) to be established within the CRA. Such Program will be administered by a committee appointed by community stakeholders from the Southeast Overtown/Park West community redevelopment area and the County will act as the fiduciary agent for holding and disbursing funds from the Program.

Staff recommends approval of variance number 2 proposed by the developers as the combined figures to the County, CRA and community are estimated to be greater than or equal to what was stipulated in the Declaration of Restrictions, and such payment would be made up front.


3. The developers are requesting that the minimum of 150,000 square feet for the Retail Component as defined in the Declaration of Restrictions for Blocks 45 and 56 be split to allow for 75,000 square feet of retail on Block 45 and 75,000 square feet of retail on Block 56, with the residential component to be constructed on Block 45.

Staff is recommending approval of variance number 3 proposed by the developers. Approval of this variance does not affect the minimum development of the Blocks as originally proposed.


4. Overtown Gateway is requesting that all units over the 60 affordable housing units contemplated in the Declaration of Restrictions will be market rate units.

The Declaration of Restrictions requires that a minimum of 60 affordable housing units (Residential Component) be constructed, of which ten percent will be available for families earning 30 percent or less of the area median income (AMI), 70 percent will be made available for families earning between 30 and 80 percent of AMI, and the remaining 20 percent will be made available for families earning between 80 and 140 percent of AMI. The CRA will be responsible for development of an additional 100 affordable housing units in the area.
Staff recommends approving this variance as it comports with the intent of the Declaration of Restrictions, and maintains the minimum of 60 affordable housing units as set forth in the Settlement Agreement.

5. The Declaration of Restrictions requires the Developer to obtain the Approvals by May 15, 2015 and to commence construction of the vertical improvements of the Residential Component and the Retail Component by May 15, 2016. The Residential Component must be completed within 24 months after commencement of vertical construction for the Residential Component and complete the Retail Component within 24 months after commencement of vertical construction of the Retail Component.

Overtown Gateway is requesting that if the extension of the time to obtain the Approvals is not used, or used entirely, the unused time allotment can be utilized to extend the Residential Completion Date and the Retail Completion Date. Overtown Gateway is requesting that if the construction of the Retail and Residential Components commence prior to the May 15, 2016 date, the number of days between the commencement date and the May 15, 2016 milestone be added to the 24 month construction timeframe. Because Overtown Gateway is requesting to build the Retail and Residential Components as one structure, the Completion Dates for both shall be the same, and may be extended by six months by a payment of $250,000.

All Aboard is requesting that if the extension of the time to obtain the Approvals is not used, or used entirely, the unused time allotment can be utilized to extend the Retail Completion Date. All Aboard is requesting that if the construction of the Retail Component commences prior to the May 15, 2016 date, the number of days between the commencement date and the May 15, 2016 milestone date be added to the 24 month construction timeframe. Additionally, as provided for in the Declaration of Restrictions, All Aboard is requesting that the extension provision for the Retail Component may be extended by six months with a payment of $250,000, but that extension will be limited to a total of 6 months.

Staff recommends approval of this variance. By approving the variance, the developers have the flexibility of providing additional time for construction without moving the completion date of May 15, 2018 if construction starts prior to the May 15, 2016 requirement, and without moving the date for commencement of the vertical construction, or any dates of reversion to the County. Should the developers need additional time, they may purchase a total of two, six-month extensions for $250,000 each. Should the developer purchase an extension for the Approvals, and only use three months, they may use the remaining three months for the construction period.


6. Overtown Gateway and All Aboard Florida are requesting that Section 7f of the agreement requiring indemnification by the developers be modified to allow a risk management solution by All Aboard and Overtown Gateway, acceptable to the County Mayor, in lieu of requiring Board approval.

Staff recommends denial of this variance. The Declaration of Restrictions provides for the indemnification of the County. However, this resolution delegates to the Mayor or the Mayor’s designee, based on their discretion, to accept a full and complete unlimited indemnification from the City and the CRA in substantially the form attached as Exhibit J-1 to the Settlement Agreement in lieu of the indemnification from the Developer.


7. Overtown Gateway and All Aboard agree to provide 150 parking spaces on Block 45 and 150 parking spaces on Block 56, for a total of 300 spaces, in addition to the zoning-required parking for the development projects.

Staff recommends approval of this variance.


8. A variance is requested to allow the CRA to negotiate two separate Development Agreements, one with Overtown Gateway for Block 45 and one with All Aboard for Block 56 (Variance 8a). The CRA is also requesting that if negotiations are terminated with one developer that a new Developer Opportunity be issued for that Block (Variance 8b).

Staff recommends approval of the variance request that two separate development agreements shall be negotiated with the CRA, one with All Aboard for Block 56 and one with Overtown Gateway for Block 45.

Staff does not recommend the that “failure to execute a Development Agreement with respect to one block shall only require the CRA to terminate negotiations with that Developer and issue a new Developer Opportunity for that block.” Staff recommends that both Development Agreements be fully executed within the required timeframes.

Attachments


_______________________________
Edward Marquez
Deputy Mayor





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