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HomeMy WebLinkAboutR-2016-151 Authorizes a Contribution Agreement & Any Pertaining Documents & to Take all Actions to Implement Terms; Reference Dania Live 1748, LLC for a Sewer Impact Fee Credit Related to Dania Pointe RESOLUTION NO.2016-151 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DANIA BEACH, FLORIDA, AUTHORIZING THE PROPER CITY OFFICIALS TO EXECUTE A CONTRIBUTION AGREEMENT AND ANY ADDITIONAL DOCUMENTS PERTAINING TO THE AGREEMENT AND TO TAKE ALL ACTIONS NECESSARY TO IMPLEMENT THE TERMS AND CONDITIONS OF THE AGREEMENT, A COPY OF WHICH IS ATTACHED, AND MADE A PART OF AND INCORPORATED INTO THIS RESOLUTION BY THIS REFERENCE, WITH DANIA LIVE 1748, LLC FOR A SEWER IMPACT FEE CREDIT RELATED TO THE DEVELOPMENT OF DANIA POINTE; PROVIDING FOR CONFLICTS; FURTHER, PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, on May 24, 2016, pursuant to Ordinance No. 2016-008, the City Commission approved the rezoning and related Dania Pointe Development Design Guidelines (the "DDG") for a mixed use development containing approximately 103 acres of land (the "Property") in accordance with a Master Development Plan (the "MDP"), all as more particularly set forth in the Dania Pointe DDG(collectively,the "Dania Pointe Project"); and WHEREAS, the City of Dania Beach, Florida(the "City") and Dania Live 1748, LLC (the "Developer" entered into a Development Agreement dated October 25, 2016 and approved by Resolution No. 2016-150, wherein Developer has agreed to construct certain off-site improvements pursuant and subject to the terms and conditions therein (the "Development Agreement"); and WHEREAS,the Developer has agreed to construct a new off-site sanitary force-main line in conformance with the relevant provisions of the Development Agreement (the "Sewer Line") provided, among other things, that the cost of construction and installation of the Sewer Line may be credited against City-imposed sewer impact fees, arising from development of the Dania Pointe Project; and WHEREAS, Chapter 27, ARTICLE IV "Water And Sewer System Impact Fees," Section 27-212 "Developer Contribution Credit" of the City Code of Ordinances (the "City Code"), allows for impact fee credits to be granted by the City Commission for the construction and installation of sewer system facilities or improvements made as identified within the Contribution Agreement attached hereto as Exhibit"A" and incorporated herein; and WHEREAS, the City Commission finds that the proposed construction and installation of the Sewer Line is in conformity with the City's contemplated improvement and additions to the regional sewer system; and WHEREAS, the City Commission finds that the proposed Sewer Line, viewed in conjunction with other existing or proposed plans, will not adversely impact the cash flow or liquidity of the sewer system impact fee reserve account in such a way to frustrate or interfere with other planned or ongoing growth-necessitated capital improvements and additions to the regional sewer system; and WHEREAS, the City Commission finds that the proposed Sewer Line, viewed in conjunction with other existing or proposed plans, will not create a detrimental imbalance between the treatment and transmission capabilities of the regional sewer system; and WHEREAS,the proposed plan is consistent with the public interest; and WHEREAS, the proposed time schedule for completion of the Sewer Line is consistent with the City's most recently adopted five-year capital improvement program for the regional sewer system; and WHEREAS, in accordance with Section 27.212 of the City Code, the Developer is entitled to a credit against City-imposed sewer impact fees for the construction and installation of the Sewer Line associated with the development of the Dania Pointe Project. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF DANIA BEACH, FLORIDA: Section 1. That the foregoing "Whereas" clauses are ratified and confirmed to be true and correct, and they are made a part of and are incorporated into this Resolution by reference. Section 2. That the City Commission approves the execution of the Contribution Agreement, a copy of which is attached as Exhibit"A", and made a part of and incorporated into this Resolution by this reference, authorizing a credit against City-imposed sewer impact fees for the construction and installation of the Sewer Line associated with the development of the Dania Pointe Project. Section 3. That the appropriate City officials including the Mayor, City Manager and City Attorney are authorized to execute the Contribution Agreement and any additional 2 RESOLUTION#2016-151 documents pertaining to the Contribution Agreement and to take all action necessary to implement the terms and conditions of the Contribution Agreement. Section 4. That all resolutions or parts of resolutions in conflict with this Resolution are repealed to the extent of such conflict. Section 5. That this Resolution shall be in force and take effect immediately upon its passage and adoption. Section 6. That the City Clerk shall record this Resolution in the official records of Broward County within fourteen (14) days after the parties have executed the Contribution Agreement. PASSED AND ADOPTED on October 25, 2016. ATTEST: AS LOUISE STILSON, CMC CO A. SALVINO, SR. CITY CLERK AYOR APPROVED AS TO F AND CORRECTNESS: THOMIAS J. ANSBRO CITY ATTORNEY 3 RESOLUTION#2016-151 CONTRIBUTION AGREEMENT BETWEEN THE CITY OF DANIA BEACH, FLORIDA AND DANIA LIVE 1748,LLC This Contribution Agreement ("Contribution Agreement") is made as of this day of October, 2016 by and between DANIA LIVE 1748, LLC, a Delaware limited liability company ("Developer") and the CITY OF DANIA BEACH, a municipal corporation and political subdivision of the State of Florida("City") as follows: WHEREAS, Developer (owning approximately 102 acres of land) and Discount Auto Parts, LLC, a Virginia limited liability company (owning approximately 1 acre of land), together own that certain property located in City, Broward County, Florida, more particularly described in Exhibit A attached hereto and made a part hereof, containing approximately 103 acres of land (the "Property"); and WHEREAS, on May 24, 2016, pursuant to Ordinance No. 2016-008, the City Commission approved the Dania Pointe Development Design Guidelines (the "DDG") for a mixed use development on the Property, including a Master Development Plan (the "MDP"), all as more particularly set forth in the Dania Pointe DDG(collectively,the "Project"); and WHEREAS, City and Developer have entered into that certain development agreement dated October , 2016, and approved by Resolution No. 2016-150, wherein Developer has agreed to construct certain off-site improvements pursuant and subject to the terms and conditions therein (the "Development Agreement"); and WHEREAS, Section 27-212 of the City Code of Ordinances (the "City Code"), provides that a developer contribution credit against City-imposed sewer connection fees and impact fees may be granted in exchange for the construction and installation of sewer system facilities or improvements and additions to them; and WHEREAS, pursuant to Section 27-212 of the City Code, credits against connection fees and impact fees are to be issued pursuant to a contribution agreement between City and the developer party; and WHEREAS, Developer has agreed to construct a new off-site sanitary force-main line in conformance with the relevant provisions of the Development Agreement (the "Sewer Line"), provided, among other things,that the cost of construction and installation of the Sewer Line (the "Sewer Installation Costs") shall be credited against City-imposed sewer connection and impact fees arising from development of the Project subject to the terms and conditions as more particularly set forth herein; and WHEREAS, the proposed construction and installation of the Sewer Line is in conformity with the City's contemplated improvement and additions to the regional sewer system; and WHEREAS, the Sewer Line is consistent with both the public interest and with the City's Comprehensive Plan; and WHEREAS, the City and Developer agree and acknowledge this Contribution Agreement shall not be construed or characterized as a development agreement under F.S. §§ 163.3220 through 163.3243 (the "Florida Local Government Development Agreement Act"); and WHEREAS, in accordance with Section 27-212 of the City Code, the Developer is entitled to a credit against City-imposed sewer connection fees and impact fees for the construction and installation of the Sewer Line associated with the development of the Project. NOW, THEREFORE, in consideration of mutual covenants herein contained, the legal sufficiency of which is hereby acknowledged,the parties agree as follows: 1. The foregoing recitations contained in the "Whereas Clauses" are true and correct and are incorporated into and made a part of this Agreement as specially set forth herein. 2. Developer, or its successors or assigns pursuant to Section 6 below, hereby agrees to install, or cause to be installed, the Sewer Line and to pay all Sewer Installation Costs. In consideration of such payment and the timely performance of Developer's obligations (as provided in the Development Agreement), City hereby agrees to apply all Sewer Installation Costs against any City-imposed sewer impact fees, which include connection fees as defined in the City Code, arising from the development of the Project, subject to the standards of valuation and limitations set forth in Section 27-212(b) of the City Code. 3. Unless otherwise agreed between Developer and City pursuant to an amendment to this Contribution Agreement or another cost sharing agreement, City and Developer agree that the total amount of sewer impact fee credits granted shall not exceed the total amount of City-imposed sewer impact fees due for the Project. City and Developer further agree that Sewer Installation Costs which exceeds the total amount of City-imposed sewer impact fees due for the Project shall not be eligible or qualify as a future reimbursement or sewer impact fee credit to Developer. 4. This Contribution Agreement shall be constructed and governed in accordance with the laws of the State of Florida. All parties to this Contribution Agreement have participated fully in the negotiation and preparation hereof and accordingly; this Contribution Agreement shall not be more strictly construed against any one of the parties hereto. All parties agree particularly that this Contribution Agreement is bound by the terms of Chapter 27, ARTICLE IV "Water and Sewer Impact Fees" of the City Code (the "Impact Fee Ordinance") and other applicable ordinances. Any and all applicable terms of those Ordinances shall be considered incorporated herein by reference. If there is any inconsistency found between this Contribution Agreement and such Ordinances or applicable law, those Ordinances or law shall prevail and be applicable; provided, however, that if such an inconsistency is found, City and Developer shall, in good faith and with reasonable diligence, modify this Contribution Agreement to comply with such Ordinances or applicable law in a manner which best reflects the intent of this Contribution Agreement. 5. No modification, amendment, or release of the terms or conditions contained herein shall be effective unless contained in a written document executed by City and Developer. In the event state or federal laws are enacted after the execution of this Contribution 2 Agreement, which are applicable to and preclude in whole or in part the parties' compliance with the terms or conditions of this Contribution Agreement, then in such event this Contribution Agreement shall be modified or revoked as is necessary to comply with such laws, in a manner which best reflects the intent of this Contribution Agreement. 6. The rights and obligations under this Contribution Agreement shall inure to Developer's successors and assigns; provided, however, that in the event that Developer conveys all or substantially all of the Property to a third party who expressly assumes the obligations of Developer hereunder, then Developer shall deliver not less than thirty (30) days' advance written notice of such conveyance and assumption to City. 7. It is understood and agreed that this Contribution Agreement incorporates and includes all prior negotiations, agreements or understandings applicable to the matters contained herein and the parties agree that there are no commitments, agreements or understandings concerning the subject matter of this Contribution Agreement that are not contained in this document, except for the relevant provisions of the Development Agreement concerning the Sewer Line and Sewer Installation Costs as previously referenced herein. Accordingly, it is agreed that no deviation from the terms hereof shall be predicated upon any prior representations or agreements, whether oral or written. 8. Any notice, demand or other communication required or permitted under the terms of this Agreement shall be in writing, made by overnight delivery services or certified mail, return receipt requested, and shall be deemed to be received by the addressee one (1) business day after sending by overnight delivery services, and three (3) business days after mailing, if sent by certified mail. Notices shall be addressed as provided below: (1) If to City: Robert Baldwin City Manager City of Dania Beach 100 W. Dania Beach Boulevard Dania Beach, FL 33004 With a copy to: Thomas J. Ansbro, Esq. City Attorney 100 W. Dania Beach Boulevard Dania Beach, FL 33004 (2) If to the Owner: Dania Live 1748, LLC 3333 New Hyde Park Road Suite 100 New Hyde Park,NY 11042 With a copy to: 3 Dennis Mele, Esq. Greenspoon Marder, P.A. 200 E. Broward Boulevard Suite 1800 Fort Lauderdale, FL 33301 And a copy to: Gary J. Bazydlo, Esq. Regional Counsel Kimco Realty Corporation 6060 Piedmont Row Drive South, Suite 200 Charlotte,NC 28287 9. The parties agree that this Contribution Agreement may be executed in counterparts, and that collectively the counterparts shall be considered an original agreement and shall be deemed legally sufficient and binding upon the parties. 10. The Developer agrees to provide for and retain adequate records and supporting documentation, which concern the Sewer Line and reflect the Sewer Installation Costs. This information shall be available to the City, or its duly authorized agent or representative, for audit, inspection or copying, for a minimum of five (5) years from the termination of this Contribution Agreement. 11. The parties agree to comply with the City's risk management guidelines which may be established by the City's Risk Manager from time to time, including but not limited to, insurance and indemnification acceptable to the City, provided that such guidelines are reasonable and otherwise reasonably conform with risk management guidelines for municipalities in South Florida. 12. The Developer acknowledges that the failure of the Contribution Agreement to address any permit, condition, term or restriction shall not relieve either the Developer, or their successors, of the necessity of complying with any law, ordinance, rule or regulation governing permitting requirements, conditions, terms or restrictions. 13. An annual review and audit of performance under this Contribution Agreement shall be performed by the City to determine whether or not there has been demonstrated good faith compliance with the terms of this Contribution Agreement and to report the credit applied toward payment of City-imposed sewer impact fees and the balance of available unused credit. If the City Commission, in good faith, finds, on the basis of competent substantial evidence reasonably related to the Sewer Line, that there has been a failure to comply with the terms of this Contribution Agreement, the Contribution Agreement may be revoked or modified by the City. 14. In the event of a dispute under this Contribution Agreement, either party may file an action for injunctive relief in the Circuit Court of Broward County, Florida, to enforce the terms of this Contribution Agreement, said remedy being cumulative with any and all other remedies available to the parties for the enforcement of this Contribution Agreement. 4 15. This Contribution Agreement shall be recorded by the City in the Official Records of Broward County, Florida, within fourteen (14) days of execution of this Contribution Agreement by the parties. The Developer shall pay all costs of recording this Contribution Agreement. [SIGNATURES ON FOLLOWING PAGE] 5 IN WITNESS WHEREOF,the parties have made this Amendment on the date first above written. CITY: CITY OF DANIA BEACH By: Marco A. Salvino, Sr., Mayor Dated: ATTEST: Louise Stilson, CMC, City Clerk APPROVED: Thomas J.Ansbro,City Attorney STATE OF FLORIDA ) : SS COUNTY OF BROWARD ) The foregoing instrument was acknowledged before me this day of October, 2016, by Marco A. Salvino, Sr., as Mayor of the City of Dania Beach, Florida, a municipal corporation, on behalf of the municipal corporation, who is personally known to me. NOTARY PUBLIC: (SEAL) My Commission expires: Print Name: 6 STATE OF FLORIDA ) : SS COUNTY OF BROWARD ) The foregoing instrument was acknowledged before me this day of October, 2016, by Louise Stilson., as City Clerk of the City of Dania Beach, Florida, a municipal corporation, on behalf of the municipal corporation, who is personally known to me. NOTARY PUBLIC: (SEAL) My Commission expires: Print Name: 7 Signed, sealed and delivered in the DEVELOPER: presence of: DANIA LIVE 1748,LLC,a Delaware limited liability company (Signature) By: Print Name , its Dated: (Signature) Print Name ACKNOWLEDGEMENT: STATE OF FLORIDA ) ) SS COUNTY OF ) The foregoing instrument was acknowledged before me this day of , 2016, by , as of DANIA LIVE 1748, LLC, a Florida limited liability company, who is personally known to me or produced as identification. NOTARY PUBLIC: (SEAL) My Commission expires: Print Name: 8 EXHIBIT"A" (the"Property") 9 DANIA POINTE SURVEY BOUNDARY & PLAT LEGAL DESCRIPTION: PARCEL OF LAND BEING A PORTION OF SECTION 33,TOWNSHIP 50 SOUTH, RANGE 42 EAST, BROWARD COUNTY, FLORIDA;SAID PARCEL CONTAINING ALL OF OR PORTIONS OF THE FOLLOWING DESCRIBED PLATS AND ROAD RIGHT-OF-WAYS: ALL OF BLOCK 7 AND A PORTION OF BLOCK 8,TIGERTAIL GROVE RESUBDIVISION, RECORDED IN PLAT BOOK 30, PAGE 20;A PORTION OF TRACT"A","RE-AMENDED PLAT OF HOLLYWOOD PALMS", RECORDED IN PLAT BOOK 36, PAGE 46;A PORTION OF TRACT"A", "THE GADDIS PLAT", RECORDED IN PLAT BOOK 112, PAGE 7;A PORTION OF PARCEL"A", DUKE&DUKE SUBDIVISION, RECORDED IN PLAT BOOK 124, PAGE 48;ALL OF PARCEL"A", DANIA OFFICE PARK, RECORDED IN PLAT BOOK 130, PAGE 29; ALL OF PARCEL"A",COMMERCE CENTER OF DANIA, RECORDED IN PLAT BOOK 135, PAGE 44;ALL OF PARCEL"A",SAN-MAR PLAT, RECORDED IN PLAT BOOK 142, PAGE 18;ALL OF PARCEL"A", "DANIA BEACH AIR& PORT COMMERCE CENTER", RECORDED IN PLAT BOOK 177, PAGES 81 THRU 83;A PORTION OF TIGERTAIL BOULEVARD (N.W. 1ST STREET) RIGHT-OF-WAY, LYING EAST OF THE WEST LINE OF THE SOUTHEAST ONE-QUARTER (S.E. 1/4)OF SAID SECTION 33 AND WEST OF THE WEST RIGHT-OF- WAY LINE OF BRYAN ROAD;A PORTION OF DANIA BEACH BOULEVARD RIGHT-OF-WAY, LYING EAST OF THE EAST RIGHT-OF-WAY LINE OF INTERSTATE 95 (STATE ROAD 9)AND WEST OF THE WEST RIGHT-OF- WAY LINE OF BRYAN ROAD;ALL OF THE ABOVE REFERENCED PLATS BEING RECORDED IN THE PUBLIC RECORDS OF BROWARD COUNTY, FLORIDA;SAID PARCEL AND BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCE ATTHE SOUTHWEST CORNER OF THE SOUTHEAST ONE-QUARTER(S.E. 1/4)OF SAID SECTION 33; THENCE N.01°41'47"W.,ALONG THE WEST LINE OF SAID SOUTHEAST ONE-QUARTER(S.E. 1/4),A DISTANCE OF 668.72 FEET,TO THE MOST NORTHERLY SOUTHWEST CORNER OF SAID PARCEL"A",SAN- MAR PLAT AND THE POINT OF BEGINNING OF THE HEREIN DESCRIBED PARCEL OF LAND; THENCE S.87°32'08"W.ALONG THE SOUTH LINE OF PARCEL"A", DUKE&DUKE SUBDIVISION ACCORDING TO THE PLATTHEREOF AS RECORDED IN PLAT BOOK 124, PAGE 48 OF THE PUBLIC RECORDS OF BROWARD COUNTY FLORIDA,A DISTANCE OF 49.21 FEET; THENCE N.12°26'03"E.,A DISTANCE OF 201.54 FEET,TO A POINT ON THE EAST LINE OF PARCEL'A",SAID DUKE & DUKE SUBDIVISION; THENCE N.01°41'47"W.,ALONG SAID EAST LINE AND THE WEST LINE OF PARCEL"A",OF SAID SAN-MAR PLAT,A DISTANCE OF 231.30 FEET; THENCE S.88°18'13"W.,A DISTANCE OF 513.30 FEET,TO A POINT ON THE EAST RIGHT-OF-WAY LINE OF INTERSTATE 95 (S.R. 9),SAID POINT ALSO BEING ON THE ARC OF A NON-TANGENT CURVE CONCAVE TO THE WEST,A RADIAL LINE OF SAID CURVE THROUGH SAID POINT HAVING A BEARING OF N.89°43'55"E. THENCE S.01°32'39"E.,ALONG THE EAST LINE OF SAID TRACT"A",A DISTANCE OF 10.00 FEET,TO THE SOUTHEAST CORNER OF SAID TRACT"A"; THENCE S.87°34'11"W.,ALONG THE SOUTH LINE OF SAID TRACT"A",A DISTANCE OF 2.85 FEET(THE FOLLOWING THREE COURSE BEING COINCIDENT WITH THE NORTH RIGHT-OF-WAY LINE OF STIRLING ROAD (S.R. 848)AS DEDICATED BY OFFICIAL RECORD BOOK 22110, PAGE 521 OF SAID PUBIC RECORDS); THENCE N.78°56'04"W.,A DISTANCE OF 51.42 FEET, THENCE S.87°34'11"W.,A DISTANCE OF 217.00 FEET; THENCE 5.02°25'49"E.,A DISTANCE OF 12.00 FEET,TO A POINT ON THE SOUTH LINE OF SAID TRACT"A"; THENCE S.87°34'11"W.,ALONG THE SOUTH LINE OF SAID TRACT"A",AND THE WESTERLY EXTENSION THEREOF,A DISTANCE OF 269.97 FEET; THENCE S.01°32'39"E.,A DISTANCE OF 2.00 FEET,TO A POINT ON A LINE 53.00 FEET NORTH OF AND PARALLEL WITH THE SOUTH LINE OF THE SAID SOUTHEAST ONE-QUARTER (S.E.1/4); THENCE 5.87°34'11"W.,ALONG SAID PARALLEL LINE A DISTANCE OF 30.14 FEET,TO A POINT ON THE SOUTHERLY EXTENSION OF THE EAST LINE OF PARCEL"A", "STIRLING ROAD PLAZA", RECORDED IN PLAT BOOK 178, PAGE 112,OF SAID PUBLIC RECORDS; THENCE N.01°38'44"W.,ALONG SAID SOUTHERLY EXTENSION,ALONG SAID EAST LINE AND ALONG THE EAST LINE OF PARCEL"A", HILTON GARDENS AT STIRLING ROAD, RECORDED IN PLAT BOOK 171, PAGE 14, OF SAID PUBLIC RECORDS,A DISTANCE OF 615.92 FEET,TO THE NORTHEAST CORNER OF SAID PARCEL"A"; THENCE 5.87°32'08"W.,ALONG THE NORTH LINE OF SAID PARCEL"A",A DISTANCE OF 335.53 FEET;TO THE POINT OF BEGINNING; SAID LAND SITUATE WITHIN THE CITY OF DANIA BEACH, BROWARD COUNTY, FLORIDA,CONTAINING 102.03 ACRES, (4,444,235 SQUARE FEET), MORE OR LESS.