CBO Agreement
COMMUNITY BENEFITS PROVISION FOR
TIER 1 DEVELOPMENT PROJECTS
(Fisher Body Plant 21)
THIS COMMUNITY BENEFITS PROVISION (“Provision”) is entered into as of its Effective Date, as hereinafter defined, by and between the City of Detroit (“CITY”), a Michigan municipal corporation acting through its Planning and Development Department, and Fisher Lofts 21, LLC (“DEVELOPER”), a Michigan limited liability company with an office at 300 Riverfront Drive, Suite. 22B, Detroit, MI 48226. The CITY and the DEVELOPER may each be referred to herein as a “Party” or collectively as the “Parties” to this Provision, as applicable.
RECITALS
WHEREAS, DEVELOPER is undertaking the development of an approximately 4.7 acre property located at 6051 Hastings Street, Detroit, MI 48202 bounded by Piquette Avenue to the north, Hastings Street to the east, Harper Avenue to the south and St. Antoine Street to the west. The developer will preserve and redevelop the existing structure into (1) a mixed use, 435 unit apartment complex with 38,000 square feet of retail space, (2) outdoor and indoor residential amenities, (3) 139 interior and 646 adjacent surface parking spaces (collectively known as the “Project”).
WHEREAS, under City of Detroit Ordinance No. 2021-04 (“Ordinance”), codified in Chapter 12, Article VIII of the Detroit City Code (“Code”), effective as of December 8, 2021, certain development projects referred to therein as “Tier 1 Development Projects” are subject to certain community engagement procedures as set forth in the Ordinance (as in existence as of the date hereof, the “CBO Process”) to determine the outstanding issues related to the Project and the best means of mitigating the concerns of the community pertaining directly to the development of the Project.
WHEREAS, because the Project is expected to incur an investment of at least $75 million and to involve the abatement of more than $1 million in city taxes, the Project qualifies as a ‘Tier 1 Project’ under the Ordinance and thus is subject to the CBO Process.
WHEREAS, the Project was reviewed through a CBO Process by a Neighborhood Advisory Council (“NAC”). The NAC is comprised of residents eighteen years or older residing in the Project Impact Area as defined by the director of the City of Detroit Planning and Development Department.
WHEREAS, The Project Impact Area is bound by portions of West Grand Boulevard, East Grand Boulevard and Holbrook Street to the north, Interstate 75 (“I-75) to the east, Ferry Street to the south and portions of Beaubien Street and Cass Avenue to the west.
WHEREAS, the CITY has prepared a Community Benefits Report (“Report”) regarding the Project, all in accordance with Section 12-8-3 of the Code.
NOW THEREFORE, the CITY and DEVELOPER agree as follows:
Section 1: Addressing Community Impacts. The DEVELOPER understands that through the community engagement process set forth in the Ordinance, certain concerns have been raised by the Neighborhood Advisory Council regarding the Project’s anticipated impact on the community, all of which are itemized in the Report. The DEVELOPER acknowledges these concerns by agreeing to the commitments set forth in the attached Exhibit A, which is incorporated herein by reference. The DEVELOPER further agrees that all above-referenced actions cumulatively bear an essential nexus with and are proportional to the type and magnitude of the impacts to the community that the NAC has identified, and that the DEVELOPER has acknowledged.
Section 2: Continued Community Engagement. DEVELOPER has actively engaged the community for input and will continue to do so throughout the development of the Project. The DEVELOPER acknowledges and understands that pursuant to Section 12-8-3(f)(3) of the Code, the CITY will facilitate at least one (1) meeting annually between the DEVELOPER and the NAC. The CITY will facilitate, and the DEVELOPER must attend, such meetings on an annual basis for a period of two (2) years following the Effective Date of this Provision. The purpose of such meetings will be to discuss anticipated or actual impacts of the Project on the community and to coordinate the implementation of the DEVELOPER’s efforts to address such impacts, among other topics that the CITY may determine.
Section 3: Compliance Reports. The DEVELOPER must submit to the CITY annual compliance reports that summarize the DEVELOPER’s progress on and compliance with the obligations set forth on Exhibit A and the other community engagement obligations set forth herein.
Section 4: Meetings. Upon request by either Party, the Parties will meet at their mutual convenience, whether in person or by video conference, telephone, or other convenient means, to review any aspect of this Provision and each Party’s rights and obligations hereunder.
Section 5: Recordkeeping and Reporting. Each Party will maintain information pertinent to its activities under this Provision for at least two (2) years following the expiration or earlier termination of this Provision, but in no case for less time than may be required to maintain compliance with Applicable Laws.
Section 6: Indemnification. The DEVELOPER will indemnify, defend, and hold the CITY harmless against and from any and all liabilities, obligations, damages, penalties, claims, costs, charges, losses and expenses (including, without limitation, reasonable fees and expenses for attorneys, expert witnesses and other consultants) that may be imposed upon, incurred by, or asserted against the CITY or its departments, officers, employees, or agents by reason of (a) any grossly negligent act, error, or omission caused by the DEVELOPER, (b) any failure by the Developer to perform its obligations under this Provision, or (c) any injury to the person or property of an employee of the CITY where such injury arises out of the Developer’s performance under this Provision.
Section 7: Compliance with Laws. Each Party acknowledges that it is individually responsible for maintaining compliance in all respects with all applicable federal, state, and local laws, rules, regulations, and orders having the binding effect of law (collectively “Applicable Laws”). Neither Party will be responsible for ensuring the other Party’s compliance with Applicable Laws at any time, unless so required under Applicable Laws.
Section 8: Non-Discrimination. The DEVELOPER will, in addressing community impacts as set forth in Section 1 herein, or in performing its activities set forth herein, refrain from refusing, restricting, withholding, or denying any accommodations, services, privileges, advantages or facilities or otherwise discriminating, whether directly or indirectly, on the basis of race, color, ethnicity, national origin, religious beliefs or practices, age, disability, pregnancy, marital status, parental status, military status, employment or educational status, gender, sex, sexual orientation, gender identity or expression, or any other protected or designated classification, in accordance with Chapter 27 of the Detroit City Code and other Applicable Laws.
Section 9: Community Reporting. The Parties acknowledge and understand that pursuant to Section 12-8-3(f)(4) of the Code, members of the community may report to the NAC allegations of the DEVELOPER’s failure to comply with this Provision. Community members can submit such reports to the CITY by personal delivery with receipt obtained or by registered or certified first-class mail with return receipt requested at the following address:
City of Detroit, Planning & Development Department
2 Woodward Avenue, Suite 808
Detroit, MI 48226
Attention: Director
The CITY will forward all such reports from community members to the NAC for the Project, which may take further action in accordance with Section 12-8-3(f) of the Code.
Section 10: Breach and Default. The failure by either Party to comply with its obligations under this Provision, which is not caused by the other Party’s failure to comply with its own obligations under this Provision, will constitute a material breach of this Provision.
A. In the event of DEVELOPER’s material breach of this Provision, the DEVELOPER will be considered to be in default of this Provision upon the DEVELOPER’s failure to cure such breach within sixty (60) days after written notice of such breach and demand to cure by the CITY, provided, however, that if the nature of DEVELOPER’s default is such that more than sixty (60) days is reasonably required for its cure, then DEVELOPER will not be deemed to be in default if DEVELOPER, with the CITY’s acknowledgment and consent, commences such cure within said period and thereafter diligently pursues such cure to completion.
B. In the event of DEVELOPER’s violation of this Provision, DEVELOPER will comply with such enforcement and mitigation efforts as are determined by the Enforcement Committee in consultation with the NAC, or City Council (as applicable), until the City Council has determined that DEVELOPER is in compliance or has taken adequate steps to mitigate violations, all in accordance with Section 12-8-3(f) of the Code.
C. In the event of the CITY’s material breach of this Provision, the CITY will be considered to be in default of this Provision upon the CITY’s failure to commence its cure of such breach and thereafter diligently pursue such cure to completion within ninety (90) days after written notice of such breach and demand to cure by the DEVELOPER.
Section 11: Effective Date, Term, and Termination. This Provision has no force or effect until the date upon which it has been fully executed by the duly authorized representative of the CITY (if necessary, pursuant to the resolution of the Detroit City Council as approved by the Mayor of the City of Detroit) and has been approved by the City of Detroit Law Department (“Effective Date”). This Provision will remain in effect until completion of the Project and Developer’s satisfaction of all the obligations hereunder, or earlier termination by the Parties if approved by the City Council. The term of this Provision will be equal to the period of time necessary for both Parties to satisfy all respective obligations set forth in this Provision, at which time and upon written notice by either Party the term of this Provision will expire.
Section 12: Amendments. No amendment to this Provision will have any force or effect against either Party unless it is in writing, expressly making reference to this Provision, is fully executed by the duly authorized representative of the CITY (if necessary, pursuant to the resolution of the Detroit City Council as approved by the Mayor of the City of Detroit) and DEVELOPER and is approved by the City of Detroit Law Department.
Section 13: Notices. All notices, requests, notifications, and other communications (collectively, “Notices”) related to this Provision shall be given in writing, signed by an authorized representative of the Party and sent by United States mail, registered or certified, return receipt requested, postage prepaid, or sent by express, overnight courier to the respective parties at the addresses listed below, and shall be deemed delivered one (1) business day after the delivery or mailing date:
If to CITY:
City of Detroit, Planning & Development Department
2 Woodward Avenue, Suite 808
Detroit, MI 48226
Attention: Director
With a copy to:
City of Detroit, Law Department
2 Woodward Avenue, Suite 500
Detroit, MI 48226
Attention: Corporation Counsel
If to DEVELOPER:
Fisher 21 Lofts, LLC
300 Riverfront Drive, Suite 22B
Detroit, MI 48226
Attention: Richard Hosey
Either Party to this Provision may change its address and/or point of contact for the receipt of Notices at any time by giving written Notice thereof to the other Party in accordance with this Section.
Section 14: Miscellaneous Terms.
A. Independent Parties; Effect of Agreement. Each Party acknowledges that the CITY and the DEVELOPER are independent of each other and do not intend, as a result of this Provision or otherwise, to become a joint venture, partners, employees, servants, agents, representatives, contractors, or any type of related business entities to one another with respect to the subject matter of this Provision. DEVELOPER and CITY acknowledge and agree that this Provision, and the performance of the obligations hereunder, is intended to satisfy the obligations of the Ordinance and the CBO Process.
B. Assignment. This Provision sets forth DEVELOPER’s intended activities to address impacts on the community by the Project in accordance with the Ordinance. The DEVELOPER may not delegate or assign this Provision, or any portion thereof, either voluntarily or involuntarily, or by operation of law.
C. Force Majeure. In the event of enforced delay in the DEVELOPER’s performance of its obligations under this Provision due to unforeseeable causes beyond its control and without its fault or negligence, including, but not restricted to, acts of God or of the public enemy, fires, floods, epidemics, or severe weather, the time for performance of such obligations shall be extended for the period of the enforced delays; provided that the DEVELOPER must within thirty (30) days after the beginning of such enforced delay, have first notified the CITY in writing of the causes thereof and requested an extension for the period of the enforced delay. In the event there is any dispute as to what constitutes such force majeure event, the determination of the CITY will control.
D. Choice of Law and Venue. The Parties acknowledge that this Provision will be governed by the laws of the State of Michigan, excluding its choice of laws rules. Any legal suit, action or proceeding arising out of this Provision will be instituted in the federal courts of the United States of America or the courts of the State of Michigan, in each case located in the City of Detroit and County of Wayne, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
E. Severability. In the event any provision in this Provision is found by a court to be impermissible or illegal, then that provision shall be stricken from the Provision and shall be replaced by a provision that is permissible and legal and by mutual agreement of the Parties comes closest to expressing the intent of the stricken provision. The remainder of the Provision shall remain in full force and effect in accordance with its original overall intent.
F. Counterparts. This Provision may be executed in multiple counterparts, each of which shall be deemed to be an original, but all of which together shall constitute but one document. Each counterpart may be executed by facsimile or electronic signature, which will be deemed to be an original signature, to the extent permitted by Applicable Law.
G. Authority of City. Notwithstanding anything in this Provision or otherwise to the contrary, the CITY is not authorized or obligated to perform any of its obligations pursuant to this Provision until this Provision has been fully executed by the duly authorized representative of the CITY (if necessary, pursuant to the resolution of the Detroit City Council as approved by the Mayor of the City of Detroit) and has been approved by the City of Detroit Law Department. Any amendments or modifications must likewise be duly signed (if necessary, authorized by resolution of the City Council and approved by the Mayor), and must be approved by the Law Department, to be enforceable against the CITY.
EXHIBIT A
DEVELOPER’S COMMITMENTS
(Fisher Body Plant 21)
DEVELOPER hereby agrees to the following with respect to the Project:
1. MITIGATION OF PROJECT CONSTRUCTION
A. Impact – Hours of Construction
i. DEVELOPER confirms that most construction activities will occur between 7a and 6p Monday through Friday. To ensure timely completion, construction activities may be required beyond 6p Monday through Friday, and on Saturdays and Sundays during different phases of the Project. DEVELOPER agrees to provide impacted residents 48-hour notice via the communication sources identified in Section (1) (c) (i) of this Agreement for any construction work on Sundays, provided that such notice is not required for action to address unforeseen emergency work (e.g., a burst pipe).
B. Impact – Environmental Impact
i. DEVELOPER will maintain all insurance consistent with standard construction practices.
ii. DEVELOPER will comply with all federal, state and local laws including requiring that all contractors, subcontractors, suppliers and professionals carry all appropriate general and/or professional liability insurance for any activities related to the Project.
iii. DEVELOPER will share all environmental reports and the results of associated monitoring with the Neighborhood Advisory Council (“NAC”) and posted via applicable communication sources as identified in section (1) (c) (i) of this Agreement.
iv. DEVELOPER will ensure that testing of on-site workers exposed to hazardous materials will be conducted during construction in accordance with the State of Michigan Department of Environment, Great Lakes and Energy (“EGLE”).
v. DEVELOPER will cease all work related to or environmentally impacted by the demolition or rehabilitation of the Project upon the self-discovery and/or notification by regulatory agencies of any violations of environmental issues during work on the Project structure and property. All work related to or impacted by environmental issues on the project will cease until such time as the noted issue of concern is identified and corrected consistent with the appropriate agency.
vi. DEVELOPER will create and implement a fugitive dust plan – including but not limited to: dust suppression and particulate matter monitoring - during removal and abatement of hazardous material. DEVELOPER will create the plan in accordance with existing laws and regulations and share the fugitive dust plan with the NAC and community.
vii.DEVELOPER will identify all hazardous materials at the site and ensure that the removal, transportation and disposal of all hazardous materials from the site will be done by qualified environmental professionals in accordance with all applicable laws. Vehicles transporting hazardous materials off-site will be secured and covered to prevent the release of dust or debris into surrounding neighborhoods.
viii.DEVELOPER and all contractors, subcontractors, suppliers and professionals will utilize CITY approved designated routes and will avoid the transportation of hazardous materials on residential streets.
ix.Upon request, DEVELOPER will publicize its rodent control plan and will employ adequate rodent control measures during construction and post construction. This includes but is not limited to the monitoring and remediation of any infestations.
C. Impact – Communication
i.DEVELOPER will establish communication sources to inform residents about construction progress, roadway closures, environmental issues, leasing and business opportunities related to Fisher 21 Lofts. Communication sources will include but are not limited to:
a. An email listserv
b. Developer’s project website
c. Neighborhood information station
d. Placards posted at the project site
ii.DEVELOPER will provide regular updates to the community about construction progress, project updates, leasing and business opportunities for Fisher 21 Lofts via the communication sources. DEVELOPER will communicate the aforementioned opportunities directly with management agents for
a. Genesis Villas
b. Piquette Square
c. Palmer Court
d. Other Impact Area apartment communities
iii.DEVELOPER will provide 48-hour advance notice to community of any impacts or changes in local road accessibility or bus schedules and routes as a result of construction or post-construction activities.
a. Such notice will be given to via the communication sources identified in section
(1) (c) (i) and to the apartment management agents identified in section (1) (c)
D. Impact – Public Space and Amenities
i. DEVELOPER will request an increase in DDOT bus services (additional routes and/or frequency of service) to accommodate the increased number of residents in the neighborhood upon completion of Fisher 21 Lofts.
ii. DEVELOPER will not seek closure of Harper Avenue or Beaubien Avenue during the construction and post construction phase of the Project. However, DEVELOPER may need to seek closure of streets adjacent to the project to facilitate work and will be consistent with permissions granted by CITY.
2. WORKFORCE AND LOCAL HIRING
A. Impact – Living Wage
i. DEVELOPER will pay a minimum of $17 per hour for all direct employees on the Project. Developer will encourage the same for contractors, subcontractors and tenants.
B. Impact – Training for Security and Contractors
i. DEVELOPER will ensure any security employees or contractors employed by DEVELOPER during the pre-construction, construction or post-construction phases receive racial, disability and neurodivergence sensitivity training.
C. Impact – Training for Local Developers
i. In the event that DEVELOPER participates in or offers workshops and trainings for small developers, DEVELOPER will inform the NAC of those opportunities in a timely manner so as to receive recommendations for participants in said workshops and trainings.
D. Impact – Internship and Apprenticeship Opportunities
i. DEVELOPER will work with Detroit at Work and the Detroit Public Schools Community District (DPSCD) to identify mentorship and apprenticeship opportunities on the project site for DPSCD vocational tech students. DEVELOPER will help distribute information about these opportunities to organizations in the Impact Area.
3. DESIGN AND SUSTAINABILITY
A. Impact – Sustainability and Environmental Features
i. DEVELOPER will continue to investigate the viability of all methods needed to reduce the building’s carbon footprint.
ii. DEVELOPER will use high efficiency lighting, Energy Star-certified appliances and low water utilization plumbing in all residential units.
iii. DEVELOPER will evaluate the feasibility of installing electric vehicles (“EV”) charging stations in its public parking lots.
iv. DEVELOPER will incorporate the use of live trees and vegetation in installations adjacent to streets.
B. Impact – Preservation of Existing Graffiti
i. DEVELOPER has scanned all surfaces including existing graffiti and will develop a plan to use appropriate graffiti as art displays within the building where it is aesthetically feasible.
C. Impact – Accessibility
i. DEVELOPER will ensure that ADA accessible units are available on all floors of the Fisher 21 Lofts. Additionally, DEVELOPER will design ingress, egress and public spaces to be ADA accessible.
ii. DEVELOPER will ensure that all spaces open to the public, such as commercial spaces will provide public restrooms and facilities as required by the Michigan Building Code.
D. Impact – Public Space and Amenities
i. DEVELOPER affirms its intention to make community use of commercial and public outdoor space a top priority in programming decisions. When publicly accessible commercial or outdoor space is activated, DEVELOPER will notify the NAC in writing.
ii. DEVELOPER confirms that the use of the pool will be reserved exclusively for residents of the property and their guests. DEVELOPER will study the feasibility of offering programming at the pool, e.g. water aerobics to residents of Fisher 21 Lofts.
iii. Up to two times annually, DEVELOPER will make space for no more than 75 people within Fisher 21 Lofts for community meetings. The space will be available upon request and DEVELOPER will provide contact information and parameters for community use of space via communication sources defined in section (1)(c)(i) of this Agreement.
iv. DEVELOPER commits to keep the interior common areas of the building smoke free in accordance with Public Act 368 of 1978.
4. HOUSING
A. Impact – Affordable Housing
i. DEVELOPER will make three (3) two-bedroom residential units available for the 15-year anticipated life of the tax abatement to renters with incomes of fifty percent (50%) of Area Median Income (“AMI”); provided the DEVELOPER may reduce the total number of affordable units to equalize the financial impact of these more deeply affordable units as compared to the originally proposed twenty percent (20%) of units set aside for renters with an income of eighty percent (80%) AMI. It is anticipated this will reduce the total number of affordable units from 87 to 63 reducing the total number of affordable units below the twenty percent (20%) threshold as required per City of Detroit Inclusionary Housing Ordinance.
ii. DEVELOPER will seek a waiver from City Council to gain approval for this affordable housing commitment per the City of Detroit Inclusionary Housing Ordinance.
iii. Prior to the end of the affordability period as indicated in the Project’s affordability agreement, DEVELOPER or property owner shall consult with the City of Detroit’s Housing and Revitalization Department (“HRD”) to explore options and feasibility to preserve those affordable units beyond the initial affordability period.
iv. DEVELOPER will create and implement a plan to market affordable units to residents in the Impact Area and will share the plan with the NAC in writing.
5. COMMUNITY SUPPORT AND INVESTMENTS
A. Impact – Investment in Community Improvement Initiatives
i. DEVELOPER will contribute a total of $500,000 to be paid upon approval of the Provision by Detroit City Council to a Fisher Body CBO Community Fund (the “Fund”). The Fund will be paid in the following installments:
a. Initial payment of $200,000 upon closing.
b. Annual amounts of $20,000 as adjusted for inflation not to exceed five percent (5%) as determined by the consumer price index for the fifteen (15) year anticipated life of the tax abatement.
ii. Within six (6) months from closing, the CITY and DEVELOPER in consultation with the NAC will start the process to operationalize the Fund – with a goal for the Fund to be active within twelve (12) months of closing.
iii. The NAC will determine how to direct program dollars in the Fund by a majority vote.
iv. Eligible uses of the Fund may include but are not limited to the in-kind donation or discounting by the developer of commercial space at Fisher Lofts 21 for local
entrepreneurs..
B. Impact – Food Security
i. DEVELOPER will evaluate the need and feasibility for creating a community farmers market located in the public outdoor space on the property.
ii. In the event the DEVELOPER contracts with an organization to manage a farmers market on the property, DEVELOPER will request said organization to recruit local fruit and vegetable growers from the Impact Area and North End to participate in the market.
6. ADDITIONAL LIMITATIONS & CONDITIONS
A. Governmental Approvals & Enforcement
Notwithstanding anything to the contrary contained herein, any terms, conditions or obligations of this Provision that pertain to matters that require separate governmental approvals and/or enforcement by a separate governmental entity, board, authority, commission and/or CITY department other than P&DD are expressly subject to, conditioned upon and limited by any such separate governmental approvals and/or enforcement.
B. Compliance with the Law
Notwithstanding anything to the contrary contained herein, if any terms, conditions or obligations of this Provision are found by the CITY to be contrary to or inconsistent
with any federal, state or local laws, codes and/or regulations, any such terms, conditions or obligations shall be considered void and unenforceable for purposes of this Provision. If any terms, conditions or obligations of this Provision are found by the CITY to be void and unenforceable, the remainder of this Provision shall not be affected and shall remain valid and enforceable to the fullest extent permitted by law.