LTC 067-2010 Update on Flamingo Public Baywalk Concept Planm MIAMIBEACH
OFFICE OF THE CITY MANAGER
NO. LTC # 067- 2010 LETTER TO COMMISSION
TO: Mayor Matti Herrera Bower and Members of the City Commission
FROM: Jorge M. Gonzalez, City Mai
DATE: March 1, 2010
SUBJECT: Update on Flamingo Public
The purpose of this LTC is to update the Mayor and City Commission on the status of the
public bay walk concept plan for the rear of the Grand Flamingo property at 1500 Bay Road.
Pursuant to the settlement agreement between the City of Miami Beach and AIMCO, the
initial concept plan for the Flamingo Public Bay Walk was submitted at a meeting held on
February 12, 2010 in the City's Planning Department. Attached is a copy of the initial
concept plan.
Based upon an initial review by the Administration and Planning staff of the concept plan, it
is consistent with the settlement agreement, as unencumbered access to the public will be
provided along the entire stretch of the bay walk on the Flamingo property, from 14~' Street
north to the Capri project. Planning staff has requested additional documentation, pertaining
to site elevations and grade changes, that will be necessary in order to confirm whether any
variances from the Board of Adjustment will be required. The concept plan maybe subject
to further revision, depending upon the results of this analysis.
To date, all of the applicable requirements outlined in the settlement agreement have been
substantially adhered to. City staff expects to continue to work with AIMCO in a collaborative
manner to implement the public bay walk project, and will keep the City Commission
informed of the progress.
A copy of the final executed Settlement Agreement is also attached for your information, as
well as the U.S. District Court order approving the settlement agreement and dismissing the
case on December 17, 2009 (exhibits to the settlement agreement are available from the
City Clerk or City Attorney's office). Following the agreed upontwo-year timetable contained
in the Settlement Agreement, AIMCO and the City are striving for completion and opening of
the Flamingo baywalk by December 17, 2011.
If you have any questions regarding this matter, please feel free to contact the City Attomey
or me.
JMG: GL:TRM
F:1P ALL\CM_RESP\Flamingo Baywalk Update February 2010.Itc.docx
ATTACHMENTS
C: Jose Smith, City Attomey
Gary Held, First Assistant City Attomey
Bob Parcher, City Clerk
Jorge G. Gomez, Assistant City Manager
Richard G. Lorber, Acting Planning Director
Thomas R. Mooney, Design and Preservation Manager
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Case 1:08-cv-22419-CMA Document 224 Entered on FLSD Docket 12/17/2009 Page 1 of 2
UNITED STATES DISTRICT COURT '
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE N0.08-22419-CIV-ALTONAGA/Brown
MCZ/CENTRUM FLAMINGO II, LLC,
et al.,
Plaintiffs,
vs.
CITY OF MIAMI BEACH,
Defendant.
ORDER OF DISMISSAL WITH PREJUDICE
THIS CAUSE came before the Court on the parties' Stipulation and Joint Motion for Entry
of Final Judgment and Order of Dismissal With Prejudice ("Joint Motion") [D.E. 223], filed
December 16, 2009. The Court having reviewed the Settlement Agreement [D.E. 223-1] and the
file, and being fully advised, it is
ORDERED AND ADJUDGED as follows:
The Joint Motion [D.E. 223] is GRANTED.
2. The Settlement Agreement is hereby approved and adopted by the Court.
3. This action and all claims and counterclaims asserted herein are hereby dismissed
with prejudice, with each party to bear its own costs and attorneys' fees.
4. The Clerk is directed to CLOSE this case, and all. pending motions are DENIED as
moot.
5. The Court retains jurisdiction to enforce the Settlement Agreement according to its
terms.
Case 1:08-cv-22419-CMA Document 224 Entered on FLSD Docket 12/17/2009 Page 2 of 2
CASE N0. 08-22419-CIV-ALTONAGA/Brown
DONE AND ORDERED in Chambers at Miami, Florida, this 17th day of December, 2009.
CECILIA M. ALTONAGA
UNITED STATES DISTRICT JUDGE
cc: counsel of record
Case 1:08-cv-22419-CMA Document 223-1 Entered on FLSD Docket 12/16!2009 Page 2 of
85
SETTLEMENT AGREEMENT
MCZ/Centntm Flaningo II, LLC, a Delaware ]itnited liability corporation
("Flamingo II"), MCZ/Centrum Flamingo III, LLC, a Delaware limited liability
eotporatiott ("Flatnittgo III"), and Morton Towers Apartments, L.P., a Delaware Limited
Partnership ("Morton"), and their respective successors and assigns, collectively t•eferred
to herein as "Flamingo/Morton" or "Owner," and the City of Miami Beach, a Florida
tnunicipal corporation, and its successors and assigns ("City"), stipulate and agree as
follows:
R1;CITALS
WHEREAS, Flamingo II and Flamingo III own real property located within the
City of Miatni Beaclt, located west of Bay Road between 14`t' Street on the south and the
theoretical extension of t6°i Terrace on the north ("Flamingo Property"), more
particitlatly described on Exhibit A attached hereto, with Flamingo II owning the North
Tower on the Flamingo Property and Flamingo III owning the Center Tower and all
conunon areas on the Flamingo Property;
WHEREAS, Morton is the sole member of both Flamingo II and Flamingo III;
WHEREAS, disputes, claims and cotmterclaims have arisen between
Flamingo/Morton and the City concerning multiple matters, including but not limited to
whether the City's 1997 Design Review Board approval of the redevelopment of the
Flatnittgo Property required a publicly accessible baywalk along its Biscayne Bay
shoreline; whether the City is obligated to issue a final certificate of occupancy for the
Center Tower of the Flamingo Property; whether the City owes Flamingo/Morton
$250,000 representing overpayment of Temporary Cerrificate of Occupancy (TCO) fees;
and whether additional building perntit fees are owed to the City by Flamingo/Morton,
including without limitation the disputes, claims and counterclaims asserted in that
certain litigation styled MCZ/Centrum Flamingo R, LLC, et al. v. City of Miatni Beach,
United States District Court, Southern District of Florida, Case No. OS-22419-Civ-
AltonagaBrowtt ("Flamingo Litigation");
WHEREAS, Flamingo/Morton and the City desire to resolve and settle all
pending disputes, claims and counterclaims between them, including without limitation
all claims and counterclaims that were or could have been asserted in the Flamingo
Litigation, as set forth herein;
WHEREAS, the parties believe it would be in their best interests and the interests
of their respective citizens and residents to agree to the provisions of this Settlement
Agreement;
NOW, THEREFORE, in consideration of the nnuual agreements, undertakings
and representations contained in this Settlement Agreement and other good and valuable
Case 1:08-cv-22419-CMA Document 223-1 Entered on FLSD Docket 12/16/2009 Page 3 of
85
consideration, the receipt and sufficiency of which are hereby acknowledged by the
parties, Flamingo/Morton and the City agree as follows:
1. The foregoing recitals are true, accurate and corl•ect and are incorporated
herein by this reference.
2. General Settlement Conditions
a. A final Certificate of Occupancy (C.O.) for the Center Tower
building on the Flamingo Property (under Master Building Permit No. B0001111) shall
be issued by the City within thirty (30) days of the entry of the stipulated final judgment
and order of dismissal described in paragraph 2f below. FlanringolMorton shall submit a
copy of the stipulated final judgment as part of its C.O. package to obtain the final C.O.
The final C.O. fee shat] be waived by the City.
b. The parties release all claims against each other for permit fees,
including but not limited to the City's cotmterclairns seeking building permit fees in
excess of $1.2 million against Flarningo/Mortorr in the Flamingo Litigation and
Flamingo/Morton's claim against the City for $250,000 representing alleged
overpayment of TCO fees.
c. The City will make reasonable efforts to resolve the drainage
problems on Bay Road on the north end of the Flamingo Property. Reasonable efforts for
purposes of this paragraph 2c are defined as meeting a 5-year level of service for Class C
roadway, as implemented through the Basis of Design Report, West Avenue -Bay Road,
Final Report, dated Febniary 23, 2007 (p. 2S). The City will plan the drainage
improvements within fifteen (15) months of the entry of the stipulated final judgment and
order of dismissal described in paragraph 2f below; it will design and construct the
improvements within twenty-four (24) months after planning is completed; and it will
test, evaluate and fix any problems identified by testing and evaluation within twenty-one
(21) months after the completion of construction; provided, however, that
notwithstanding these benchmarks and timetables, the City agrees that it will meet its
obligations under this paragraph 2c as soon as reasonably possible.
d. Flamingo/Morton will submit an application to convert the 3rd
floor storage space in the Center Tower to individual tenant storage, which shall be
subject to the review and approval of City staff. Flamingo/Morton will satisfy all code
and regulatory requirements for such conversion. City approvals and permits for such
conversion shall not be unreasonably witlrlreld.
e. Simultaneous with the execution of this Settlement Agreement, the
parties shall execute and deliver to each other general releases of al.l claims and
counterclaims that were or could have been alleged against each other, in the form
attached hereto as Exhibit B.
Case 1:08-cv-22419-CMA Document 223-1 Entered on FLSD Docket 12/16/2009 Page 4 of
85
£ Inunediately following the execution of this Settlement
Agreement, the parties will submit, in the fonu attached hereto as Composite Exhibit C, a
stipulated final judgrnetrt approving and adopting this Settlement Agreement (neither
party prevailing or admitting liability) and order of dismissal with prejudice of all claims
and counterclaims in the Flamingo Litigation with each party to bear its own attorneys'
fees and costs (including discovery-related fees and costs) attd with the Court retaining
jwisdiction to enforce this Settlement Agreement and the stipulated judgment.
g. The only press release concerting the Flamingo Litigation and/or
its settlement shall Ue a joint press release, which has already been approved and issued
by the parties and is attached hereto as Exhibit D. The parties acknowledge that their
intent in agreeing to a joint press release includes, at a minitnutn, making best efforts to
cooperate with each other going forward, informing the public of such cooperative
relationship, and not having any managerial employee {defined for the City as the City
Manager, Assistant City Managers and Department Directors) of the parties or any
counsel of record for the parties in the Flamingo Litigation make public disparaging
remarks about each other to third parties.
3. Public Access Conditions
a. The Flantingo baywalk (described in Exhibit F, provided for
below), including connections to the rtortlt {across the Property's nortltem boundary to
connect to the, Mae Capri baywalk), and south (across the Property's southern boundary
to connect to the baywalk in the 14°i Street street end), will be open to public access, as
set forth ]terein, no later t]tan twenty-four (24) months after the entry of the stipulated
judgment attd order of dismissal described in paragraph 2f above. After entry of the
judgment, Owner, at its expense, will promptly begin its design, permitting, and
construction of any modifications necessary for allowing public access to the Flamingo
baywalk, according to the timetable with benchmarks agreed upon by the parties,
attached hereto as Exhibit E and incorporated herein by reference.
b. Owner will continue to own the property on which the Flamingo
baywalk is located, but will grant a recordable easement in the form attached hereto as
Exhibit F, allowing public access under the terms and conditions of this Settlement
Agreement to the area of the Flamingo Property legally described in the easement. The
easement shall bear an effective date of two years from the date of entry of the stipulated
judgment described in paragraph 2f above and shall be executed and recorded in the
public records of Miatni-Dade County immediately after entry of the stipulated judgment.
c. The City will police the Flamingo baywalk in a manner consistent
with other sections of baywalks owned by the City, or on which the City has obtained
rights of access tltrouglt easement, covenant or otherwise, and which are open to tl~e
general public (hereina8er "publicly accessible baywalks in the City"). Owner agrees to
submit legitimate complaints about any alleged City noncompliance with this
requirement to the City Manager, in writing, for Itis or iter review and appropriate action.
If the parties are still unaUle to resolve disputes regarding the policing of tite Flamingo
3
Case 1:08-cv-22419-CMA Document 223-1 Entered on FLSD Docket 12/16/2009 Page 5 of
85
baywallc, the parties agree that an independent muhially agreed upon neutral arbitrator
will resolve such disputes under American Arbitration Association rules, as provided in
paragraph 17 of this Agreement. If the independent arbitrator concludes that the City has
breached its duty to police the Flamingo baywalk, Owner shall be temporarily relieved of
the obligation to provide public access to the Flamingo baywalk until the City's failure to
police is remedied to the satisfaction of the arbitrator. The City's adoption of, and
reasonable good faith efforts to enforce, security measiues consistent with that used in or
on other sections of publicly accessible baywalks in the City shall be accepted as
satisfaction of the City's obligations under this paragraph 3c. Any noncompliance by
Owner and/or its officers, employees, contractors, residents or authorized guests with any
rules, regulations, ordinances or statutes applicable to the Flamingo baywallc (and not
materially inconsistent with the provisions of this Settlement Agreement) shall not be a
basis for any legitimate complaint about alleged City noncompliance with, or for
temporary closure of the Flamingo baywalk pursuant to, this paragraph 3 c.
d. The Flamingo baywalk will be open to the public from sunrise to
sunset. Upon completion of a continrious publicly accessible baywalk from 5th Street to
Lincoln Road (including the alternate route discussed in paragraph 3k below)
(hereinafter, "the City baywalk"), the City Commission may adopt uniform rules and
regulations conceming hours of operation of the City baywalk, affecting the Flamingo
Uaywalk, but not materially inconsistent with the provisions herein. In the event of any
conflict between an existing City ordinance, rule and/or regulation concerning hours of
operation for publicly accessible baywalls in the City and this paragraph 3d, the hours of
operation prescribed in this paragraph 3d shall prevail as to the Flamingo baywalk.
Owner shall post signs at all access points to the Flamingo baywalk, subject to City staff
review and approval (not to be unreasonably witlil~eld), displaying actual hours of
opening and closing, and summazizing the use restrictions described in paragraph 3f
below.
e. Owner will install locking gates on either end of the Flamingo
baywalk. The gates are subject to the review and approval of City staff, not to be
unreasonably withheld. Owner shall neither open the gates later than sunrise, nor close
the gates before sunset. Upon completion of the City baywalk, the City Commission may
adopt uniform rules and regulations concerning the opening and closing of gates on the
City baywalk, affecting the Flamingo baywalk, but not materially inconsistent with the
provisions herein. In the event of any conflict between an existing City ordinance, rule
and/or regulation concerning the opening and closing of gates for publicly accessible
baywalks in the City and this paragraph 3e, the provisions of this paragraph 3e shall
prevail as to the Flamingo baywalk.
f. Permitted public uses of the Flamingo baywalk granted by the
easement described in pazagraph 3U above shall be for jogging, walking, or hiking along
the bay. Periodic and reasonable respites by members of the public using the Flan~ingo
baywalk to enjoy the view or to rest shall be allowed. The easement described in
paragraph 3b above shall prohibit members of the public from loitering and consuming
alcohol on the Flamingo baywalk and from using the Flamingo baywalk for destination
4
Case 1:08-cv-22419-CMA Document 223-1 Entered on FLSD Docket 12/16/2009 Page 6 of
85
activities including but not limited to fishing, picnicking, and camping. No chairs, tents,
or other temporary or permanent fttriture may be used, whether by the public or
Flamingo residents, on the Flamingo baywallc daring its daytime operating hours as
described in paragraph 3d above. No unleashed dogs may be brought onto the Flamingo
baywallc. The ttse of motorized vehicles, skateboards, scooters and bicycles (except by
policing authorities, maintenance and/or emergency personnel) shall be prohibited. Upon
completion of the City baywallc the City Commission may adopt ttnifonmm ntles and
regulations concenning permitted uses of the City baywallc, affecting the Flamingo
baywallc, but not materially inconsistent with the provisions herein. In the event of any
conflict between an existing City ordinance, rule andlor regulation concerning permitted
uses of publicly accessible baywalks in the City and this paragraph 3f, the provisions of
this paragraph 3f shall prevail as to the Flamingo baywallc.
g. The City will assume and defend all liability of Owner, as set forth
in this paragraph 3g, within the Easement Area described in the Declaration of
Restrictions and Easement Agreement attached hereto as Exhibit F ("Easement
Agreement"), except for any liability arising from the gross neg]igence or willful acts of
the Owner, its officers and employees, and except for activities that occur from sunset to
sunrise (while the Flamingo baywallc is closed to the public in accordance with paragraph
3d above). Nothing contained in this paragraph 3g or elsewhere in this Settlement
Agreement is in any way intended to be a waiver of the limitations on the City's liability
to third parties as set forth in Section 758.28, Florida Statutes; however, The limitations
under said statutory provision shall not apply to the City's contractual obligations to
defend Owner and to cover, pay and/or reimburse any and all costs, expenses, liabilities,
claims, actions, causes of action, losses, demands and damages, including, without
Iimitation, reasonable attorneys' fees (including the cost of iti-house counsel) and
disbursements at the trial level and all levels of appeal, relating to death of or injury to
persons, or loss of or damage to property, incttned by Owtmer and occurring within the
Easement Area described in the Easement Agreement, resulting froth, arising ottt of, or
incurred in connection with, use of the Easement Area by Easement Beneficiaries
described in the Easement Agreement.
h. The City will have no maintenance or repair responsibility over the
Flamingo seawall or Flamingo baywallc. The City wil] provide sanitation services,
including the cleaning and removal of rubbish from the Flamingo baywallc and seawall
cap, according to the City's normal cleaning schedule for similar publicly accessible
facilities. The Owner will be responsible for cleaning the Flamingo baywallc after' any
private evening events on the Flamingo baywallc.
i. Changes to landscaping, design, fencing, walls, gates, pool areas,
etc., to provide for mitigating the loss of privacy and security resulting from allowing
public access to the FIanmitmgo baywallc shall be subject to review and approval of City
staff in Their regulatory capacity, and/or by City boards in their regulatory capacity if
their approval is required by law, which approval shall not unreasonably be withheld.
The City agrees to waive all City fees for regulatory review and permitting processes
5
Case 1:08-cv-22419-CMA Document 223-1 Entered on FLSD Docket 12/16/2009 Page 7 of
85
associated with the work that needs to Ue accomplished in this paragraph 3i so that the
Flamingo baywallc may be opened to the public.
j. No publicly accessible northern walkway access on the Flamingo
Property will be provided front Bay Road to the Flamingo baywalk.
k. Within the ten (10) year period followi~tg entry of the stipulated
judgment and order of dismissal described in paragraph 2f above, the City must achieve a
publicly accessible comtection from the Flamingo Property to Lincoln Road, either as
shown on the City of Miattti Beach's "Public Baywalk Master Plan" and as described in
the LTC 088-2009, both of which are attached as Composite Exhibit G, or indirectly
tluouglt Lincoln Ten•ace. However, if the public access is provided indirectly through
Lincoln Ten•ace, tltert the entire route front Lincoln Terrace to Lincoln Road shall be
streetscaped and adequately lighted in accordance with the adopted streetscape plan for
the West Avenue -Bay Road area, "West Avenue -Bay Road, Basis of Design Report,
City of Miarni Beaclt, Final Report," February 23, 2007, prepared by Glatting Jackson
Kercher Anglin Lopez Rinehart, Inc., as may be amended from time to time. The failure
of the City to obtain public access rights to any property or properties shall not constitute
a force majeure event (pursuant to paragraph 6 below} excusing the City's perfonnaitce
of its obligations under this paragraph 3k.
1. In addition to establishing the publicly accessible connection to
Li~tcoln Road described in paragraph 3k above, the City will exercise reasonable
effective efforts to progress its Public Baywalk Master Plan within the ten (10) year
period following entry of the stipulated judgment and order of distissal described in
paragraph 2f above. The City will be deemed to have satisfied the regirirentents of tItis
pai•agrapIt 31 by efforts of the City and/or arty property owner to obtain non-City perntits
for, or efforts in firrtlterance of, constnacti~tg any publicly accessible baywalk
improvement (including but not limited to any segment or connection) fi'om Stlt Street to
Lincoln Road, individually or collectively exceeding X250,000 in costs or expenses. The
failure of the City to obtain public access rig(tts to any property or properties shall not
constitute a force majeure event (pursuant to paragraph 6 below) excusing the City's
performa~tce of its obligations under this paragraph 31.
m. If either of the two conditions set forth in paragraphs 3k and 31
above are not met by the end of the tenth year after entry of the stipulated judgtttent
described in paragraph 2f above, tltert Owner may request arbitration by an independent
mutually agreed upon neutral arbitrator, under American Arbitration Association rules as
provided in paragraph 17 of this Agreement, to determine appropriate solutions,
including temporary closure of public access to the Flamingo baywalk Luttil the umnet
condition is satisfied.
n. This Agreement is binding on Owner's subsidiaries, related
entities, successors and assigns.
6
Case 1:08-cv-22419-CMA Document 223-1 Entered on FLSD Docket 12/16/2009 Page 8 of
85
o. After the parties have complied with the obligations in paragraphs
2a, 2b, Ze and 2f above and the Flamingo baywalk is open to the public as provided for in
this Settlement Agreement, and subject to the provisions in paragraph 6 below, the only
bases for closures of the Flatningo baywallc shall be the temporary closure as provided in
paragraphs 3c and/or 3m above.
4. The parties acknowledge that any requests for approval necessitated by
this Agreement, whether by the City or its boards or staff, acting in its/their govenunental
capacity, are subject to the independent discretion of the City and/or such boards and
staff, which are not agreeing in advance to any particular outcome on such applications
for approval, except that the parties have agreed the City will issue the final Certificate of
Occupancy for the Center Tower building on the Flatningo Property as provided in
paragraph 2a above. The parties further acknowledge that should the City or its boards or
staff, in the exercise of their discretion, unreasonably deny any approval sought by
Owner under paragraphs 3a (including Ex]iibit E), 3d, 3e and/or 3i above, such
tttueasonable denial constihttes a basis for an enlargement of time for Owner to perform
any obligations under this Agreement for which such approval was needed, and that
disagreements under this provision shall be resolved as provided in paragraph 17 of this
Agreement. The parties acknowledge and agree that while this Agreement provides for
enlargements of time to perform obligations under this Agreement based upon
tttu•easonable denials of approvals sought by Owner under this Agreement, nothing in this
Agreement is intended to supplant, limit, modify or otherwise affect (i) the remedies
available to Owner, independent of tlus Agreement, to seek administrative andlor judicial
review of any action or inaction by the City in regard to land use approvals sought by
Owner pursuant to this Agreement or otherwise, or (ii) the time frames applicable to such
remedies, and this Agreement is without prejudice to all such remedies (hereinafter
referred to as "Extra-Agreement Land Use Remedies").
5. This Settlement Agreement is not and shall not be cotlstrtted as a
development permit, development approval, development order or authorization to
commence development, nor shall it relieve the Owner of any obligations to obtain
necessary permits and any other development approvals that may be required under
applicable law and undet• and pursuant to the terms of this Agreement. The parties hereto
recognize and agree that the failure of this Agreement to address a particular petniit,
permitting condition, term or restriction shall not relieve the Owner of the need to comply
with any applicable law govering perniitting requirements, conditions, terms or
restrictions notwithstanding any such omission. The parties recognize and agree that this
paragraph 5 is not intended and shall not be construed to allow the City to adopt
permitting or other development approval requirements, conditions, terms or restrictions
materially inconsistent with the provisions of this Agreement, or to apply any permitting
or other development approval requirements, conditions, terms or restrictions in a mam~er
that would be materially inconsistent with the provisions of this Agreement.
6. Any prevention, delay or stoppage dtte to strikes, lockouts, labor disputes,
acts of God, inability to obtain labor or materials or reasonable substitutes therefor, t•iot,
civil commotion, fire or other casualty, and other causes beyond the reasonable control of
7
Case 1:08-cv-22419-CMA Document 223-1 Entered on FLSD Docket 12/16/2009 Page 9 of
85
the party obligated to perform, excluding the financial inability of such party to perform,
shall excuse the perfonnauce by such party for a period of time equal to any such period
of prevention, delay or stoppage; provided, however, that any failure or delay in
perforn~ance by Owner caused by the City's unreasonable denial of any approval sought
by Owner under pa~•agraphs 3a (including Exhibit E), 3d, 3e and/or 3i above shall be
governed by paragraph 4 above, and any disagreements under this provision shall be
resolved as provided in paragraph 17 of this A~ •eement. .4ny party seeking to invoke
this paragraph shall provide written notice to the other party as soon as reasonably
practicable under the circumstances.
7. This Settlement Agreement shall be construed and governed in accordance
with the laws of the State of Florida.
8. All exhibits attached to this Settlement Agreement are incorporated in and
made a part of this Agreement.
9. Actions taken by any of the parties hereto pursuant to or in furtherance of
the provisions hereof shall not be admissible in any proceeding in the Flamingo
Litigation in the event the transactions contemplated hereunder are not performed or
consummated, except as necessary to enforce the terms of this Settlement Agreement.
10. Each party shall bear its own costs and attomeys' fees incurred through
the date of execution of this Settlement Agreement.
] 1. The parties agree they will take any and all actions consistent with the
intent and purpose of this Settlement Agreement and requirements of applicable law, and
execute, aclalowledge, subscribe and deliver any and all further documents and
instruments as may be reasonably necessary to effectuate the purposes of this Settlement
Agreement.
12. Tlie parties agree that the easement to be executed and recorded pursuant
to paragraph 3b of this Settlement Agreement shall run with the land.
13. Each party acknowledges that this Settlement Agreement is a compromise
resolution of disputed claims and agrees that it shall never be treated or used as an
admission or evidence of liability or wrongdoing against either party for any purpose
whatsoever; provided, however, that this Agreement may be admissible in any action or
proceeding to enforce its terms. Each party denies any liability to the other and any
wrongdoing and acknowledges that this settlement is based solely upon their desire to
avoid costs of litigation.
14. The parties represent and warrant that they have executed this Settlement
Agreement freely and voluntarily after having had an opportunity to consult with their
respective attomeys concerning their rights and obligations hereunder.
8
Case 1:08-cv-22419-CMA Document 223-1 Entered on FLSD Docket 12!16/2009 Page 10 of
85
15. This Settlement Agreement shall be deemed drafted by all parties and
there shall be no presumption against any party relating to the drafting of the Settlement
Agreement and the language used herein.
16. Notices. Any notices required or perniitted to be given under this
Agreement shall be in writing and shall be deemed to have been given if delivered by
hand, sent by recognized overnight courier (such as Federal Express) or mailed by
certified or registered mail, return receipt requested, in a postage prepaid envelope, and
addressed as follows:
If to the City at: City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
Attn: City Manager
With a copy to: City of Miami Beach
1700 Convention Center Drive
Miami Beaclr, Florida 33139
Attn: City Attorney
If to the Owner: MCZ/Centnmi Flanungo III, LLC
c/o AIMCO
4582 South Ulster Street Parkway
Denver, Colorado 80237
Attn.: Off ce of General Counsel
With a copy to: Flamingo South Beach Apts.
1504 Bay Road
Miami Beacli, Florida 33139
Attn.: Conunwiity Manager
Notices personally delivered or sent by overnight courier shall be deemed given
on the date of delivery and notices mailed in accordance with the foregoing shall be
deemed given three (3) days after deposit in the U.S. Mail.
17. No action to enforce this Agreement tlrrougl~ arbitration or through the
Court in the Flamingo Litigation, as set forth in this paragraph 17, shall be pursued by
any party to this Settlement Agreement absent 30 days prior written notice of the alleged
breach, followed by an opportunity to cure, which shall be no less than GO days in length.
If the alleged. Ureach is not cured to the satisfaction of the complaining party, tiie parties
shall attempt in good faith to mediate the dispute. As to paragraphs 3c and 3m of this
Agreement, when and if mediation fails, the sole remedy for such a dispute shall be
binding arbitration. The dispute shall be administered in accordance with the then-
cun•ent Commercial Arbitration Rules of the American Arbitration Association ("AAA")
and Florida substantive law shall apply. The parties shall attempt to designate one
9
Case 1:08-cv-22419-CMA Document 223-1 Entered on FLSD Docket 12/16/2009 Page 11 of
85
neutral arbitrator from the AAA or elsewhere. If they aze unable to do so within 3.0 days
after written demand therefor, then the AAA shall designate a neutral arbitrator. No
arbitration healing may proceed without a representative of all parties present. In the
event the AAA's expedited procedures are used, notice Uy telephone must be
supplemented immediately by facsimile or electronic mail. No dispute shall be resolved
on documents alone except by agi•eement between the parties. The arbitration shall be
final and binding, and enforceable with the Court in the Flamingo Litigation. The
arbitrator shall provide a written explanation of the basis of any award. The arbitrator
shall award reasonable attorneys' fees (includuig those of in-house counsel) and costs to
the substantially prevailing party and charge the cost of arbitration to the party which is
not the substantially prevailnig party. For aII other provisions of this Agreement, when
and if mediation fails, enforcement shall be with the Court in the Flamingo Litigation,
unless City and Owner agree in waiting to utilize azbitration. The provisions of this
paragraph 17 apply only to actions to enforce this Agreement; they do not apply to Extra-
Agreement Land Use Remedies as defined in pazagraph 4 above.
18. The parties signing this Settlement Agreement represent and warrant that
they have full and complete legal and Uindu~g authority to enter into this Settlement
Agreement.
19. This Settlement Agreement is binding on the parses hereto and the parties
agree to execute any slid all documents necessary consistent with applicable law and the
City's independent regulatory review authority recognized elsewhere in this Agreement,
to ratify, confirm, and perform the terms and provisions of this Settlement Agreement.
The teens of this Settlement Agreement shall be binding on and inure to the benefit of the
parties, their legal representatives, members, constituents, successors, assigns,
subsidiaries and afnliates, and shall supersede all prior discussions, negotiations and
agreements among the parties concerning settlement. This Settlement Agreement
represents the entire agreement of the parties and shall not Ue modified except Uy a
writing signed by all parties, No third party beneficiaries are intended to be created by
this Settlement Agreement.
20. This Settlement Agreement may be signed in counterparts, and the
signature counterparts of the parties or their authorized representative shall be treated the
same as if this Agreement had been signed by all parties or their authorized
representatives. A facsimile signature shall be deemed the equivalent of an original
signature of a party or its authorized representative.
DATED this !6'"2iay of DQ~*-yet , 2009.
[SIGNATURE PAGES FOLLOW)
10
- - iV1A Document 223-1
ATTEST:
G,~ V~v ~~
Ciry Clerk
APPROVED AS TO FORM AND
L GUAGE FOR EXECI UTION:
•71 or e
STATE OF FLORIDA
COUNTY OF MIAMI-DADE:
SS:
Entered on FLSD Docket 12/16/2009 Page 12 of
85
CITY OF MIAMI BEACH,
a Florida municipal cor oratio
By: i - ~~~
~(.ry oHla ,Mayor
(SEAL)
I HEREBY CERTIFY that on this date, before me, an officer duly authorized in
this State and County to take acknowledgments, personally appeared Hattie Herrera
Bower, well known to me to be the Mayor of the City of Miami Beach, a Florida
municipal corporation, party to the foregoing Settlement Agreement, and that she
acknowledged executing the same freely and voluntarily in the presence of the City Clerlc
under authority duly vested in her by the City of Ivliami Beach and that the seal affixed is
the true seat of the City of Miami Beach.
WITNESS my hand and ofFicial seal in the County and State last aforementioned
tlus ~ day of ~,~ .er', 2009.
Commission No.
My Commission Expires:
20_
„nL;r% tILLIAtdBEAUCHAAi
e,; r MY COMMISS{Old ° pa 539at6
~, '~'}L,-..f-= EJfPIRFS:Api~29,2010
:;'~•..~'~ Omd~'rtau NdM'P~cUndureACn
( gnature)
L~ !l'
(Print name}
Notary Public
State of Florida
11
Case 1:08-cv-22419-CMA Document 223-1
h1Ci:/C1:N"I'RUM f'LAMINGO il, L.L.C..
a Delaware limited liability company
Entered on FLSD Docket 12/16/2009 Page 13 of
85
13~": MORTON TOWERS APARTMENTS, L.P.,
a Delaware limited partnership,
its member
13y: A1MC0 HOLDINGS, L.P.,
a Delaware limited partnership,
its general partner
8y: A1MC0 I-IOLDINGS QRS, iNC.,
a Delaware corporation,
its general partner
fay:
Eric L.1-iilty
Senior Vice Pr •ident, Assistant General
Counsel and A istant Secretary
5 I~.n'J'1? OF COLORADO
C'C>t ~N"I'1' OF DENVER
SS:
~t
I'hu tin•egoing instrument was acknowledged before me this ~~ day of December,
lt)t1~~. by L-:ric 1.. 1•lilty, as Senior Vice President, Assistant General Counsel and Assistant
Secretary ol'MC7_ICENTRUMFLAMlNGO Il, LLG, a Delaware limited liability
~orpor:ition, known to me to be the persons described in and who executed ilre foregoing
instrument. and acknowledged to and before me that they executed said insiniment for
the purposesthercin expressed.
~~.
~~ 1'fNL:SS my hand and official seal, this ~~ day of Uecetnber, 2009.
Notary Public. State of Colorado at Large
~ rnnnission iV'u.:
tit•~ ~~oimnission L->;pires:
~~ - ~-c~~%c3-
12
Case 1:08-cv-22419-CMA Document 223-1
MC!/C'INTRUM 1'LAMINGO III, L.L.C.,
Delaware limited liability company
Entered on FLSD Docket 12/16/2009 Page 14 of
85
13~: MOR"CON "POWERS APARTMENTS, L.P.,
a Delaware limited partnership,
its member
13v: AIMCO ]-IOLDINGS, L.P.,
a Delaware limited partnership,
its general partner
Sy: AIMCO HOLDINGS QRS, CNC.,
a Delaware corporation,
its general partner
13y: ~ ~ ~ _
Eric L. Hilty
Senior Vice President, Assistant General Counsel
and Assistant Secretary
S"I'.~ ('L OI' COLORADO )
SS:
t't)l N I'Y OF Da:NVI'sR )
I~hc I'oreguing instrument was acknowledged before me this ~ day of December.
~OO~t. by uric L. Hilty, as Senior Vice President. Assistant General Counsel and Assistant
Secretary oi'MC%/CLNTRUM i'LAMINGO lll, LLC, a Delaware limited liability
corporation, known to me to be the persons described in and who executed the foregoing
inslnlment. and acknowledged to and before me that they executed said instrument for
the purposes therein expressed.
WI"INESS my hand and official seal, this ate day of tJrL'Pw~a~.¢n. ,
C'~mnnrssion No.:
t\1~ t'ommission aspires:
y.~ ~ ~ ~t ~l ~CLI C ~-
Notary Pttblic, State of Colorado at Large
l3
Case 1:08-cv-22419-CMA Document 223-1
Entered on FLSD Docket 12/16/2009 Page 15 of
85
MOR'I'1)N 'I'OWI:RS nPARTMGN~"S. L.P.,
a l)clatiarr limited partnership
i3v AIMCO 1-IOLDINGS, L.P.,
a Delaware limited partnership,
ils general partner
tap: AIMCO HOLDINGS QRS, 1NC.,
a Delaware corporation,
its gcncral partner
13y: ~ ~ ~ .
Lric L. Hilty
Senior Vice Preside ,Assistant General Counsel
and assistant Secretary
S'I'r\ I'1: Oi~' COLORADO
C'C)l.'N"I'Y OP llLNVF,R
55:
-~t~
The loregoing instrument was acknowledged before me this ~ day of December,
?01)9. by Eric l,. l Iilty, as Senior Vice President, assistant General Counsel and Assistant
tiucretan~ ul'MORI"ON'fOWF;RS AFAR"fMENTS, L.P., a Delaware Limited
Partnership. known to me to be the persons described in and who executed the Foregoing
instrument. and aciniowlcdged to and before me that they executccl said instrument For
the pur{ioses therein expressed.
WI'I'NI:SS my hand and official seal, this ~ day of ,~4rc,x, ~u-~.t. ,
~{)Oct.
Notary Public, State of Colorado at large
C'ummission No.:
:~Ip (.'omnussion Expires: .
~,t _ ~_. ~~ 1 a--
14