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Settlement Agreement SETTLEMENT AGREEMENT Plaintiffs Nancy Bona, Mary Michel; and Robert and Rita Swedroe ( "Plaintiffs ")' and the City of Miami Beach ( "City "), for themselves and all persons or entities claiming by or through them, and their successors in interest and assigns, hereby enter into this Settlement Agreement (the "Settlement Agreement "), dated D �; «, to settle Bona et al v. City of Miami Beach, Case No. 07 -32876 CA ,21, Circuit Court, Miami -Dade County, Florida, (the "lawsuit ") as follows:. RECITALS WHEREAS, Plaintiffs own individual single family residential homes within the ' City of Miami Beach, west of the North Beach Recreation Corridor ( "Corridor ") between 77 and 79h Streets; and t WHEREAS, Plaintiffs sued the City in the lawsuit raising concerns about the impact of the Corridor on their riparian rights, and their homes; and WHEREAS, Plaintiffs 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 Lawsuit, without any party admitting liability, as set'forth herein; and WHEREAS, the parties believe it would be in their best interests and the interests of the citizens and residents of. Miami .Beach to agree to the provisions of this Settlement Agreement. NOW, THEREFORE, in consideration of the mutual agreements, undertakings and representations contained in this Settlement Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties, Plaintiffs and the City agree as follows: A. The foregoing recitals are true, accurate and correct and are incorporated herein by this reference. B. General Settlement Conditions. References to "Corridor" on this Settlement Agreement shall be to the North Beach Recreation Corridor between 77 and 79 Streets, Miami Beach, .Florida. The. North Beach Recreation Corridor in its entirety or portions thereof is referenced as such. 1. The Corridor shall remain as constructed; except that if a natural weather event completely destroys the Corridor or, more than 50% of its length, the City shall ' use reasonable efforts to submit a permit application for DEP approval to move the Corridor further eastward on the western side of the dune as DEP may allow. This commitment will be recorded as a covenant running with the land on the lots of Plaintiffs. 1 While another Plaintiff was a party to the lawsuit, it has voluntarily dismissed its claim and is not a party to this Settlement Agreement. References herein to "Plaintiffs refer to the Plaintiffs who are. party to this Settlement Agreement, as evidenced by their signatures at the end of the i document. 1 i Settlement Agreement Bona v. City of Miami Beach Page 2 of 7 { Plaintiffs may challenge, at their sole cost and expense, DEP's decision not to allow eastward movement of the Corridor, but shall not challenge any replacement permits for the Corridor as it presently exists, or any other portion of the North Beach Recreation Corridor. 2. City shall retain an independent coastal engineer, not currently under contract with the City,- as may be recommended by Coastal Systems International, Inc., to provide an opinion regarding whether the Corridor is designed and constructed in compliance with all applicable regulations and codes at the time of permit issuance, and to recommend reasonable improvements, if any, that are necessary to protect the adjacent properties during catastrophic storm events. A copy of the opinion will be furnished to Plaintiffs, and may also be furnished to the City Commission. The cost'of such opinion shall not exceed $5,000. The City Manager shall consider the opinion, but is not obligated to undertake any further action. 3. The Plaintiffs shall present design drawings and estimates, for construction to be performed on private land and /or land up to the Corridor, for improved access between their properties and the Corridor. ' City will conduct the permitting process and settlement is subject to City Commission, ; or City Manager -and City Attorney approval of construction ' cost (including landscaping) of up to $15,000 per property for access improvements. on public and private property of settling Plaintiffs: If City Commission ' does not approve this portion of settlement agreement, then settling parties shall return to mediation, and if not resolved, then case proceeds and settlement fails. The City, in its sole discretion, may do the work contemplated by this paragraph. Plaintiffs ` acknowledge and recognize' that design drawings are subject to review and final approval of City for aesthetics, value engineering and compliance with applicable requirements of law, including the City Code. 4. *The City is to provide reasonable maintenance of the Corridor, on public property only, including graffiti, and replace bollards as needed to minimize vehicular access on Corridor. Plaintiffs shall contact the Director of Public Works in writing to inform of any maintenance conditions needed to be addressed. 5. The City shall make one application on behalf of the Plaintiffs to DE=P. for a cut through the dune to provide. access (with snow fence); construction shall not exceed a maximum cost of $2,000, design drawings to be prepared by City (or a consultant of City's choice). Thereafter, Plaintiffs may apply to DEP at their sole cost and expense, if City's application is denied. 6. City will, post signage and replace. bollards to prohibit unauthorized motorized vehicular use of the Corridor, except police, emergency and maintenance vehicles. 7. City will post signage advising that beach is closed from midnight to 5:00 a.m. The City, in its sole discretion, shall determine the hours of corridor lighting. 8. Plaintiffs shall have access for. nonmotorized and motorized boats (with up to 10 hp motors if permitted by code), to the Ocean, through the street -end crossovers of the dune, subject to City Code sections 82 -467 and -468, and other applicable code provisions. Settlement Agreement Bona v. City of Miami Beach Page 3. of 7 9. Any new or renourished landscaping of dunes is to below level ground vegetation, as mandated and approved by DER The City will not utilize any new trees or seagrapes to block views of the Atlantic Ocean unless mandated by DEP for the renourishment of the dune. 10. The City will continue to use reasonable efforts to enforce beach closing hours, and other applicable laws on the beach near the Corridor. 11. The, Plaintiffs shall file a Voluntary Dismissal with Prejudice regarding their claims for damages based on taking and all claims that were or could have been brought in litigation, and will exchange releases as to all claims that were or could have been brought related to the Corridor. Nothing in this Settlement Agreement or any Release will release the City or serve to bar.any future claim of Plaintiff(s) for damage to property caused by the Corridor resulting from any future storm event. Corridor remains as is, subject to paragraph 1. Parties shall bear their own costs and attorneys' fees. 12. City Staff will recommend settlement of this matter to the City Commission. 13. Plaintiffs shall provide design drawings of #3 to City staff within 30 days of execution of this Settlement Agreement. The City may grant reasonable extensions for the submission of the design drawings. If Plaintiffs fail to submit drawings within 180 days of November 17,201 0, .Plaintiffs shall waive their rights for the City to assist in permitting and funding connections between the Corridor and their properties, and across the dune, under paragraphs #3 and #5 hereof. Thereafter, the Plaintiffs may proceed on their own, at their own cost and expense, to obtain necessary permits for such connections and to construct such connections, subject to required regulatory approvals. 14. The sole and exclusive procedure for resolving disputes concerning compliance with the terms of this Settlement Agreement shall be as follows: First, to. bring in writing alleged noncompliance to the attention of the City Manager. Second, if not resolved after thirty days to the satisfaction of the parties, the parties agree.to,bring the.matter of alleged. noncompliance with the terms of this settlement to the City Commission's Committee of the Whole for resolution. ' Third, if the alleged breach is not cured to the satisfaction of the complaining party, the parties shall attempt in good faith to mediate the dispute. If the dispute is not successfully mediated, the parties shall retain any rights to institute an independent action to enforce the terms of this Settlement Agreement in Circuit Court: 15. The parties acknowledge that any requests for approval necessitated by this Settlement Agreement, whether by the . City or its boards or staff, acting in its /their governmental 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. 16. The ' terms of this Settlement Agreement, other than and subsequent to the permitting and construction provided for pursuant to paragraphs 3 and 5, are subject to the availability of funding and resources of the City, however, the lack of funding may delay the city's performance for a reasonable time, but shall not excuse its performance: Settlement Agreement Bona v. City of Miami Beach Page 4 of 7 In any event, levels of service shalt remain commensurate with levels of service provided throughout the North Beach Recreation Corridor. 17. This Settlement Agreement is not and shall not be construed as a development permit, development approval, development order or authorization to commence development, nor shall it .relieve the Plaintiffs of any obligations to obtain necessary permits and any other development approvals that may be required under applicable law. The parties hereto recognize and ' agree that the failure of this Settlement Agreement to address a particular permit, permitting condition, term or restriction shall not relieve the Plaintiffs of the need to comply with any applicable law governing permitting requirements, conditions, terms or restrictions notwithstanding any such omission. 18. Any prevention, delay or stoppage due to strikes, lockouts, labor disputes, acts of God', inability to obtain labor or materials or reasonable substitutes therefore, riot, civil commotion, fire or other casualty, and other causes beyond the reasonable control of the party obligated to perform, excluding the financial inability of such party to perform, shall excuse the performance by such party for a period of time equal to any such period of- prevention, delay or stoppage. Any party seeking to invoke this paragraph shall provide written notice to the other party as soon as reasonably practicable under the circumstances. 19. This Settlement Agreement shall be construed and governed in accordance with the laws of the State of Florida. Any action brought regarding the Settlement Agreement shall be instituted in the Eleventh Judicial Circuit Court of Miami -Dade County, Florida. 20. Actions taken by any of. the parties hereto pursuant to or in furtherance of the provisions hereof shall not be admissible in any legal proceeding in the event the transactions contemplated hereunder are not performed or consummated, except as necessary to enforce the terms of this Settlement Agreement. 21. ..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, acknowledge, subscribe and deliver any and all further documents and instruments as may be reasonably necessary to effectuate the purposes of this Settlement Agreement. 22. 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 Settlement Agreement may be admissible in any 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. 23. 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 attorneys concerning their rights and obligations hereunder. Settlement Agreement Bona v. City of Miami Beach Page 5 of 7 24. 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. 25. Notices. Any notices required or permitted to be given under this Settlement 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 Beach, Florida 33139 Attn: City Attorney If to the Plaintiffs: Ms. Nancy Bona 7837 Atlantic Way Miami Beach,.FL 33141 -2120 Ms. Mary Michel 7845 Atlantic Way Miami Beach, FL 33141 Mr. and Mrs. Robert Swedroe 7747 Atlantic Way Miami Beach, FL 33141 With a copy to: Frank Wolland, Esq. Law Office of frank Wolland 12865 West Dixie Highway 2 " Floor North Miami, Florida 33161 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 upon receipt by the parties. 26. The parties signing this Settlement Agreement represent and warrant that they have full and complete legal and binding authority to enter into this Settlement Agreement. 27. This Settlement Agreement is binding on the parties hereto and the. parties agree to execute any and all documents necessary consistent with applicable law and the City's independent regulatory review authority recognized elsewhere in this Settlement Agreement, to ratify, confirm, and perform the terms and provisions of this Settlement Agreement. The terms of this Settlement Agreement shall be binding on and inure to the Settlement Agreement Bona v. City of Miami Beach Page 6of7 benefit of the parties, their representatives, members, constituents successors, assigns, subsidiaries and affiliates, 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 be modified except by a writing signed by all parties: No third party beneficiaries are intended to be created by this Settlement Agreement. 28. 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 Settlement 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. Wherefore, the parties approve the above terms and enter into settlement of this lawsuit between them as provided above as of the date first entered above. WITNESSES: Nancy Bona Mary Michel AAA Robert S e r VO . I i M v � Rita Swedroe zoo tow Settlement Agreement Bona v. City of Miami Beach Page 7 of 7 ATTEST: CITY -OF MIAMI BEACH, a Florida municipal corpora i 'n City Clerk Mayor Dated:-. b4 Cce- 9 ey- q 0 , 2-010 APPROVED AS TO FORM AND LANGUAG D FOR EXECUTION: r rney F: \atto \HELG \LITIGATION \Bona v CMB \Settlement \Settlement Agreement 11- 10- 2010.doc - i