99-23076 RESO
RESOLUTION NO. 99-23076
A RESOLUTION OF THE MAYOR AND CITY COMMISSION
OF THE CITY OF MIAMI BEACH, FLORIDA, APPROVING
A SETTLEMENT AGREEMENT BETWEEN THE CITY OF
MIAMI BEACH AND SOUTH BEACH OCEAN PARCEL,
LTD., CONTINUUM COMPANY, L.L.C., AND PORTOFINO
REAL EST ATE FUND, LTD., RESPECTIVEL Y, IN
RESOLUTION OF 11TH JUDICIAL CIRCUIT COURT CASE
NO. 98-10798 CA 30, THIRD DISTRICT COURT OF APPEAL
CASE NO. 98-1645, CERTAIN HARRIS ACT CLAIM(S), A
CERTAIN PETITION FOR CERTIORARI PENDING
BEFORE THE 11TH JUDICIAL CIRCUIT COURT,
APPELLATE DIVISION CASE NO. 98-312AP AND ALL
RELATED LITIGATION AND CLAIMS, AND
AUTHORIZING THE EXECUTION OF ANY NECESSARY
DOCUMENTS.
WHEREAS, South Beach Ocean Parcel, Ltd., Continuum Company, L.L.C., and Portofino
Real Estate Fund, Ltd., (collectively, "Plaintiffs") have asserted claims against the City of Miami
Beach in Case No. 98-10798 CA 30, Case No. 98-1645 and Case No. 98-312 AP, which are pending
in the 11 th Judicial Circuit Court, Third District Court of Appeal and 11 th Judicial Circuit Court
Appellate Division, respectively, and pursuant to S70.001 Florida Statutes (relating to property
legally described on Exhibit "A", attached hereto and made a part hereof); and
WHEREAS, the parties desire to settle all of the outstanding claims, disputes and
controversies between them; and
WHEREAS, the parties have agreed to the terms and conditions as set forth in the Settlement
Agreement attached hereto as Exhibit "B", and made a part hereof; and
WHEREAS, the parties have agreed to dismiss and/or withdraw, as applicable, their actions
and claims against the City upon City Commission approval of the Settlement Agreement, full
execution of the attached Settlement Agreement, and court approval as to those portions of the
Settlement Agreement for which court approval is required.
NOW, THEREFORE, BE IT DULY RESOLVED by the Mayor and City Commission
of the City of Miami Beach, Florida:
Section 1:
The Settlement Agreement attached as Exhibit "B" is hereby accepted and
approved.
Section 2:
The Mayor is hereby authorized and directed to execute the Settlement
Agreement documents and all other necessary and appropriate documents as
approved by the City Attorney to effectuate the agreements contemplated in
the Settlement Agreement.
PASSED and ADOPTED this 17th
day of February
Jli!
,1999.
~~
CITY CLERK ~
DGFlkw (F:\ATTO\GRUDlORD\OCEANPAR.STL)
APPROVED AS TO
FORM & LANGUAGE
& FOR EXeCUTION
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IN THE CIRCUIT COURT OF THE
ELEVENTH JUDICIAL CIRCUIT IN
AND FOR MIAMI-DADE COUNTY,
FLORIDA
GENERAL JURISDICll0N DMSION
CASE NO. 98-10798 CA 30
SOUTH BEACH OCEAN PARCEL,
LTD., a Florida Limited Partnership,
Plaintiff,
vs.
CITY OF MIAMI BEACH,
a Florida municipal corporation,
Defendant.
/
JOINT MOTION TO APPROVE SETTLEMENT
South Beach Ocean Parcel, Ltd., a Florida limited partnership ("Plaintiff'), and the City of
Miami Beach, Florida (the "City"), by and through their undersigned counsel, agree to the terms of
a settlement as more particularly provided herein (the "Settlement"). Plaintiff and City jointly move
for entry of an Order approving the Settlement.
1. Plaintiff asserted certain claims against the City described as follows:
a. South Beach Ocean Parcel. Ltd. v. City of Miami Beach, Case
No. 98-10798 CA 30 in the Eleventh Judicial Circuit Court in
and for Miami-Dade County, Florida (the "Initial Action");
b. Continuum Companv. L.L.P. v. City of Miami Beach and
City of Miami Beach Desi~ Review Board, Case No. 98-312
AP in the Appellate Division of the Eleventh Judicial Circuit
Court in and for Miami-Dade County, Florida (the "Certiorari
Action"); and,
a/J(~/qq: C!-1'ti1 ~Lati'S NOTe:: TH.{S I'~ A- c.opy. Tt-fC; C-tJi.f .
ArTCllLfJttt ~ Of-H(!.(;. HM~ O{}JGtJIJ M..-
CASE NO. 98-10798 CA 30
c. A claim asserted under the Bert J. Harris, Jr. Private Property
Rights Protection Act pursuant to Florida Statutes, Section
70.001 (1995) as set forth in a letter dated June 15, 1998 to
the Honorable Mayor and Members of the City Commission
joined by Porto fino Real Estate Fund, Ltd. (the "Bert Harris
Claim"); and.
2. Defendant has asserted, among other things, that the development agreement dated
October 9, 1984 by and between the City and South Pointe Development Company (the "1984
Development Agreement") expired and is of no further force and effect.
3. City filed an interlocutory appeal described as follows: City of Miami Beach v. South
Beach Ocean Parcel. Ltd., Case No. 98-1645 in the Third District Court of Appeal of Florida (the
"Appellate Action").
4. In order to reduce the risk and expense oflitigation and resolve the various disputes
between them, and for settlement purposes only the parties have agreed to the Settlement, the terms
of which are as set forth below. In the event of the failure of the Settlement for any reason
whatsoever, the parties hereby agree that neither is bound by the terms, provisions, statements,
representations or undertakings set forth herein, nor in the Amended and Restated Development
Agreement referred to hereafter, nor shall said documents be admissible in evidence in any future
litigation, except for an action based on breach of that Amended and Restated Development
Agreement or this Settlement, if the same have failed.
1. For purposes of settlement only, the Plaintiff and City agree that with respect
to the land described on Exhibit "A" attached hereto and made a part hereof (the "Ocean Parcel")
[which is a portion of the larger parcel described in the 1984 Development Agreement], the 1984
Development Agreement has been and is in full force and effect as of the effective date hereof.
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CASE NO. 98-10798 CA 30
However, as relates to all undeveloped lands described in the 1984 Development Agreement other
than the Ocean Parcel but specifically including the "Hinson Parcel" described and referenced therein
as Block 8, the 1984 Development Agreement by its terms has expired. Plaintiff is a successor in
interest to South Pointe Development Company's interest with respect to the Ocean Parcel under the
1984 Development Agreement.
11. Plaintiff received approval for certain development plans for the Ocean Parcel
(the "SOM Plan"), subject to conditions, from the City's Design Review Board on or about
September 15, 1998 and December 8, 1998 pursuant to orders issued under DRB File No. 9611
(collectively, the "DRB Order"). Plaintiff and City have agreed to certain revisions to the. SOM Plan,
as more particularly described and reflected on Exhibit "B" attached hereto and made a part hereof
(the "Amended SOM Plan"). As determined by the City's Planning and Zoning Director, the
revisions do not constitute a substantial amendment to the DRB Order. Plaintiff proposes with
respect to the Ocean Parcel ~at the 1984 Development Agreement, and the concept plan attached
as Exhibit "D" thereto, be amended to accommodate the Amended SOM Plan. In furtherance
thereof, a proposed amended and restated 1984 Development Agreement has been negotiated by and
between the Plaintiff and City to accommodate the Amended SOM Plan upon the Ocean Parcel and
to revise certain additional provisions thereof as agreed upon by Plaintiff and City (the "Amended
and Restated Development Agreement"). Nothing herein shall be deemed to require the City
Administration to recommend approval of the Amended and Restated Development Agreement or
to require the City Commission, or any of its boards or agencies, to approve the Amended and
Restated Development Agreement and the City's only obligation shall be to consider the request to
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CASE NO. 98-10798 CA 30
approve the Amended and Restated Development Agreement.
iii. The Plaintiff and City acknowledge and agree, with respect to the Ocean Parcel only,
that the 1984 Development Agreement constitutes, and the Amended and Restated Development
Agreement will constitute, covenants in lieu of unity of title based upon the recordation of said
instruments. The Plaintiff and City also acknowledge and agree that the prior conveyances of the
Ocean Parcel from Portofino Real Estate Fund, Ltd. to Continuum Company, L.L.P., and Continuum
Company, L.L.P. to Plaintiff have occurred pursuant to the 1984 Development Agreement, that
Plaintiff is a "successor developer" with respect to the Ocean Parcel under the 1984 Development
Agreement, and that the con~eyances do not~ under the terms of the 1984 Development Agreement,
as amended, require the Ocean Parcel be split or divided by means of lot split or other procedure
from the "Main Parcel", as shown on the concept plan attached to the 1984 Development Agreement.
Accordingly, for the limited purposes hereof, under the 1984 Development Agreement, as amended,
the "Main Parcel" will rema~n unified for zoning purposes.
IV. This Settlement is contingent upon the approval of the Amended and Restated
Development Agreement by the City Commission after two public hearings no later than March 17,
1999. In the event the Amended and Restated Development Agreement is not approved by the City
Commission within the time period prescribed herein and this Joint Motion to Approve Settlement
is not approved by the Court on or before March 17, 1999, this Settlement shall automatically
terminate and be deemed null and void. In that event, the Plaintiff and City shall each be returned
to their respective positions prior to the approval of the Settlement (without prejudice with respect
to the statements and agreements contained herein and in the Amended and Restated Development
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CASE NO. 98-10798 CA 30
Agreement, and with respect to agreements or discussions during the negotiation of this Settlement
and the Amended and Restated Development Agreement). Thereafter, all parties shall be free to
reactivate and pursue the Initial Action, Certiorari Action, Appellate Action and/or Bert Harris Claim
and respective defenses thereto.
v. The Plaintiff shall submit, on or before February 3, 1999, a formal request to amend
the 1984 Development Agreement as provided in the Amended and Restated Development
Agreement and shall pay all costs for noticing to effectuate said hearings. Plaintiff acknowledges
that consideration by the Mayor and City Commission of the Amended and Restated Development
Agreement requires two public hearings and approval by th~ City Commission. Upon approval, the
Amended and Restated Development Agreement shall, with respect to the Ocean Parcel, supersede
and replace the 1984 Development Agreement; said approval shall in no way restore the prior
expiration of the 1984 Development Agreement with respect to all other lands included therein, nor
shall said approval impair ~y outstanding obligations in connection with the "Portofino Tower" or
"South Pointe Tower" developments under the 1984 Development Agreement which arose prior to
the expiration of the 1984 Development Agreement.
VI. Plaintiff shall prepare appropriate plans, drawings and specifications based on the
Amended SOM Plan, including an amended concept plan, for submission as part of the amendment
process. The City will issue a building permit for construction of the Amended SOM Plan, based
upon: (i) final approval of the Amended and Restated Development Agreement, (ii) submission of
all required plans and specifications consistent with the Amended and Restated Development
Agreement, the DRB Order and any other development approval required and/or obtained to
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CASE NO. 98-10798 CA 30
authorize said plan; and (iii) submission of an application by Plaintiff for a building permit in
compliance with the requirements of the Amended and Restated Development Agreement. the Code
of the City of Miami Beach, South Florida Building Code, and any other applicable ordinances and
regulations (including the payment of any applicable fees). The foregoing sentence shall not limit
or restrict Plaintiffs obligation to obtain a full building permit as required pursuant to the DRB
Order, however, the terms of the Amended and Restated Development Agreement shall control. No
party need join Plaintiff in any application to the City or any of its boards in connection with the
development of the Ocean Parcel, except any party required under the South Florida Building Code
(e.g., a licensed general contractor).
vii. The Plaintiff and the City agree that the Plaintiffs mitigation obligations with respect
to the Amended SOM Plan shall be as required in the Amended and Restated Development
Agreement.
viii. Plaintiff sha!l dismiss, release and forever waive, at the time set forth within
subsection xi hereof, any claims, including without limitation claims for damages, compensation,
or other relief arising out of the governmental actions referenced in the Bert Harris Claim or any
actions, matters or issues arising out of the 1984 Development Agreement or the development of the
Ocean Parcel. The foregoing release will be in the form contemplated in subsection xi( d) hereof.
For purposes hereof, and for the benefit of the City, Plaintiff hereby represents and warrants that any
and all ofPortotino's rights and interests arising out of or in connection with the Bert Harris Claim
was assigned to Plaintiffby virtue of that certain Assignment and Acceptance Agreement dated April
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CASE NO. 98-10798 CA 30
7, 1998 and that Portofino retained no rights pursuant to or in connection with said claim. Plaintiff
further represents and warrants that it prepared and filed the Bert Harris Claim in its own name and
on behalf of Portofino, its assignor, and, upon assignment by Portofino, any and all rights of
Porto fino were transferred to Plaintiff as assignee (and Porto fino was only included in the Bert
Harris Claim based on its role as assignor and for no other purpose). In addition, Plaintiff represents
and warrants that it is duly authorized to execute any dismissal, release or withdrawal of the Bert
Harris Claim on both its behalf and on behalf of Portofino.
IX. Plaintiff hereby confirms that it has provided to the City, in furtherance of the City
Commission's consideration of this Settlement, a full, written disclosure of all lobbyists and lawyers
active in the matters contemplated in this Settlement, as well as a disclosure of any and all
consideration provided or agreed to be provided directly or on its behalf to third parties to secure
support or reduce opposition to the litigation which this Settlement resolves, the SOM Plan, the
Amended SOM Plan, this Settlement or any other matter contemplated herein.
x. Upon approval of the Settlement by the City Commission (which may precede the
effective date of this Settlement), the parties shall immediately take all steps necessary to effectuate
a standstill of all litigation, including but not limited to the following:
a. The Plaintiff shall cancel the hearing on its Motion for
Attorney's Fees in the Initial Action;
b. The Plaintiff and City shall stipulate that no further action
need be taken in the Initial Action, Certiorari Action or
Appellate Action, and the Plaintiff and City shall jointly
move that the respective judicial authorities take no further
action in said matters, unless and until this Settlement shall
terminate as provided herein; and
c. The Plaintiff and City shall stipulate and agree to a tolling of
all applicable limitations periods attendant to the Bert Harris
Claim and any actions required thereunder.
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CASE NO. 98-10798 CA 30
Xl. Upon formal final approval of the Settlement and the Amended and Restated
Development Agreement by the City Commission and after the expiration of any applicable appeal
period with no appeal having been taken, the Plaintiff and City, respectively shall immediately
effectuate the following:
a. The Plaintiff shall file a notice dismissing the Initial Action
with prejudice, each party to bear its own costs and attorney's
fees;
b. The Plaintiff and City shall stipulate to a dismissal of the
Certiorari Action and the Appellate Action with prejudice,
each party to bear its own costs and attorney's fees;
c. The Plaintiff and City shall stipulate to withdrawal of the Bert
Harris Claim with prejudice, each party to bear its own costs
and attorney's fees; and
d. Plaintiff shall provide in favor of City a general release in
substantially the form attached hereto as Exhibit "C", and
made a part hereof, which shall serve as a waiver of any and
all claims, losses or damages in connection with or arising
from ~i) the 1984 Development Agreement, (ii) the municipal
actions referenced in the Bert Harris Claim, and (iii) through
the effective date hereof, any and all actions or omissions
with respect to or affecting the Ocean Parcel, the development
of the Ocean Parcel and/or the zoning, re-zoning or
development rights thereof.
Xu. The parties agree to take any and all action and execute all documents necessary to
implement the terms of this Settlement. Provided this Joint Motion is approved by the Court, this
Settlement shall be deemed "effective" contemporaneously with the approval by the Mayor and City
Commission, on second reading, of the Amended and Restated Development Agreement. Each party
represents, for the benefit of the other, that the respective legal counsel listed below is fully
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CASE NO. 98-10798 CA 30
authorized to execute this instrwnent and said execution shall be binding on each parties' principal.
Xlll. The court shall retain jurisdiction to enforce the terms of this Settlement.
WHEREFORE, the parties respectfully request that the Court enter an Order in the
form attached hereto approving the Settlement, and retaining jurisdiction to enforce the terms of the
Settlement.
DATED this ~ day Of~99.
MURRAY H. DUBBIN, CITY ATTORNEY
CITY OF MIAMI BEACH
Counsel for Defendant
1700 Convention Center Drive
Legal Department - Fourth Floor
Miami Beach, FL 33139
Telephone: (305) 673-7470
Facsimile: (305) 673-7002
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MU H. DUBBIN
Flonda ar No. 020703
JEAN K. OLIN
Florida Bar No. 334421
ARNALDO VELEZ
Florida Bar No. 149589
F:IA TIOIGRUDIOCNPRCL.DI2
TEW CARDENAS REBAK KELLOGG
LEHMAN DEMARIA & TAGUE, L.L.P.
Counsel for Plaintiff
201 South Biscayne Boulevard, Suite 2600
Miami, FL 33131-4336
Telephone: . (305) 536-1112
Facsimile: (305) 536-1116
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
. 2{i..CIQ'}
Den.
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P AReEL 1
The Ocean Parcel
COII1IIl~ (p.o.c.) at the Scurhe:Lsterly comer ofBiscayne Street (formerly Biscayrie Avenue) and
W~hington Avenue (shown a.:J Miami Avenue on the following described Plat), a.:J .'laid Street and
A venue are shown on the SOUTH BEACH PARK SUBDMSroN recard~d in Plat Beale 6, at Page
77 ofth.c Public Records of Miami-Dade Counry, Flori~ chenc~ run North 87"38'57" East along the
Southerly line of Biscayn.e Street., as .'laid Street is shown on said SOUTH BEACH PA,R."t(
SUBpMSrONS Plat..!l di~..anc= of 717.266 feet Co the Paint of Beginr.ing (F.O.B.) ofthc referenced
Ocean Pared. Tn.: fallowing 17 COtmies are on the dividing line be~e~n the Oc=:m Parc~l and the
Master Parcel, bath within the South Painte Parcel; then~ run South tQ047'35" West, a. distance of
165.214 feet; thence run South 87"38'57" West, a distance of 143.817 fc:et; thence run South
62018'04" West. a. di3tance of24.53 feet; thence run South 27"41'56" East a di:rtance of 18.00 feet;
ch.olce run North 62 "18'04" Ea..cc. a dist:lnce of 2.00 feet; thence run South 27" 41'56" E3..9t. a di..su.'"l.Ce
of38.33 feet; thence run Sourb. 62 "18'04" West.. a. dist.mce of 2.00 feet; thence run South 27<;1 41 '56"
East, a distance of 116.74 fee:; thence run North 62 Q 18'04" East, a distance of27.00 feet; chence run
South 2r41'56" East, a dista.r.c.: of 16.6i fee:; chene: run Sourb. 62018'04" West, a distance of27.00
feet; thcnc: run South 27"41'56' East, a distance of29,33 feet; thence run South 62 q 18'04" West, a
distance ofl45.65 fee:; thence run South 27"41'56" East, a distanc: of 12.00' f~et; thence run South.
62018'04" West.. a. distance of27.93 f~:r; thence run South 270.t1'56" Em a distance of 43.555 feet;
the':lce run South 24023'4" West, a distance of 40.00 fee: co a point on the Southc:-ly tine afthe abave
n::fe;enccl SOuTrl BEAC2 PA...,<..K sUBDrvrsroN, said point being the most Southwesterly came~
of the Oce:m Parc:l, also being the mast Southea3terly comer of tho Master Parcel," bath being part
of the South Pointe Parcel; the:J.ce ::un South 65"36'16" ~ along the SouIhC'1y baw:d.ary of the said
SOUT"rl BE.~CH PAR...'{ StiBDNTsrON a distance of 903.356 feet to an intersection with the
' .
Erosion ControL Line of the AcllU:.uC OC'::l!l, said Line recorded in Plat Book: 105, U Ps.go 62, of the
Public Records of Miami-Dade Couz:Ly, Florida; th~ce run North 00"15'10.3" East. aloeg the Erosion
Control Line, a distance of937.11 feet to an intc:rscctioe wicb. the Southerly line of Biscaync Stre=t
as shawn on the SOUTrl BEACH PA.RK SUBDrvISrON Plat; thence run South 87038'57" West,
along the said Southerly: line afBisc.ayoe Street, il distance of 588.426 fe1:t to the Point ofBcgi.oning
(p.O.B.).
EXHIBIT A
1 of 4
LESS A.."lD EXCEPT:)
r)
Commence (p.O.C.) at the SoutheasterLy Corner ofBiscayne Street (formerly Biscayne Avenue) and
. Washington Avenue, as said Street and Avenue are shawn on the SOUTH BEACH PARle
SUBD[VISION, ",corded in Pia, Book 6, at page n of the Pubtie Reeords ofMi3Illi-Dod. COUnty,
Florids.. and run South 10047'35" West. along the Easterly line of Washington Avenue, a distance of
6.16 feet to a paint on the Southerly line of a 6.00 foot Roadway Dedication. 3aid Dedication recorded
in Otlieial Records Book [2566, at page 2914, o[rhe Pubtie Reco,,", O[Mi3Illi-Dsdo County, Florida;
thence run North 870J8'57" East along the Southerly linc of said 6.00 foot Dedication. along the
existing Southerly line of Biscayno Street. S3 expanded by said 6 foot Dedication. a distance of
638.266 fe~t; thence run South. lOQ47'3S" West, along the westerly line: of Access Easement Parcel
per Official Records BooIe l5370, at page 380, ofthc: Public Records of Miami-Dade Cotl.n!y, Florida.
a distancc of l59.05 feet; thence run South Sr38'57" West, along the southerly line of Master Parcel
I.nfra.muctllre far a. distance of 35.82 fect to the Paint of Beginning (P.D.B.) of the hereinafter
described parcel of land; thc faUOwing 5 Calmes being along che exterior boundary of PHA.SE r
REMAINDE..'t per Official R.:corr:i.s Book 15947, at page 2575, ofche Public Records of Miami-Dade
County, Florida, (1) thence continue South 870]8'57" West, for a distance af29.00 feet; (2) chence
nm South 6r 18' 04" W~t far a distance of24.53 feet; (3); thence run South 27041' 56" East far a
distance of 18.00 feet; (4); thence run NortlJ. 620 l8' 04" East for a distance of 2.00 feet; (5); thence
run South 270 41' 56" East for a di3tance of 30.00 feer; thence run North 26~ la' LO" East far a
disW1ce of60.35 feet to the Paint of Beginning (p.D.B.)
PARCEL 2
The Easement Property
Commence (p.D.C.) at the Southeasterly carner of Btscayno Street (formerly Biscayne Avenue) and
Washington Avenue, as said Street and Avenue are shawn on thc SOtn""rl BEACH PARK
SUBOrvT.SION, recorded in P[at Book 6, at page 77 of the Public Rccords of Miami-Dade County,
Florida., and run South LQ047'35" West, along the Easterly line of Washington Avenuc, il distance of
6.16 feet to it point au the Southerly line of a 6.00 foot Roadway Dedication, said Dedication recorded
in Offiei:!! Reeords Book 12566, at page 2914, of the Pub tie Roeo,,", of Miami-Dade County, Florida;
thence run North. 87038'.57" wt along the Southerly line of said 6.00 coot Dedication. along the
exiatiug Southerly line of Biseayne SIr..t, as expanded by .aid 6 foot Dedication, a ~~ a;
638.266 feet to the Point ofBegiIming (p.O.B.) ofth.e EascmentPropcny; thencc nmSouth to 4735
W ~ a distance of 159,054 feet; thence run North Sr38'57'1 East. a diuarJce o~79.00 .~:c:t; tb.c:n~ run
North. L0047'35" East, a. di.stmce of L65.214 feet to the original Southerly line afBlscayuc Street
(formerly Biscayoc Avenue); thence run South 87038'57" West, along the original Southerly ~ of
Biscayne Strcet, a. discanc12 of3.556 feet; thence run South. 10047'35" WC3t, along the Easterly line
of the said 6.00 foot Dedication. said Dedication recorded in Official Records Book 12566, at page
2914 of the Public Records of Miami-Dade County, Florida. a. distanco of 6.16 fcet to the
Southeasterly carner of said Dedication; thenco run South 87038'57" We:rr. along rhe Southerly line
of said Dedication. a di.3tancc of 75.444 fcet to the Point of Bcgizming (p.O.B.)
EXHIBIT A
2 of 4
PARCEL 3
:')
o
PARCEL 3 BEING A PORTION OF COMMERCIAL PARCEL NO.2
Commence (p.O.C.) at the Southe:uterly comer of Biscayne Street (formerly Bisca.yne Avenue) and
Washington Avenue, as said Street and Avenue are shown on the SOUTH BEACH PARK
SUBDMSION, recorded in Plat Boale 6, at page 77 of the Public ~ords of Miami-Dade CaWlty,
Florida. and run South 10"47'35" Wes~ along the E:tSterly Uno ofWa.mington Avenue, It distanc:: of
6.16 feet [0 a paine an the Sauth~Iy line of a 6.00 foot Roadway Dedication., said Dedication recorded
in Official Reconis Boole 12566, at pagc29t4, of the Public Records of Miami-Dade County, Florida;
thence run North 87038'57" East along the Southerly line of said 6.00 foot DedicJ.tion, along the
existing Southerly line. of Biscayne Street, ~ expanded by said 6 foot Dedication, a distanc~ of
638.266 feet to the Point of Beginning (p.O.B.) of the hereinafter described. parcel of land; the:J.~ run
South 10"47'35" We:rr, along the westerly line of Acce:lS Parcel per Official Records Boole 15370, at
page 380, of the Public R.e--...ords of Miami-Dade County, Florida. a distance of70.93 feet; thence run
South 87038'57" West, along the southerly line of Commercia.!" Parcel No..2 per Official Records
Book: 15947, at page 2575, of me Public Records of Miami-Dade County, Florida, a distance of 55.36
feet; thene~ run North 02021'03" We:n, a distanc:: of69.07 fcerra a paint an rhe Southerly line of the
6.00 foot Roadway Dedication; Chene:: nm Nonh 87038'57" East, along the existing Southerly tine
ofBiscayne Street, a disrance of71.99 fe::~ to the Paine of Beginning (p.O.B.)
PARCEL 4
PARCEL 4 BEING A PORTION OF MASTER PA.H.CEL INFRASTRUCTURE
Commenco (p.O.C.) at the Southc:1Steny comer of Bisca.yno Street (formerly Biscayne AVe:J.ue) a:ld
Washington Avenue, as said Street and Ave::me are shown on. the SOUTrl BEACH PA..~1{.
SUBDMSION, r~orded in Plat Boole 6, at page 77 of the Public Records ofMiami-D~ Couruy,
Florida. and run South [004T35" West, along the Eastdy line of Washington Ave.'1ue, a distance of
6.16 feet to B. point an the Southerly line of a 6.00 foot Roadway Dedication, said Dedication recorded
in Official Records Book 12566, at page 2914, of the Public Records of Miami-Dade County, Florida;
thence run North 87 ~J8'S7" EJ,St along the Southerly line of said 6.00 fooe Dedication. lLlong the
existing Southerly line of Biscayne Strce~ as expanded by said 6 fooe Dedication. a. distance of
638.266 feet; thence run South 10'"47':35" West, along the westerly line of A.cc=rs Parcel per Official
Records Book 15370, at page 380, of the Public Ret:ords of Miami-Dade: COWlty, Florida. a distance
of70.93 feet to the Point ofBoginci,ng (p.O.B.) of the hereinafter desaibed p~l ofland.; thence
continue South 10.47'35" West for II di.stan~ of88.12 feet. theoc: run South. 87Q38'57" W~ along
the southerly line of Master Parcel Infrasttucrure far a distance of 35.82 feet; thenCG run North
02 021'03" W~ a distance of85.82 feet; thence run Nortb. 87'"38'57" E3st, a distance of 55.86 feet
to the Point ofBc:gimUng (P .D.B.) .
PARCEL 5
Non-Exclusive right, privilege and C3ScmQlt to the use and benefit of the Following dc.scnbed
property fot' pedestrian and vehicul.sr ingre:sa and egress as dettned in. and subject to, that Declaration
of Easements fiIcd.Augu5r 5, 1987, in Official k:ords Boole 13368, page 2779, oftbc Public Records
of Miami-Dade County, Florida:
The South Road Easement Area is legally d.:scribed as follows: A part of Blocks 3 and 4, Hark,,!
Avenue, Collins Avenue and. Inlet Boulevard, all as shown on the SOUTH BEACH PAR-~
SUBDrvISrON recorded in Plat Baole 6, at Page 77, of the PubLic Records of Miami-Dade County,
Florida.. mOt'1:: particularly dc:::Jcnbed as follows: .
EXHIBIT A
3 of 4
l:'AKl..l:L A
.~) Q
Commence at the intersection of the Southerly line of SOTIrH BEACH PARK. SUBDMSrON,
recorded in Plat Book: 6, at Page 77, of the Public Records of Miami-Dade County, Florida., and the
Easterly Right-of-Way line of Washington Ivcnu.c (shown oc. the referenced Plat as Miami. Avenue)
and run South 65" 35' 12" East. along the Southerly line ofSOTJrH BEACH PARK SUBDMSION,
a. distance of 16.00 feet The following CW'o (2) courses are on the said southerly line; Thence run
South 6SG 36' 16" East, IS. distance of203.l2 feet to the Point of Beginning (p.D.B.), Thence run South
65" 36' 16" East, a distance of 352.64 feet; Thence run North 24 G 23' 44" East, a distance of 40.00
feet; rnencc run North 65G 36' t6" West, a distance of 352.64 feet; Thence run South 24" 23' 44"
West, a distance of 40.00 feet to the Point of Beginning (p.O.B.).
PARCEL B
Begin at the intersection of the Southerly line of SOUTH BEACH PARK. SUBOrvISrON and the
Easterly Right-of-Way line of Washington Avenue (fonnedy shown on said Rectlrd Plat as Miami
A.venue) and run South 65" 35' 12" East, along the Southerly line of SOutH BEACH PA.R...1{
SUBDIVISION, a distance of 16.00 feet; ~nco continue along said Southerly line South 65" 36' 16"
East, a. distanco of203_12 feet; The:1C': run North 24" 23' 44" East, a distance of 40.00 feet; Thence
run North 27." 41' 56" West, a dUt:ance of29.35 feet; Thence run Sout1l62" 19' 04" West, II. distance
of22.85 feet; Thence run North 65" 36' t6" West, I distanco of165.92 feet; Thence run North 65"
35' 12" West, II. distance of35.11 feet to II. paint on the Easterly Right~f-WII.Y line of Washington
Avenue; Thenc~ run South 10" 47' 35" West, along said Eastdy Rigb.t~f-Way line, a distance of4.12
feet; Thc:nce continue along said E:LSte:"ly Right~f-Wa.y line South 2" 21' 03" E~ a distance of 40.31
fect to the Paint of Beginning (P.O.B.).
PARCEL 6
Rt:.strictive COVenant conce.'lling the fallowing desc:1oed prop~, as defined in and subject to, that
FAR A.ssignmcnt Agrc~ent filed April 8, 1998, in Official Records Boole 18053, page 587. of the
Public RecaI"ds of Miami-Dade County, Florida;
Commcnc:: (p.D.C.) at the South~y comer ofBiscayue Street (formerly Biscaync Avenue) and
Washington Avenue, as 3aid S~ct and Avenue aro shown on the SOurH SEACH PARK
SUBDrvtsION, recorded in Plat Boole 6, at page 77 of the Public ~ords ofDadc CountY, Flori4a.
and run South 10"4n5" W~ along the Easterly line of Washington Avenue, a. distance of6.16 feet
to II. paint on the Southerly line of exiating Bisca.ync Stre=t, as .said line was ct=IICd by II. 6.00 foot
Roadway Dedication. said Dcdi~on recorded in Official R..:cords Boole 12566, It page 2914, of the
Public Records ofMiami-Dadc County, Florida; said point being the Point of Beginning (p.O.B.) of
Commercial Parcel No.1; thc:nco run North. 81" 38' 57" East, along the Southerly line of said
dedication, along the existing Southerly Uno ofBiscayt1e Street, a distan~ of291.65 feet; thence run
South 10" 47' 35" West for ~ distance of63.11 feet; thence run North 790 12' 25" W=t for a. distance
of 6.40 feet; thence run South 5r 38' 57" West for a distance of 249.018 feet; thence run South. 62 Q
~8' 04" WC3t for a. di:rtance of 44.865 feet to II. paint an the E3.stedy line of aforesaid Washington
Avenue; thence run Nonb. lO" 47' ]5" East, along the Easterly line of Washington Avenue, a distance
of 8 1.34 feet to the ?oint of Beginning (P .O.B.).
LESS AND EXCEPT ANY encroachments of rho above-<icscribed Property caused by the
coDSt:ruction afche cxi~g Partotlno Tower, a. Condominium, according to the Declaration thereot:
recorded in Official Records Book l7405, I!! Pago 2757 ofrhe Public Records ofMiami-Da.de County,
Florida..
EXHIBIT A
4 of 4
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SITE PI
_AN
EXHIBIT B
1 of 12
R eEL
r~aRUARY 10. 1999
. . .
- - -
Narnrive de~c:ribi1'li reduCt'ion in fll'or !!rea fT-om I ~ ro I 3M'M'
The reduction in tIoor area has been ac.:omplished by reducing areas in aU of the South, North, and
Perimc:rer building:s, while maintaining the integrity of the design.
[n narrative: form, the reduction in floor are3. has been ac::omplishcd in the following ways:
· The area oftbe South BUilding has been redue--Q trom 84J.600 to 721.291 square: feet. a
reduction of 122.JQ9~ a reduction from 45 stories to 39 stories has abo been made.
· The area of me North Building h&3 been reduced from 481,652 to 471,623 ~UlU'e feet. a
reduc:ion of 10,029; this reduction h&3 been made with an inCTe:cIc iTom 36 3toriC:i to 37
stories.
· The area of the P:rimc:tcr Buildings at the pedestal has bei:n reduced trom 199,620 to 80,006
square fc::r, a n:duc:ion of) 19,6) 4. Perimeter buildings have.been reduced proportionately
throughout.
· The area. ofche retail SpllQ: has been reduc:d from 25,000 to 15,080 square feet. a l"educ:ion
of 9,920.
· The: area of the Club and 8C::1.Ch F.ac::Iities has bCC'l n:duc::d from 55.750 to 12,000 square f=t.
a reduction of 43.750.
· The totoll area of the development has been reduced a-om 1,605,622 to 1.300,000 square feet.
a reduction of 30,5. 6.22.
1L:'R.'Dc\OATA\CUN"1'J:lI"'~.'\AaATI y~
EXHIBIT B
2 of 12
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rAR CALCULATIONS
EXHIBIT B
3 of 12
LEVa. 0Jl(
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~BIT B
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FAR CALCULATIONS
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5 of 12
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EXHIBIT B
6 of 12
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o C E A N PAR eEL
FAR CALCULATIONS
EXHIBIT B
7 of 12
I.E'<U ""t
F'EIRUAIIY 10. 19"
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NORTH BUILDING
LE:VELS 5-a
'7.094 SO. .T.
1'I1,,,t...~ 6a.37s..so.:pr.
Lf:VELS 's-' a
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'O'"t... :59.204 .so~ r.r~:~
Lf:VELS 21-25
13.Zl!4 so. F'T.
!'O,,,t... '66.420' sci..:"F:r::
1'11.",1"
Lf:VE:LS 33-35
8.990 so. n.
26.970 so,. Ft:
LE:VE:LS 9-14
14.801 So. F'T.
'O'''l... 88.806::S0. F'T,'.
Lf:VE:LS 19- 20
14.801 so. F'T.
tom. . 29,502 SO..fT. .
Lf:VELS 26-52
11.131 SO. .T.
to'AL. ..82; 117 SO. fT.
.
Lf:VtLS 36-37
7.950 SO. n.
to'AL' ., 8,900 .SO; .F'T..
SOUTH BUILDING
Lf:VE:LS 5-25
20.54J sa. n.
,<:o,." 49J.0,32 so. F'T.
LEVELS 50-54
18.Z00 SO. .T.
1'I1'.t... 91.000 SO. F'T..
LE:VELS :I6le35
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r(tr.l(.: o. 34.850 SO. ~.
TOTAI......~~
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LEVELS 29
15.200 so. n.
rem, 18.200 SO. .n;
LEVELS 35ld7
17.425 SO. Fl.
T'O'"'' 34.850 SO. F1~
LEVELS 39
15.209 SO. Fl.
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.EaRUARY 10. 1999
E A N PAR C
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EXHIBIT B - .
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EXHIBIT B
10 of 12
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EXHIBIT B
11 of 12
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EXHIBIT B
12 of 12
FtaRUAWY 10. ""
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CASE NO. 98-10798 CA 30
EXHIBIT "e"
General Release
KNOW ALL MEN BY THESE PRESENTS: That, South Beach Ocean Parcel, Ltd., a
Florida limited partnership, and Continuum Company, L.L.P., a Florida limited liability partnership,
(to the extent of each party's interest and collectively, "first party") for and in consideration of the
sum ofTen Dollars ($10.00), and other good and valuable consideration, received from or on behalf
of City of Miami Beach (the "second party"), the receipt of which is hereby acknowledged,
(Wherever used herein the terms "first party" and "second party" shall include singular and
plural, heirs, legal representatives, and assigns of individuals, and the successors and assigns
of corporations, wherever the context so admits or requires.)
HEREBY for itself and its successors and assigns, remise, release, acquit, satisfy, and forever
discharge the said second party, of and from any and all manner of action and actions, cause and
causes of action, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties,
covenants, contracts, controversies, agreements, promises, variances, trespasses, damages,
judgments, exe~uti6ns, claims and demands whatsoever, in law or in equity, which said first party
ever had, now has, or which any successor or assign of said first party, hereafter can, shall or may
have, against said second party, for, upon or by reason of any matter, cause or thing whatsoever,
from the beginning of the world to the day of these presents (each a "Claim", collectively the
"Claims"), including, without limitation, any and all claims, losses or damages in conneCtion with
or arising from (i) the 1984 Development Agreement, (ii) the municipt!l actions referenced in the
Bert Harris Claim, (iii) any and all actions or omissions with respect to or affecting the Ocean Parcel,
the development of the Ocean Parcel and/or the zoning, re-zoning or development rights thereof, and
(iv) the allegations set forth or contained in South Beach Ocean Parcel. Ltd. v. City of Miami Beach.
Case No. 98-10798 CA 30 and Continuum Company. L.L.P. v. City of Miami Beach and City of
Miami Beach Desi~n Review Board. Case No. 98-312 AP. (Capitalized terms have the same
meanings as set forth in that certain Amended and Restated Development Agreement between South
Beach Ocean Parcel, Ltd. and the City of Miami Beach dated , 1999.)
First party further declares and acknowledges that no representations made by any agent or
attorney of second party concerning the validity or merit of any Claim has induced first party to
make this General Release, and that first party is acting upon its own best judgment, belief and
knowledge of the nature and validity of any and all Claims or potential Claims in making this
General Release. This General Release shall be governed by the laws of the State of Florida.
With respect to each Claim released by this General Release, first party hereby represents and
warrants that it has not in any manner assigned, pledged or otherwise transferred to anyone any
interest in any Claims released hereby, and that all such Claims described herein are hereby fully and
finally discharged, settled and satisfied.
CASE NO. 98-10798 CA 30
IN WITNESS WHEREOF, first party, has hereunto set its hand and seal this _ day of
February, 1999.
Signed, sealed and delivered in the presence of:
South Beach Ocean Parcel, Ltd., a Florida
limited partnership, for itself
By:
Print Name:
Print Title:
Print Name
Print Name
Continuum Company, L.L.P., a Florida limited
partnership
Print Name
By:
Print Name:
Print Title:
Print Name
STATE OF FLORIDA )
)SS:
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me this day of
1999 by , ~ general partner of South Beach Ocean Parcel, Ltd., who is personally
known to me or who has produced as identification and
who ( )did ( )did not take an oath.
Notary Public, State of Florida
Print Name:
Seal:
My commission expires:
CASE NO. 98-10798 CA 30
STATE OF FLORIDA )
)SS:
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me this day of ,
1999 by , as general partner of Continuum Company, L.L.P., who is personally
known to me or who has produced as identification and
who ( )did ( )did not take an oath.
Notary Public, State of Florida
Print Name:
Seal:
My commission expires:
CASE NO. 98-10798 CA 30
EXHIBIT" C"
Limited Release
KNOW ALL MEN BY THESE PRESENTS: That, Porto fino Real Estate Fund Ltd., a
Florida limited partnership ("first party") for and in consideration of the sum ofTen Dollars ($10.00),
and other good and valuable consideration, received from or on behalf of City of Miami Beach (the
"second party"), the receipt of which is hereby acknowledged,
(Wherever used herein the terms "first party" and "second party" shall include singular and
plural, heirs, legal representatives, and assigns of individuals, and the successors and assigns
of corporations, wherever the context so admits or requires.)
HEREB Y for itself and its successors and assigns, remise, release, acquit, satisfy, and forever
discharge the said second party, of and from any and all manner of action and actions, cause and
causes of action, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties,
covenants, contracts, controversies, agreements, promises, variances, trespasses, damages,
judgments, executions, claims and demands whatsoever, in law or in equity, which said first party
ever had, now has, or which any successor or assign of said first party, hereafter can, shall or may
have, against said second party, for, upon or by reason of any matter, cause or thing whatsoever, from
the beginning of the world to the day of these presents (each a "Claim", collectively the "Claims"),
but only as to the municipal actions referenced in the Bert Harris Claim with respect to the Ocean
Parcel. (Capitalized terms have the same meanings as set forth in that certain Amended and Restated
Development Agreement between South Beach Ocean Parcel, Ltd. and the City of Miami Beach
dated , 1999.)
First party further declares and acknowledges that no representations made by any agent or
attorney of second party concerning the validity or merit of any Claim has induced first party to make
this Limited Release, and that first party is acting upon its own best judgment, belief and knowledge
of the nature and validity of any and all Claims or potential Claims in making this Limited Release.
This Limited Release shall be governed by the laws of the State of Florida.
With respect to each Claim released by this Limited Release, first party hereby represents and
warrants that it has not in any manner assigned, pledged or otherwise transferred to anyone any
interest in any Claims released hereby, and that all such Claims described herein are hereby fully and
finally discharged, settled and satisfied.
CASE NO. 98-10798 CA 30
IN WITNESS WHEREOF, first party, has hereunto set its hand and seal this _ day of
February, 1999.
Signed, sealed and delivered in the presence of:
Porto fino Real Estate Fund, Ltd.,
a Florida limited partnership
Print Name
By:
Print Name:
Print Title:
Print Name
STATE OF FLORIDA )
)SS:
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me this day of
1999 by , as general partner of Porto fino Real Estate Fund, Ltd., who is personally
known to me or who has produced as identification and
who ( )did ( )did not take an oath.
Notary Public, State of Florida
Print Name:
Seal:
My commission expires:
"' I
CASE NO. 98-10798 CA 30
JOINDER
The undersigned Portofino Real Estate Fund, Ltd., a Florida limited partnership
("Portofino"), as assignor to Plaintiff and pursuant to sub-paragraph 4 (viii), hereby joins into the
foregoing Joint Motion to Approve Settlement for the limited purposes of aCknOWledgi~~gits ~f\-
agreement Ie tIoo I...... 8R<I prilvi3iono of ...r.I- sub-paragraph (viii) 11ft<! to provide the release ~
referenced therein, as applicable to the undersigned.
C~ /lt~
DATEDthis~aayof~, 1999.
TEW CARDENAS REBAK KELLOGG
LEHMAN DEMARIA & TAGUE, L.L.P.
Counsel for Porto fino solely in connection
with the Bert Harris Claim
201 South Biscayne Boulevard, Suite 2600
Miami, FL 33131-4336
Telephone: 305) 536-1112
Fac' 1 . 5) 536-1116
ft
!
CASE NO. 98-10798 CA 30
SECOND JOINDER
The undersigned Continuum Company, L.L.P., a limited liability partnership ("Continuum"),
hereby joins into the foregoing Joint Motion to Approve Settlement for purposes of acknowledging
its agreement to the terms and provisions of the Settlement, and by joining herein, agrees to be
bound by the provisions of the Settlement, including without limitation any and all obligations to
take further actions, execute instruments, and provide the release referenced therein, as applicable
to the undersigned.
DATED this ~y O~999.
TEW CARDENAS REBAK KELLOGG
LEHMAN DEMARIA & TAGUE, L.L.p.
Counsel for Continuum
201 South Biscayne Boulevard, Suite 2600
Miami, FL 33131-4336
Tele (305) 536-1112
F si . . 5) 536-1116