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Modification to Settlement Agreement c;2� Tt 3 MODIFICATION TO SETTLEMENT AGREEMENT THIS MODIFICATION TO SETTLEMENT AGREEMENT (the "Modification") is made and entered into as of the lyLkvay of February 2013, by and among: (1) the City of Miami Beach, a Florida municipal corporation (the "City") and (2) 120 Ocean Drive, LLC, a Florida limited liability company("Ocean"). Introduction and Background A. The Lawsuits and Claims. Lawsuits and claims by Micky Biss, individually, and USA Express, ,Inc., a Florida corporation, were settled pursuant to a Settlement Agreement dated July 26, 2006 (the "Settlement Agreement") between The Congress Group, Inc., a Massachusetts domestic profit corporation, Ocean Drive, CFI, LLC, a Delaware Limited Liability Company (collectively the "Congress Group") and the City. B. The Land and the Project. The Settlement Agreement relates to (i) those parcels of land (the "Land") located at 120 - 130 Ocean Drive within the City, as particularly described in Exhibit "A" attached hereto and incorporated herein by reference, and (ii) a residential project with associated parking and retail/restaurant use (the "Project") approved to be constructed on the Land under Building Permit No. B-9900085 (modified to B-0001810, B-0101591,and then B0702576)(the "Master Permit"). C. Successor and Intentions. Ocean is the successor in interest to the Congress Group, having purchased fee simple title to the Land on October 9, 2012. Ocean is the developer of the Project, as modified as proposed herein. Ocean represents that this Modification is not inconsistent with any mortgage(s), assignment(s) of rents, or other security interest encumbering the Land. D. Ocean shall process a revision to the Master Permit in accordance with plans prepared by the architectural firms of Bennello, Ajamil &. Partners, Inc. and Rene Gonzalez Architect, Inc. (the "Revised Final Schematic Design")."), The Revised Final Schematic Design has been reviewed by the City's Planning Director, approved by the City's Historic Preservation Board (HPB) on January 15, 2013 file no. 7346 (the staff report to the HPB is attached hereto as Exhibit `B, " and incorporated herein by reference).Following approval of this Modification, the Planning Board (PB) will consider for approval Owner's application for a conditional use permit for mechanical parking. E. The Development The Project was designed as a building that was 204' in height, excluding mechanical structures, with a five-story parking pedestal. The Revised Final Schematic Design proposes to modify the Proj ect by reducing heights of the building's tower and pedestal, decreasing the density of the development program, and by incorporating elevations and landscaping that are intended to be harmonious with the surroundings. The resulting building is approximately ten feet (10') lower in height, excluding mechanical structures, than the Project, has a two-story mechanical parking garage, ten (10) residential units (reduced from thirty-five (35) units in the Project as originally approved), pool deck, one commercial space, which is approximately 700 square feet and one meeting room (the "Development"). The Revised Final Schematic Design and Development are completely within the scope of the Project and do not divest Ocean's vested rights in the Land and the Permit. Therefore, the Development shall retain the approval status contemplated in the Settlement Agreement. NOW, THEREFORE, the City and Ocean, the successor in title to the Land and the vested rights in the Land and the Master Permit, in consideration of the mutual promises and covenants of the parties made herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, agree to modify the Settlement Agreement as follows: 1. Recitations. The foregoing recitations are true and correct and are incorporated herein by this reference. 2. Development Approvals. (a) Conditions to Obli ag tion. The obligations of Ocean under this Modification are specifically conditioned upon the City and/or its departments acting in their independent, quasi-judicial, administrative, and/or legislative governmental capacity, as applicable, to consider and formally approve the Revised Final Schematic Design, by modifying the Master Permit to allow construction of the modified Project in accordance with building permit plans that are substantially in accordance with the Revised Final Schematic Design. (b) Applications for Development Approvals. Ocean has applied for development approvals from the City's HPB and PB (the "Development Approvals"). The application to the HPB sought and obtained approval of the Revised Final Schematic Design, and the application to the PB seeks approval of the mechanical parking proposed in the Revised Final Schematic Design. The parties shall cooperate with each other in continuing to timely submit all required documentation and to process all necessary Development Approvals from the City. The Development Approvals shall be deemed approved at such time as each such approval becomes final and nonappealable. (c) Revised Permit. (i) After obtaining the Development Approvals, Ocean will submit revised building permit plans in order to revise the Master Permit (the "Revised Master Permit"). The Revised Master Permit shall be deemed approved when the Revised Master Permit becomes final and nonappealable. The Revised Master Permit shall be a revised or new building permit, which shall require either a revised or new building permit application, at the sole discretion of the City's Building Official. Ocean agrees to pay such fees as the Building Official determines are appropriate to the review of the application for the Revised Master Permit. (ii) On or before the date that is six (6) months from the full execution of this Modification and the approval thereof by the City Commission, Ocean shall submit plans required for the City to issue the Revised Master Permit consistent with the Revised Final Schematic Design. This date may be extended Page 2 by the City Manager for good cause shown. After the submission of such plans, the City may issue or deny the Revised Master Permit, or provide written comments concerning the plans, in the normal course of business. The review by the City's Building Department of the plans to be submitted by Ocean to the City shall be pursuant to the Florida Building Code and the Florida Fire Prevention Code, including all technical codes incorporated therein, and all other applicable laws, regulations and codes. (d) Vested Rights. The parties agree that (i) the Project continues to be grandfathered and vested,both as to design and use, as of the zoning in place at the time that Biss submitted their completed application in 1993 and received Design Review Board approval; (ii) the Revised Final Schematic Design,as approved by the HPB,is substantially within the scope of the Master Permit and Ocean may obtain a Revised Master Permit(as determined by the Building Official) to construct the Development pursuant to the Revised Final Schematic Design, and (iii) Development Approvals of the Revised Final Schematic Design, and approval of the Revised Master Permit,will not divest Ocean's vested rights in the Master Permit,which permit remains grandfathered. (e) Exercise of City Discretion. The parties recognize and agree that certain provisions of this Modification will require the City and/or its boards, department or agencies, acting in their governmental capacity, to consider certain governmental actions as set forth in this Modification. All such considerations and actions shall be undertaken in accordance with established requirements of federal or state statutes and City or county ordinances, or other applicable law, in the exercise of the City's jurisdiction under its police power, as well as the requirements of this Modification. Nothing in this Modification is intended to limit or restrict the powers and responsibilities of the City in acting on applications for any of the Development Approvals by virtue of the fact that the City may have consented to the filing of such applications or by virtue of the City's entering into this Modification. The parties recognize that the City, and its boards and departments, retain sole discretion under their police powers as to whether to grant or deny the applications for Development Approvals. The parties fully recognize and agree that these proceedings shall be conducted openly, fully, freely, and fairly in full accordance with law and with both procedural and substantive due process. 3. Miscellaneous Provisions. (a) No Permit. This Modification is not and shall not be construed as a development permit, development approval, development order or authorization to commence development, nor shall it relieve Ocean of the obligations to obtain any additional or other development approvals that are required under applicable law and under and pursuant to the terms of this Modification. (b) Further Assurances. It is the intent and agreement of the parties that they shall cooperate with each other to effectuate the purposes and intent of, and to satisfy their obligations under, this Modification in order to secure to themselves the mutual benefits created under this Modification; and, in that regard, the parties shall execute such further documents as may be reasonably necessary to effectuate the provisions of this Modification. The parties agree to cooperate with each other so that Ocean may construct the Page 3 building reflected in the Revised Final Schematic Design. (c) Omissions. The parties hereto recognize and agree that the failure of this Modification to address a particular permit, condition, term, or restriction shall not relieve Ocean of the necessity of complying with the law governing such permitting requirements, conditions,terms, or restrictions notwithstanding any such omission. (d) Notices. Any notices required or permitted to be given under this Modification 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 Ocean: 120 Ocean Drive, LLC 2675 South Bayshore Drive Coconut Grove, FL 33133 Attn.: David Martin With a copy to: Bercow Radell&Fernandez,P.A. 200 S.Biscayne Boulevard, Suite 850 Miami, Florida 33131 Attn.: Michael W. Larkin, Esquire Notices personally delivered or sent by overnight courier shall be deemed given on the business 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. 4. Construction. (a) This Modification shall be construed and governed in accordance with the laws of the State of Florida. All of the parties to this Modification have participated fully in the negotiation and preparation hereof and, accordingly this Modification shall not be more strictly construed against any one of the parties hereto. (b) In construing this Modification, the use of any gender shall include Page 4 every other and all genders, and captions and section and paragraph headings shall be disregarded. (c) All of the exhibits attached to this Modification are incorporated in, and made a part of, this Modification. 5. Time of Essence. Time shall be of the essence for each and every provision hereof. 6. Entire Agreement. This Modification, together with the documents referenced herein, constitute the entire agreement and understanding among the parties with respect to the subject matter hereof, and there are no other agreements, representations or warranties other than as set forth herein. This Modification may not be changed, altered or modified except by an instrument in writing signed by the party against whom enforcement of such change would be sought. 7. Successors and Assigns; Third Party Beneficiaries. The benefits, rights, duties and obligations given to the parties under this Modification shall inure to the benefit of and bind their successors in title and assigns. The parties acknowledge and agree that except only for the foregoing successors and assigns,there are no third party beneficiaries under this Modification or the Exhibits attached hereto. 8. Binding_Agreement. The parties hereto understand and agree that this Modification will not be binding on the parties to this Modification until such time as the City Commission of the City of Miami Beach has approved same, and the Modification is fully executed by the parties to the Modification. 9. Authority to Sign. Each of the signatories hereto represents that he or she has authority to execute this Modification and to bind the party on whose behalf he or she has signed. 10. Attorney's Fees and Costs. The parties shall each bear all of their respective attorney's fees and costs in connection with this Modification. 11. Remedies and Reservation of Rights. The parties acknowledge that (i) the City's Building Department and its employees are not a party to this Modification; and (ii) Ocean fully reserves all of its rights and remedies in connection with any decision or action of the City's Building Department concerning the Project, including, but not limited to, the issuance of the Revised Master Permit. Prior to initiating any litigation under this Modification, or under any of the Exhibits attached hereto, the party or parties desiring to initiate litigation will provide written notice to the other party or parties and shall be available for a period of 30 days after such written notice to attempt to meet and mediate the dispute prior to initiating litigation. 12. Sovereign Immunity. Nothing in this Modification or in the Exhibits attached hereto shall be deemed to be a waiver by the City of its rights and privileges Page 5 under Florida Statutes Section 768.28 or Florida Statutes Section 70.001(13). EXECUTED as of the date first above written in several counterparts, each of which shall be deemed an original, but all constituting only one agreement. Signed,sealed and delivered in the presence of: CITY OF MIAMI BEACH,FLORIDA a municipal corporation Attest: By: CITY CLERK O B 120 OCE RIV aL , rida limited li ili co INCORP O RATED: ( B H2 Signa e I 0� Print Name ManaAtr Title Approved As To Form And Language And For Execution: A Y Date: Z I lj F:\ATTO\HELG\Agreements\120 Ocean DriveNodification to Settlement Agreement clean rev GH 1-28-13.docx Page 6 BERcow R & FERNAN D�Z ZONING, LANM USE ANA ENN/IFRONMENTALL LAW Direct:305-377-6237 E-Mail:MEntin(@l3RZoningLaw.com VIA HAND DELIVERY Ca February 14, 2013 CD Gary M. Held, Esq. rn First Assistant City Attorney . City of Miami Beach City Hall col 1700 Conven tion Center Drive, V" Floor ,. Miami Beach, FL 33139 t+� Re: Modification to Settlement Agreements between the City of Miami Beach and 120 Ocean Drive, LLC Dear Gary: Enclosed please find the three original executed Modification to Settlement Agreements between the City of Miami Beach and 120 Ocean Drive, LLC. Upon execution by the Mayor and the City Clerk, please return same to our office. ere onika Enti MHE/bl Enclosures WACHOVIA FINANCIAL CENTER•200 SOUTH BISCAYNE BOULEVARD, SUITE 850•MIAMI, FLORIDA 33131 PHONE.305.374.5300•FAX.305.377.6222•WWW.BRZONINGLAW.COM