93-20803 Reso
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RESOLUTION NO.
93-20803
A RESOLUTION OF THE MAYOR AND CITY COMMISSION
OF THE CITY OF MIAMI BEACH, FLORIDA
AUTHORIZING THE MAYOR AND CITY CLERK TO ENTER
INTO AN AGREEMENT BETWEEN THE CITY AND YACHT
CLUB SOUTHEASTERN, INC, ("YACHT CLUB"), AND
PACIFIC INTERNATIONAL CONSTRUCTION, INC.
("PACIFIC") REGARDING THE DEVELOPMENT OF THE
SUNSET HARBOUR PROJECT,
WHEREAS, the city of Miami Beach, on June 1, 1989, issued a
building permit under Activity No. B8800095, which permitted the
development of a project of 800 residential units known as Sunset
Harbour on that parcel of land generally located at 1928 Purdy
Avenue, Miami Beach, Dade County, Florida; and
WHEREAS, based upon this action, Complaints were filed by
Sunset Island 3 and 4 property Owners, Inc., and several of the
association I S individual members in the Circuit Court of the
Eleventh Judicial circuit in and for Dade County, Florida, styled
Sunset Island 3 and 4 Property Owners. Inc. v city of Miami Beach.
Case No, 90-305430-CA-Ol against the Yacht Club, Pacific, the city
and Dade county, Florida, alleging that the issuance of the
building permit by the City was invalid as inconsistent with the
applicable comprehensive Plan, among other assertions generally
challenging the Sunset Harbour project; and
WHEREAS, the parties to the above described action desire to
resolve the claims among them without further lengthy and costly
litigation, and without admission of liability by any party hereto
for itself or for the acts of any other party; and
WHEREAS, each party to the above described action wishes to
enter into a Settlement Agreement on the assurance and
representation that all other parties have full and complete power
and authority to execute same and bind themselves and, to the
extent provided by law, those in privity with them to the mutual
covenants, conditions and agreements contained therein.
NOW, THEREFORE, BE IT RESOLVED by the Mayor and City
commission of the City of Miami Beach, Florida:
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Section l,
That the Mayor and city Commission of the
city of Miami Beach hereby authorize the
Mayor and City Clerk to execute the
settlement attached hereto as Exhibit "A"
and all documents deemed necessary by the
City Attorney's office to resolve all
matters in connection with the Sunset
Harbour Development.
PASSED and ADOPTED this
19th
, 1993.
MAYOR
ATTEST:
~L.~
CITY CLERK
ORM APPROVED
LEGAL DEPT.
By Tc \)
Date 5-1/-e:;'3
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OFFICE OF THE CITY ATTORNEY
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CITY ATTORNEY
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PO, BOX 0
MIAMI BEAC,"" FLORIDA 33119-2032
TELEP,",ONE (305) 673-7470
~ TELECOPY (305)673-7002
LAURENCE FEINGOLD
ooJDU:88IOR IIJDIORDDOII 1101
DATBI KaY 11, 1113
TO: KaYO. 8BYJIOR GBLBB.
IIJUIIIB.. 01' 'rD CITY oolOlI88IOR
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La1JJlJ!lRCB nIRGOLD . /
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CITY ATTOUBY
8UBJBCT: 81D18B'1' BARSOR 8B'1"1'LBJDIIl'1' AGUBJlBIl'1'
In the Sprinq of 1990, the Sunset Islands 3 and 4 Property owners,
Inc., as well as individual members of this association, filed suit
in circuit Court aqainst the Developers of the Sunset Harbour
project, as well as Dade County, and the City of Miami Beach in
reqard to buildinq permits which would have allowed a total of 800
residential units to be built in three (3) hiqh-rise towers, two of
which are on the bay side and one of which is on the canal side of
the site located on Purdy Avenue and 20th Street.
Throuqh extensive negotiations over the past several years, two
proposed settlements have been reached between all the concerned
parties. One settlement concerns the association and the
individuals aqainst the Developers; the other settlement, which is
the Subject of this memorandum and commission action, is between
the Developers and the City. Of course it has been aqreed that all
parties to the circuit Court action will qive mutual releases to
the other.
The heart of the Settlement Aqreement between the City and the
Developers is that the total number of 800 residential units, which
would have been 210 ft. above finished floor elevation, is being
decreased to 642 units and that the tower which was to be 21
stories hiqh on the canal side of the property directly across from
the single family residences in the area will be replaced by a
total not to exceed 50 townhomes. Twenty- (20) two-to-three story
townhome units not to exceed a height of 35 ft. above finish floor
elevation will be built on the canal side of the property, and the
remaininq thirty (30) four-story townhome units not to exceed a
heiqht of 60 ft. above final floor elevation will be built alonq
the 20th street side of the property.
A draft of the Settlement Aqreement had been previously provided
and the amended settlement document in the Commission packaqe
reflects minor changes to the initial draft in which the Developer
has qiven the City increased assurances regarding a comprehensive
Streetscape Program for the area immediately adjacent to the
project. As the Association's and individual homeowners' attorney
has approved the Settlement Agreement regarding his clients - which
essentially mirrors the aqreement between the City and the 55
Developers - it is recommended by the City Attorney's office and
the City Administration that the Commission authorize the execution
of this Settlement.
LF:jm
Attachment
AGENDA
ITEM
R-i-C'
~-1~3
DATE
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SETTLEMENT AGREEMENT
WITH CITY OF MIAMI BEACH. FLORIDA
This Settlement Agreement is between Yacht ClUb Southeastern,
Inc, ("Yacht Club"), Pacific International Construction, Inc.
("pacific"), and the City of Miami Beach, Florida (the "City")
(hereinafter collectively referred to as the "Parties").
RECITALS
WHEREAS, the City on June l, 1989, issued a building permit
under Activity No. B8800095 ("Building Permit"), which permitted
the development of a project of 800 residential units known as
Sunset Harbour on that parcel of land generally located at 1928
Purdy Avenue, Miami Beach, Dade county, Florida, more particularly
described on Exhibit A to this Settlement Agreement (the
"Property"); and
WHEREAS, an Amended Complaint was filed by Sunset Islands 3
and 4 Property Owners, Inc., and several of the association's
individual members (hereinafter collectively referred to as the
"Plaintiffs") in the Circuit Court of the Eleventh Judicial Circuit
in and for Dade County, Florida, styled Sunset Islands 3 and 4
Propertv Owners. Inc. v. Citv of Miami Beach, Case No. 90-30543-CA-
Ol (the "Circuit Court Lawsuit") against the Yacht Club, Pacific,
the City, and Dade County, Florida. The Amended Complaint alleges
that the issuance of the Building Permit by the City was invalid as
inconsistent with the applicable Comprehensive Plan, among other
assertions generally challenging the Sunset Harbour project. Yacht
Club, Pacific, the city, and Dade County have denied the
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Plaintiffs' contentions, and Yacht Club and Pacific have filed a
counterclaim against Plaintiffs asserting that Plaintiffs violated
various antitrust laws in connection with the Plaintiffs' efforts
to impede development of the Sunset Harbour project; and
WHEREAS, the Parties to this Settlement Agreement desire to
resolve the claims among them without further lengthy and costly
litigation, and without admission of liability by any Party hereto
for itself or for the acts of any other Party; and
WHEREAS, each Party hereto is entering into this Settlement
Agreement on the assurance and representation that all other
Parties hereto have full and complete power and authority to
execute same and bind themselves and, to the extent provided by
law, those in privity with them to the mutual covenants, conditions
and agreements contained herein; and
WHEREAS, the above representation is considered by each and
every party hereto to be fundamental to the expressed terms and
purpose of this Settlement Agreement in that it is the desire of
each party to reach finality on all matters raised in the circuit
Court I.awsuit, or which could have been raised, between and among
the Parties and, to the extent provided by law, their privies.
NOW, THEREFORE, in reliance upon the recitals stated above,
and in consideration of the mutual covenants, conditions, and
agreements contained herein, each party stipulates and agrees as
follows:
L Recitals. The foregoing recitals are true and are hereby
incorporated by reference.
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2. Definitions. For purposes of this Settlement Agreement,
the term "Parties" shall include every signatory to this Settlement
Agreement and, to the extent provided by law, their privies, and
their respective successors and assigns. The term "entity"
includes, without limitation, any person, organization, corpo-
ration, partnership, trust, or association. The phrase "Schapiro/
Bermello Plans" shall include the previously permitted plans pre-
pared by Jaime schapiro AlA entitled Sunset Harbour Place, dated
November 28, 1988, and the permitted landscaping plans prepared by
Bruce Howard & Associates dated November 28, 1988, as modified by
the plans (including landscaping drawings) prepared by Bermello,
Ajamil & Partners dated February 1, 1993. The term "Sunset Harbour
Development" means the residential project proposed for the Prop-
erty comprised of a maximum of 642 residential units and various
ancillary commercial, marine, and residential uses, as shown on the
Schapiro/Bermello Plans.
3 . Dismissal of Claims. The Parties expressly authorize and
direct their respective counsel to execute herewith the Joint
Motion attached as Exhibit B which seeks a Final Order in the form
attached as Exhibit C (the "Final Order"), and Yacht Club shall
execute herewith the Declaration of Restrictive Covenants Con-
cerning Sunset Harbour Development (the "Covenant") in the form set
forth in Exhibit D. The Joint Motion, Final order, and Covenant
shall be held in escrow by the law firm of Greenberg, Traurig,
Hoffman, Lipoff, Rosen & Quentel, P.A., and shall be filed and
served, no later than five days after all developmental approvals
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necessary for the construction and use of the Sunset Harbour
Development Concept (including, without limitation, all zoning,
planning, shoreline development review, and design review permits
and approvals) have become effective and final and are no longer
subject to any appeal or judicial or administrative challenge of
any kind whatsoever. Alternatively, Yacht Club may require, in its
sole discretion, that the Parties file and serve the Joint Motion
and Final Order after it records the Covenant in the Public Records
of Dade County, Florida, and notifies the City in writing that it
has waived the foregoing requirement that all developmental
approvals necessary for the construction and use of the Sunset
Harbour Development are effective and final and no longer subject
to challenge. The Final Order in the form attached as Exhibit C
shall i) incorporate and approve this Settlement Agreement; ii)
dismiss Plaintiffs' Amended Complaint and all claims filed or that
could have been filed, with preiudice; iii) dismiss the Counter-
claim filed by Yacht Club and Pacific and all claims filed or that
could have been filed, with preiudice; and iv) retain jurisdiction
to enforce the Settlement Agreement. All Parties to this Settle-
ment Agreement waive their rights to appeal or otherwise challenge
the Final Order as well as any building or other permits issued by
the city, or any other governmental entity, which may be amended,
reissued or issued for the construction of the improvements on the
property that conform with the Sunset Harbour Development and the
Covenant.
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4. Develoomental Limitations. Yacht Club agrees that the
development of the Property shall occur consistent with the
limitations contained in the covenant, attached as Exhibit D.
5. Commencement of Develooment. with respect to Yacht
Club's development of the property, the city acknowledges that for
purposes of compliance with Section 304.3 of the South Florida
Building Code, the lSO-day periOd for commencing construction of
the Sunset Harbour Development commences upon the recordation of
the Covenant.
6. Withdrawal of Reauests for Rezonina and Comorehensive
Plan Amendment. Upon request of Yacht Club, pacific, and
Plaintiffs, the city agrees to abate forthwith its requests for
changes in the zoning district and the local comprehensive plan
designation for the Property. Upon the entry of the Final Order
and request of Yacht Club, Pacific, and plaintiffS, the City agrees
to withdraw forthwith its requests for changes in the zoning
district and the local comprehensive plan designation for the
property and further agrees not to effect any subsequent change in
the existing zoning district or comprehensive plan designation for
the Property that would preclude, impede, or interfere with the
development of the Property as shown on the SchapirojBermello
Plans. Nothing herein shall preclude the City from exercising its
authority to rezone or amend the local comprehensive plan designa-
tion for the Property subsequent to the completion of the develop-
ment of the property as shown on the SchapirojBermello Plans. In
the event that the Final Order in the Circuit Court I.awsuit is not
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entered as provided for in the Settlement Agreement between Yacht
Club and Sunset Islands 3 and 4 Property OWners, Inc., this Settle-
ment Agreement shall be null and void and of no further effect.
7. Stipulation Amendment. The city further agrees, subject
to appropriate approval, to consider a modification of the Stipula-
tion recorded in Official Records Book 12968 at Page 2210 in the
Public Records of Dade County, Florida, as amended by the Modifi-
cation to Stipulation dated July 29, 1987, to (i) delete paragraph
10 thereof, which required that Yacht Club construct a shade struc-
ture in Island View Park, and (ii) modify the applicable paragraphs
of the Stipulation to indicate the completion of an 125-slip marina
and acknowledge the current city parking standards therefor (one
parking space for each two slips, as applicable to the Marina) such
that Yacht Club is only required to provide sixty-three parking
spaces for use of the marina referred to in the Stipulation.
8. Shoreline Development Review. The city agrees not to
oppose Yacht Club's application for a recommendation of approval
from the Dade County Shoreline Development Review Committee of the
SchapirojBermello Plans. Simultaneously with the execution of the
Settlement Agreement, the City agrees to transmit to the Coordi-
nator of the Shoreline Development Review Committee, letters, in
the form attached as Exhibit E, documenting its support of Yacht
Club's shoreline development review application, provided that the
city reviews the SChapirojBermello Plans prior to the Parties'
execution of this Settlement Agreement.
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9. Zonina Reaulations. Yacht Club and Pacific shall abide
by all design review requirements and, if necessary, all variance
requirements as set forth in the city's Zoning Code.
10. streetscaDe Proaram. The Parties agree to use their best
efforts to establish a Streetscape program consisting of, but not
limited to, upgraded landscaping, Changing of utilities from
overhead to underground, water and sewer service expansion, street
lighting, and similar improvements for the area from 20th street to
Al ton Road and from Purdy Avenue to the Venetian Causeway, as
generally depicted on the Plan prepared by Bruce Howard &
Associates. This streetscape Program is in addition to the on-site
landscaping improvements shown on the SchapirojBermillo Plans. In
the event that the streetscape Program is established, then, Yacht
Club agrees to pay to the city an amount equal to fifty percent of
the costs, up to a maximum of $500,000.00 ("streetscape Funds"),
for the Streetscape program; and Yacht Club then further agrees to
pay the streetscape Funds over a period of ten years from the date
of initial contribution by Yacht Club at the then prevailing prime
rate of interest, which rate shall not exceed eight percent per
year, through the creation of a special assessment district or
similar financing mechanism. The details of the Streetscape
Program, inclUding its funding, shall be set forth in a separate
agreement between the City and Yacht Club to be executed prior to
the entry of the Final Order in the Circuit Court Lawsuit. If the
streetscape Program is established, the City agrees that the first
streets cape Funds shall be spent on improvements to Purdy Avenue
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and 20th street, commencing with the property directly adjacent and
parallel to the Property. The city agrees that subsequent
Streetscape Funds shall next be spent on improvements to the Sunset
Island Bridge and the triangular parcel of property located at
Alton Road and 20th street, the latter of which may be used as an
entry feature to the Sunset Harbour/Sunset Islands community. The
city further agrees to use its best efforts to provide signage for
the entry feature to the Sunset Harbour/Sunset Islands community if
mutually agreed to by Yacht Club and the Sunset Islands 3 and 4
Property Owners, Inc. The City also agrees to rename or "co-name"
Purdy Avenue and/or 20th Street as Sunset Harbour Drive or such
other appropriate name.
ll. Credit for previouslv Paid Permit Fees. The City
acknowledges Yacht Club's prior payment of $l41,l59.24 in building
permit fees for the Sunset Harbour Development, of which $39,524.34
was paid for the development of 224 residential units along the
canal side portion of the Property consistent with the Building
Permit plans approved for the property. The permit costs for fifty
dwelling units to be constructed on the canal side portion of the
Property will total $l7,160.00, which the City hereby acknowledges
as paid. Accordingly, the City agrees to grant Yacht Club a credit
in the amount of $22,364.34 against any other fees imposed by the
city for the development of the Property or other properties now or
in the future owned by Yacht Club, its successors, assigns,
affiliates, or related entities.
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l2. New Permits. The City expressly recognizes that Yacht
Club possesses vested rights to develop 800 residential units on
the Property based upon substantial expenditures incurred by Yacht
Club and its predecessors in good-faith reliance, to their substan-
tial detriment, and based upon the issuance of final development
orders by the city and/or Dade County approving the development of
the Property for a maximum of 800 residential units. Based upon
this vested rights status, the city agrees to "grandfather" the
development of the Property for a maximum of 800 residential units,
solelv for the purposes of concurrency and impact fee requirements,
such that any new permits issued by the city for construction of
improvements on the Property not exceeding 800 residential units
for a period of ten years from the effective date of this Settle-
ment Agreement, shall be deemed retroactive to May 3l, 1989, and
therefore shall not be subject to the then existing concurrency or
impact fee requirements. The City maintains the option, however,
to divest the "grandfather" status of up to l74 residential units
located on the Property for the limited purpose of public sewer
capacity onlv, upon Yacht Club's failure to obtain building permits
for the construction of such 174 residential units (or less) on the
Property by no later than six months after Yacht Club's receipt of
written notice by the City of the city's intention to exercise its
option. The City may only exercise this option no earlier than two
years after the effective date of this Settlement Agreement. The
vested rights recognized by the City, for the limited purposes
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expressed above, apply only in the event that the Property is
developed consistent with the Covenant.
l3. Transferable Development Riahts. The City acknowledges
that, by Yacht Club's agreeing, as a condition of this Settlement
Agreement, to reduce the density on the Property from the permitted
800 units to a lesser number of units that are actually con-
structed, Yacht Club has not lost its right to seek transferable
development rights (TDR's) for such reduction in units in the
future, if, and when, an ordinance permitting same is enacted by
the city, merely because the city's existing Transferable Develop-
ment Rights Ordinance (Ordinance No. 89-2665, Section 6-29) does
not presently permit transfer of such TDR's as applied to the
Property. The city is under no obligation, however, to consider
the adoption of such Transferable Development Rights Ordinance.
This provision shall only be applicable for a period of ten years
from the effective date of this Settlement Agreement.
14. Resolution of Claims. By their execution of this Settle-
ment Agreement, the Parties resolve all issues that were raised or
which could have been raised in the Circuit Court Lawsuit. No
party, by executing this Settlement Agreement and agreeing to its
terms, accepts or agrees to the allegations, claims or defenses
asserted by another Party.
15. Release. The Parties to this Settlement Agreement hereby
release, forever discharge, covenant not to sue, and covenant not
to aid VOluntarily, directly or indirectly, in any suit, claim or
demand aqainst each other, that was asserted or that could have
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been asserted in the circuit Court Lawsuit. Notwithstanding the
foregoing, no release granted herein shall preclude any Party from
suing to enforce the terms of this Settlement Agreement.
16. Defense to Violation of Aqreement. If any Party to this
Settlement Agreement undertakes any action that violates a provi-
sion of the Settlement Agreement, this Settlement Agreement may be
pled as a full and complete defense or claim. Any Party to this
Settlement Agreement may also seek injunctive relief to ensure
compliance with the terms of this Settlement Agreement.
l7. Reliances. Each Party represents that no payments,
promises, representations, or inducements for the execution of this
Settlement Agreement have been made to it or have been relied on by
it in executing this Settlement Agreement, except solely those
terms, conditions, and covenants set forth in this Settlement
Agreement, including the Exhibits hereto. The Parties further
stipulate that they fully understand the contents and legal effect
of this Settlement Agreement.
18. Enforcement Jurisdiction. Each Party agrees that the
circuit Court of the Eleventh Judicial Court in and for Dade
County, Florida, reserves juriSdiction to enforce or interpret any
of the terms and conditions of this Settlement Agreement.
19. Costs and Expenses. Each Party shall bear its own costs
and expenses and pay its own attorneys' fees incurred in connection
with the claims addressed herein.
20. Counteroart Oriqinals. This Settlement Agreement may be
executed by the Parties in counterpart originals with the same
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force and effect as if fully and simultaneously executed as a
single original document.
21. Entire Aareement. This Settlement Agreement, including
its recitals, conditions, releases, and exhibits, contains all of
the terms and conditions agreed upon by the Parties relating to the
Sunset Harbour Development and supersedes all prior and contempora-
neous agreements, negotiations, correspondence, understandings and
communications of the Parties, whether oral or written, concerning
the Sunset Harbour Development or this Settlement Agreement.
22. Modification. This Settlement Agreement may be modified,
terminated, or discharged only by a writing signed by the Parties
hereto and their successors and assigns.
23. Benefit of Parties Onlv. The agreements contained herein
shall be solely for the benefit of the Parties hereto, their
successors and assigns.
24. Coooeration. Each of the Parties to this Settlement
Agreement, when reasonably requested by the other Party, shall
execute any and all further and additional documents necessary to
give effect to the matters that are the subject matter of this
Settlement Agreement.
25. Bindina Uoon Successors and Assians. The provisions of
this Settlement Agreement shall be binding upon and inure to the
benefit of the Parties hereto and their respective successors,
assigns, or affiliates.
26. Construction of Aareement. All of the Parties to this
Settlement Agreement have participated fully in the negotiation and
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preparation hereof; and, accordingly, this Settlement Agreement
shall not be more strictly construed against anyone of the Parties
hereto. In addition, in construing this Settlement Agreement, the
singular shall be held to include the plural, the plural shall
include the singular, the use of any gender shall include every
other and all genders, and captions and paragraph headings shall be
disregarded.
27. Severabilitv. In the event any term or provision of this
Settlement Agreement be determined by appropriate judicial
authority to be illegal or otherwise invalid, the remainder of this
Settlement Agreement shall remain legal and otherwise valid.
28. Disoute Resolution Concernina Aareement. Any controversy
or claim for money damages arising our of or relating to this
Settlement Agreement, or the breach hereof, shall be settled by
arbitration in accordance with the Commercial Arbitration Rules of
the American Arbitration Association, and the arbitration award
shall be final and binding upon the Parties and subject to no
appeal, and shall deal with the question of the costs of arbitra-
tion and all matters related thereto. In that regard, the parties
shall mutually select three arbitrators, but to the extent the
Parties cannot agree upon the arbitrator, then the American
Arbitration Association shall appoint one. Judgment upon the award
rendered my be entered into any court having jurisdiction, or
application may be made to such court for and an order of enforce-
ment. Any controversy or claim other than a controversy or claim
for money damages arising our of or relating to this Settlement
tml',UII$I<<\954U.2\05/11l/113
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Agreement, or the breach hereof, including any controversy or claim
relating to the right to specific performance, shall be settled by
litigation and not arbitration. In the event of any litigation
between the Parties concerning a breach of this Settlement Agree-
ment, the prevailing party shall be entitled to attorneys' fees and
court costs, at trial and all appellate levels.
29. Effective Date. This Settlement Agreement shall take
effect upon the date of its execution.
30. Authoritv to Execute Aqreement. Each individual, corpo-
rate and organizational signatory, warrants that it has the
authority to execute this Settlement Agreement and that this
Settlement Agreement is being entered into voluntarily. Each
corporate and organizational signatory warrants that it has entered
into this Settlement Agreement pursuant to valid corporate action
and has adopted proper resolutions approving the execution and
delivery of this Settlement Agreement, copies of which are attached
as Exhibit F to this Settlement Agreement. Any breach of any
warranty described in this paragraph shall render this Settlement
Agreement voidable.
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IN WITNESS WHEREOF, the Parties have executed this Settlement
Agreement.
YACHT CLUB SOUTHEASTERN, .INC.
~O~R&I~ VICE PRESIDENT
Date: ~~~5
PACIFIC INTE NATIONAL CONSTRUCTION, INC.
/1- )k
~OWARD SHAPIRO, PRESIDENT
Oat., OFi:.:>~
witnesses:
witnesses:
Witnesses:
{23- '?3
FORM APPROVED
LEGAL DEPT.
rJ&wJ. t:.~~~~
BY: RICHARD E. BROWN, CITY CLERK
Date: ~t.V~
By
--:r Co s>
Date
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LEGAL DESCRIPTION
The west one-half of Lot 7, Block 14, and Lots 10 and
11, Block 15, of ISLAND VIEW SUBDIVISION, according to
the Plat thereof, as recorded in Plat Book 6, at Page
ll5, of the Public Records of Dade County, Florida;
and
Lots 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39
and 40, Block l5-A of ISLAND VIEW ADDITION OF MIAMI
BEACH BAY SHORE COMPANY, MIAMI BEACH, FLORIDA, according
to the Plat thereof, as recorded in Plat Book 9, at Page
144, of the Public Records of Dade County, Florida.
OAC04090ljR
EXHIBIT "An
(to Settlement Agreement with City of Miami Beach)
IN THE CIRCUI'I' COURT OF 'rHE
ELEVENTH JUDICIAL CIRCUIT IN
AND FOR DADE COUNTY, FLORIDA
GENERAL JURISDICTION DIVISION
CASE NO.: 90-30543
THE SUNSET ISLANDS 3 AND 4
PROPERTY OWNERS, INC" et al"
Plaintiffs,
JOINT MOTION FOR APPROVAL OF
SETTLEMENT AGREEMENT
v,
CITY OF
COUNTY;
SOUTHEASTERN,
PACIFIC
CONSTRUCTION,
MIAMI BEACH; DADE
YACHT CLUB
INC.; and
INTERNATIONAL
INC.,
Defendants.
Defendants,
YACHT
CLUB
SOUTHEASTERN,
INC. ,
PACIFIC
INTERNATIONAL CONSTRUCTION, INC. and CITY OF MIAMI BEACH, by and
through their respective undersigned counsel, hereby move this
Court for the entry of an order approving the Settlement
Agreement attached hereto, subject to the court retaining
jurisdiction to enforce the terms of the Settlement Agreement and
grant such other and further relief as this Court deems just and
proper.
DATED this day of
, 1993.
CITY OF MIAMI BEACH
1700 Convention Center
Miami Beach, FL 33139
BEDZOW KORN KAN & GLASER, ,P.A.
11077 Biscayne Blvd. PH-Ste.
P.O, Box 61-9002
Penthouse Suite
Miami, Florida 33161-9002
By:
JOHN DELLAGLORIA,
Deputy City Attorney
By:
ALAN J. KAN,
Counsel for Yacht Club &
Pacific International
Construction
OAC040902
EXHIBIT -B-
(to Settlement Agreement with City of Miami Beach)
IN THE CIRCUIT COURT OF THE
ELEVENTH JUDICIAL CIRCUIT IN
AND FOR DADE COUNTY, FLORIDA
THE SUNSET ISLANDS 3 AND 4
PROPERTY OWNERS, INC., et al.,
GENERAL JURISDICTION DIVISION
CASE NO.: 90-30543
Plaintiffs,
v.
CITY OF MIAMI BEACH; DADE
COUNTY; YACHT CLUB
SOUTHEASTERN, INC.; and
PACIFIC INTERNATIONAL
CONSTRUCTION, INC"
Defendants.
:
FINAL ORDER APPROVING SETTLEMENT AGREEMENT
THIS CAUSE carne on to be heard upon the Joint Motion for
Approval of Settlement Agreement of the parties, this Court
having heard argument counsel, having reviewed the court file and
being otherwise fully advised in the premises, the Court finds as
follows:
1.
The
Settlement Agreement
attached
hereto as
Exhibit "A" (the "Agreement") is fair, adequate and reasonable to
the City of Miami Beach, Yacht Club Southeastern, Inc., and
Pacific International Construction, Inc.
2. In accordance wi th the Settlement Agreement the
Declaration of Restrictive Convenants Concerning Sunset Harbor
Development have been recorded in the Public Records of Dade
County, Florida.
"EXHIBIT .C.
(to Settlement Agreement with City of Miami Beach)
CASE NO.: 90-30543'
3. That the procedures utilized by the City of Miami
Beach authorizing the execution of the Agreement were proper and
in accordance with the procedure set forth in the City Ordinances
and the applicable Florida Statutes. Therefore,
IT IS ORDERED AND ADJUDGED, as follows:
A. That the terms of the Agreement are hereby
approved by this Court as being fair, adequate and reasonable to
the City of Miami Beach, Yacht Club Southeastern, Inc., and
Pacific International Construction, Inc. in settlement of all
matters raised in this action.
B. That the Court will retain jurisdiction to enforce
the Settlement Agreement and for no other purposes except as set
forth therein,
DONE AND ORDERED in Chambers at Miami, Dade County, Florida,
this _ day of
, 1993.
CIRCUIT COURT JUDGE
Copies Furnished To:
JOHN DELLAGLORIA, Deputy City Attorney, CITY OF MIAMI BEACH, 1700
Convention Center Drive, Miami Beach, Florida 33139
ALAN J. KAN, BEDZOW KORN KAN & GLASER, P.A., 11077 Biscayne Blvd.
PH-Ste.. P.O. Box 61-9002, Penthouse Suite, Miami, Florida
33161-9002
KERRI BARSH, GREENBERG, TRAURIG et al., 1221 Brickell Avenue,
Miami, FL 33131
OAC040904/R
"EXHIBIT .C.
(to Settlement Agreement with City of Miami Beach)
DECLARATION OF RESTRICTIVE
COVENANTS CONCERNING
SUNSET HARBOUR DEVELOPMENT
Yacht Club Southeastern,
Inc.
("Yacht Club"),
hereby
voluntarily makes, declares, and imposes on the property described
below, the covenants running with the title to the land, which
shall be binding on Yacht Club, its heirs, successors and assigns,
personal representatives, trustees, mortgagees, lessees, and
against all persons claiming by, through, or under them ("Owner")
until such time as this instrument is released in writing as
hereinafter provided;
WHEREAS, Yacht Club holds the fee simple title to the property
described in Exhibit "A"
(hereinafter referred to as the
"Property") ;
WHEREAS, Yacht Club intends to develop the property with a
residential development and various ancillary residential,
commercial and marine uses;
WHEREAS, this Declaration of Restrictive Covenants Concerning
Sunset Harbour Development is executed pursuant to and is part of
a Settlement Agreement dated
, 1993, by and between
Yacht Club, Pacific International Construction, Inc., Sunset
Islands 3 and 4 Property Owners, Inc., William A. Ingraham, Jr.,
Andrew H. Moriber, Sara Moriber, Susan Baker Weiner, Gary Weiner,
Constance T. Kerr, Maria D. Moribona, Norman C, Ridgely, Patricia
M. Ridgely, Candice Feldstein, Nancy Luria-COhen, Oscar Reisler,
I
COMPOSITE EXHIBIT "~"
(to Settlement ^greemcnt)
Howard Jackson, William C, Taylor, and Terri Daoud (collectively
referred to as the "Settling Parties");
NOW, THEREFORE, in consideration of the premises, Yacht Club
hereby agrees as follows:
1. Dwellinq units Alonq Canal. with respect to the portion
of the Property along the canal, as depicted on Exhibit B with
cross-hatching ("Property Along the Canal"), Owner agrees to
construct no more than twenty dwelling units, at a height not to
exceed thirty-five feet above minimum flood criteria to peak of
roof. Such units shall be a minimum of two stories in height. For
the purposes of paragraphs 1 and 2 only, the phrase "dwelling
unit(s)" shall mean single-family detached homes, townhomes, and/or
such other less intensive residential uses that may be permitted by
the City of Miami Beach.
2. Landscapinq. The landscaping for the portion of the
Property Along the Canal shall be no less than as shown on Exhibit
C. Owner agrees to use reasonable efforts to provide the trees
shown thereon at a minimum of twenty-five feet in height, if
feasible; otherwise, such trees shall be a minimum of sixteen feet
in height. Any deviation by Owner from the landscaping for the
portion of the Property Along the Canal shall be submitted to the
Sunset Island 3 and 4 Property Owners, Inc., for its reasonable
consideration. Except for landscaping, landscaping lighting or
other lighting required by governmental bodies, benches, bay walk,
security wall, ingress/egress gates, and related items, there shall
2
be no other improvements between the seawall on the canal and the
dwelling units along the canal.
3. Dwellinq Units Alonq 20th Street. With respect to the
portion of the Property along 20th Street, as shown on Exhibit B
with shading, Owner agrees to construct no more than forty-six
dwelling units, at a height not to exceed sixty feet above minimum
,flood criteria to peak of roof. For purposes of this paragraph,
the phrase "dwelling units" shall mean apartments, single-family
detached homes, townhomes, and/or such other less intensive
residential uses that may be permitted by the City of Miami Beach.
4. Parkinq. Parking for the dwelling units on the Property
Along the Canal will be located behind such units (away from the
canal) and under cover.
S. Auqur Pilinq, Where piling is used on the Property,
Owner shall use only augur piling.
6. Property Alonq the Bav. The property along Biscayne Bay,
as shown on Exhibit 0 with cross-hatching ("Property Along the
Bay"), shall be constructed as permitted in accordance with the
approved plans prepared by Jaime Schapiro AIA entitled Sunset
Harbour Place dated November 28, 1988 (the "Approved Plans"), and
with such minor modifications to the Approved Plans as may be
allowed by the city of Miami Beach. Nothing herein, however, shall
preclude Owner from constructing residential dwelling units on the
Property Along the Bay at a lower density or height than as shown
on the Approved Plans. Owner shall not, however, under any
3
circumstance, construct residential dwelling units at a greater
height, density, or intensity of use than presently permitted by
the City of Miami Beach under Building Permit Activity No.
138800095 for the Property Along the Bay.
7. Variances. Nothing herein shall prevent Owner from
applying to governmental entities for variances from the Approved
Plans that do not increase the height or density, sUbject to the
rights of all affected persons, including Sunset Islands 3 and 4
Property Owners, Inc., to oppose, agree, or stand silent thereto,
8. Term of Declaration. The provisions of this Covenant
shall become effective upon their recordation in the Public Records
of Dade County, Florida, and shall continue in effect for a period
of thirty years after the date of such recordation, after which
time they shall be extended automatically for two successive
periods of ten years each, unless released in writing by the then
owners of the Property (or, if applicable, an association of such
owners) and the Sunset Islands 3 and 4 Property Owners, Inc.
9. Modification. The provisions of this Covenant may be
amended, added to, derogated, deleted, modified, or changed from
time to time by recorded instrument executed by the then owner or
majority of the owners of all the Property or an association of
such property owners, provided that such modification, amendment,
or release is also approved in writing by the Sunset Islands 3 and
4 Property Owners, Inc., in accordance with all applicable by-laws.
Should this Covenant be so modified, amended, or released, the then
4
owner of the Property or its successor, shall forthwith execute a
written instrument effectuating and acknowledging such modifica-
tion, amendment, or release.
10. Enforcement.
Restrictive Covenants
The limitations of
shall run with the
this Declaration of
land and shall be
enforceable only by a Settling Party or Settling Parties and, to
the extent provided by law, their privies. Enforcement shall be by
action at law or in equity against any parties or persons violating
or attempting to violate any covenants, either to restrain
violation or to recover damages. The prevailing party in the
action or suit shall be entitled to recover, in addition to costs
and disbursements allowed by law, such sums the court may adjudge
to be reasonable for the services of his attorney.
11. No Cloud on Title. This Covenant shall not be construed
as a cloud on title on the Property or on any portion of the Prop-
erty upon which construction has occurred. The recording of an
engineer'S certificate for each individual dwelling unit
constructed on the Property in the form attached as Exhibit E shall
constitute conclusive evidence of satisfaction of all applicable
provisions of this Covenant as to each such dwelling unit. Such
engineer's certificate may be solely relied upon by any mortgagee,
lender, purchaser, or any other entity or person who acquires an
interest in the Property.
5
12. Severability. Invalidation of any of these covenants, by
judgment or court, shall not render the other provisions of this
Covenant invalid,
Signed, sealed, executed, and acknowledged on this day of
, 1993.
OWNER:
Signed, sealed and delivered
in the presence of:
YACHT CLUB SOUTHEASTERN, INC"
a Florida corporation,
By:
HOWARD SHAPIRO
Vice President
"TM\_,.'.'.l\.J/U/U
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LEGAL DESCRIPTION
Lots 10 and II, Dlock IS, of "Island View Subdivision", according
to the Plat thereof as recorded in Plat Dook G, Page lIS of the
Public Records of Dade County, Plorida.
and
Lots 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40,
Dlock 15-A of "Island View Addition of Miami Deach Bay Shore
Company Miami Deach, P1oridn", according to the Plat thereof ;lS
recorded in Plat Book 9, Page 144 of the Public Records of Dade
County, Plorida.
MAC000334L/D
EXIJIDIT "An
(to Declaration)
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EXHIBlr 0
("1:0 Dcclilration)
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This Instrument Pr~pared by and Return to:
ALAN J. KAN, ESQ.
BEDZOW, KORN, KAN & GLASER, P.A.
ll077 Biscayne Boul~vard, Penthouse Suite
P,O. Box 61-9002
Miami, Florida 33161-9002
ENGINEER'S CERTIFICATION
STATE OF FLORIDA
COUNTY OF DADE
BEFORE ME, the undersigned authority, duly authorized to
take acknowledgments, personally appeared
(the "Affiant"), who being first duly sworn, on oath, deposes and
says as follows:
1, That Affiant is a duly registered professional engineer
under the laws of the State of Florida.
2. That Affiant hereby states, to the best of his know
ledge that, as of the date hereof, to wit:
(date)
the construction of residential unit
(name of UIH t)
upon the property described in Exhibit "A" attached hereto, was
completed in substantial compliance with that certain Declaration
of Restrictive Covenants concerning Sunset llarbour Development,
recorded in Official Records Book
of the Public Records of Dade County, Florida.
, at Page
FURTHER AFFIANT SAYETH NOT.
Attlant --
Registered Engineer No.
[notarial continues on page 2 hereof]
EXIIIB 1'1' WE n
(to Declaration)
"
SWORN TO
ity, this
AND SUBSCRIBED before me, the unuersigned author-
day of , 19_, by
, the Affiant, who is personally known to
me or has/have produced
identification, and did take an oath.
as
My Commission Expires:
Notary Public, State of Florida
MAC04090S/R
Print Name:
2
"
April
, 1993
Metropolitan Dade County
Shoreline Development Review Committee
Re: Sunset Harbour
Dear Committee Members:
Please be advised that the City of Miami Beach (the "City"),
through its appropriate representative, has reviewed Yacht Club
Southeastern, Inc.' s submission for (i) a minor modification of the
previously approved site plans for Sunset Harbour, and (ii) the deletion
of the required monetary contribution for improvements to Island View
Park. Based upon such review, the City is pleased to inform the
Committee that it has no objection to this Committee's granting these
requested modifications as shown on the Shapiro/Bermelo plans.
Very truly yours,
JOHN DELLAGLORIA,
Deputy City Attorney
City of Miami Beach
OAC040906/R
EXHIBIT -E-
(to Settlement Agreement with City of Miami Beach)
'"
WRI'rTEN CONSENT ACTION OP ALL MEMBERS OP
THE BOARD OP DlREC'fOHS OF
YACHT CLUB SOU'l'HEAS'l'ERN, INC.
====~=============~====================~======~===~===================
WHEREAS, YACIIT CLUB SOU'l'IIEASTERN, I NC,
("Yacht Club"), is a
I PIa! ida corporation, and is the governing body responsible for the
operation and administration of the property described as follows (the
"Yacht Club Property"):
Lots 10 and 11, Block IS, of ISLAND VIEW
SUBDIVISION, according to the Plat thereof. as
recorded in Plat Book 6, at Page 1l5, of the
Public Records of Dade County, Plorida;
and
Lots 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37,
38, 39 and 40, Block 15-A of ISLAND VIEW ADDITION
01" MIAMI BEACH BAY SHOHE COMPANY, MIAMI llEAClI,
PLOHIDA, according to the Plat thereof, as
recorded in Plat Book 9, at Page 144, of the
Public Records of Dade County, Plorida.
and
WHEREAS, THE SUNSE'l' ISLANDS 3 AND 4 PROPER'l'Y OWNlmS, INC.
(the "Association") has filed an amended Complaint in the Circuit
Court of the Eleventh Judicial Circuit in and for Dade County,
Plorida, against Yacht Club, Pacific Internationa~ Construction,
Inc.
("Pacific") ,
Ci ty of Miami
Beach
(the
"ti tytl) ,
and
Metropolitan Dade County, Plorida (the "County"); Dnd
WHEREAS, Yacht Club, the Association, Pacific, City and
County, being desirous of avoiding the expense of litigating any
disputed claims, now or in the future, and maintaining amicable
relations
between
them,
having
been
enguged
in
extE:osive
I
COKPOSITE EXHIBIT "~,.
(to Settlement Agreement with City of Miami Beach)
"
"
negotiations concerning said claims and having reached a mutually
agreeable settlement; and
WHEREAS,
Yacht Club's Board of Directors has had an
opportunity to consult with legal counsel and has determined that
the Settlement AgreE::ment ("Settlement Agrel.'ment") dated as of the
day of
1993, between the Association,
cE::rtain individual members of the Association and Yacht Club and
Pacific, a copy of which is attached hereto as Exhibit "A", is in
the best interest of Yacht Club and will satisfactory resolve any
and all disputed claims between the Association and Yacht Club
and Pacific, as is more 'specifically set forth in the Settlement
Agreement; and
WHEREAS, Yacht Club's Board of Directorn, in accordance with
the procedures set forth in the By-Laws at Y<lcht Club <Lnd the
applicable Flor ida Statutes, has duly approved and ratified the
Settlement Agreement at a meeting held on
199_; and
WHEREAS, Yacht Club's Board of Directurs warrants and
represents that they have full power and authority to represent
Yacht Club;
NOW, THEREFORE, be it resolved that:
1. The foregoing recitations are true and correct;
2.
That Yacht Club
corporation and is
of the State of
hereafter;
is a validly existing Florida
in good standing under the laws
Florida as of this date and
2
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3. The Settlement Agreement has been duly approved by
the Board of Directors of Yacht Club.
4. Yach t Club and its Board of Di rec tal'S have full
power to enter into this Settlement Agreement and
perform the obligations thereunder.
5. The actions contemplated on the Settlement
Agreement, including filing of a Joint Motion to
Abate and Joint ~lotion and entry of Final Order
thereon, are valid, binding and enforceable
against Yacht Club and, that the execution of the
Settlement Agreement by the President and
Secretary of Yacht Club, on its behalf, doe>> not
and will not violate any judgment, order, decree,
writ or injunction of any court or governmental
department, commission or agency against Yacht
Club, and does not and will not result in or cause
the breach of, or a defuult under any agreement,
mortgage, contract, undertaking, or other
instrument or document which Yacht Club is a part.
6. The President and Secretary of Yacht Club are
hereby author ized on behalf of Yacht Club, to
execute the Settlement Agreement and all
instruments required to be executed and delivered
pursuant to the Settlement Agreement which shall
be binding upon Yacht Club and the execution
thereof is hereby ratified.
The undersigned hereby certifies that the above i!; a true and
correct copy of the resolution approved by the Board of Directors at a
duly called meeting held on the _ day of
199 and the adoption of the resolution uppean, ill the minutes of
Yacht Club and is unrevoked.
YACU'l' CLUB SOU'l'UEAS'l'ERN, INC. , a
Florida corporation
By:_.
President
By:
Secretary
[signatures continue on following page]
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[signatures continue]
DIHEC'I'ons:
OAB040907/R
4
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WRITTEN CONSENT ACTION OF ALL MEMllERS OF
THE BOARD OF DIRECTORS OF
PACIFIC INTERNATIONAL CONSTRUCTION, INC.
===========~===================~=~========~===========~~=~============
WHEREAS, PACH'IC IN'l'ERNA'fIONAL CONS'PlWC'I'ION, INC. ("paciUc"), is
a Florida corporation, and is the general contractor rCf3ponsible [or
the construction of the Yacht Club Southeastern, Inc. property (the
"Yacht Club Property") described as follows:
Lots 10 and 11, Block IS, o[ ISLAND VIEW
SUBDIVISION, according to the Plat thereof, as
recorded in Plat Book G, at Page 115, of the
Public Records of Dade County, Florida;
and
Lots 27, 20, 29, :)0, 31, 32, 33, 34, 35, 36, 37,
38, 39 and 40, Block 15-A of ISLAND VIEW ADDITION
OF MIAMI BEACH BAY SHORE COMPANY, MIAMI BEACH,
FLORIDA, according to the Plat thereof, as
recorded in Plat Book 9, at Page 144, of the
Public Records of Dade County, Florida,
and
WHEREAS, THE SUNSET ISLANDS 3 AND 4 PROP8R'fY OWNERS, INC.
(the "AssoCiation") has filed an amended Complaint in the Circuit
Court of the Eleventh Judicial Circuit in and for Dade County,
Florida, against Pacific, Yacht Club Southeastern, Inc. ("Yacht
Club"), City of Miami Beach (the "City"), and Metropolitan Dade
County, Florida (the "County"); and
WHEREAS, PaCific, the Association, Yacht Club, City and
County, being desirous of avoiding the expense of litigating any
disputed claims, now or in the future, and maintaining amicable
relations
between
them,
having
been
engaged
in extensive
1
COMPOSITE EXHIBIT "I""
(to Settlement Agreement to City of Miami Beach)
,.
negotiations concerning said claims and having reached a mutually
agreeable settlement; and
WHEREAS, Pacific's Board of Directors has had an opportunity
to consult with legal counsel and has determined that the
Settlement Agreement ("Settlement Agreement") dated as of the
day of
1993. between the Association, certain
individual members of the Association and Yacht Club and Pacific,
a copy of which is attached hereto as Exhibit "A", is in the best
interest of Pacific and will satisfactory resolve any and all
disputed Claims between the Association and Yacht Club and
Pacific, as is more specifically set forth in the Settlement
Agreement; and
WHEREAS, Pacific's Board of Directors, in accordance with
the procedures set forth in the Oy-Laws of Pacific and the
applicable Flor ida Statutes, has du ly approved and rut i fi ed the
Settlement Agreement at a meeting held on
199_; and
WHEREAS,
Pacific's
Board
of
Directur:s
warrants
and
represents that they have full power and author i ty to represent
of Pacific;
NOW, THEREFORE, be it resolved that:
1. The foregOing recitations are true and correct;
2.
That Pacific is
corporation and is
of the State of
hereafter;
a validly existing Plorida
in good standing under the laws
FloL. ida as of this date and
2
3. The Settlement Agreement has been duly appruved by
the Board of Directors of Pacific.
4.
Pacific and its Board of Directurs
to enter into this Settlement
perform the obligations thereunder.
have full power
1\9 reement and
5. 'I'he actions contemplated on the Settlement
Agreement, including filing of a Joint Motiunto
Abate and Joint Motion and entry of Final Order
thereon, are valid, binding ilnd enforceuble
against Pacific and, that the execution of the
Settlement Agreement by the President Bnd
Secretary of Pacific, on its behalf, does not and
will not violate any judgment, order, decree, writ
or injunction of any court or governmental
department, commission or agency against Pacific,
and does not and will not result in or cause the
breach of, or a default under any agreement,
mortgage, contract, undertaking, or other
instrument or document which Pacific is a part.
6. The President and Secretary of Pacific are hereby
authorized on behalf of Pacific, to execute the
Settlement Agreement and all instruments required
to be executed and delivered pursuant to the
Settlement Agreement which shall be binding upon
Pacific and the execution thereof is hereby
rat if ied.
The undersigned hereby cer-tifies that the above is a true and
correct copy of the resolution approved by the Board of Directors at a
duly called meeting held on the _ day of
199 and the adoption of the resolution appears in the minutes of
Pacific and is unrevoked.
PACH'IC IN'l'ERNA'rIONAL CONS'l'RUCTION,
INC., a Florida corporation
fly:
President
By:
Secretary
[signatures continue on following page)
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[signatures continue}
01 RECTORS:
OAB040908/R
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