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2017-30035 Resolution RESOLUTION NO. 2017-30035 A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, APPROVING THE SETTLEMENT BETWEEN THE CITY, 1500 OCEAN DRIVE CONDOMINIUM ASSOCIATION, INC., ("1500"), IL VILLAGGIO CONDOMINIUM ASSOCIATION, INC. ("IL VILLAGGIO"), OCEAN COURT, LLC, ("OCEAN COURT"), JONATHAN PLUTZIK, ("PLUTZIK"), BETSY ROSS OWNER, LLC, ALFRED BERG ("BERG"), (COLLECTIVELY, "NEIGHBORS"), AND BOOS DEVELOPMENT GROUP, INC., ("BOOS"), CVS 10346 FL, LLC ("CVS"), AND AUTHORIZING THE CITY MANAGER AND CITY ATTORNEY TO TAKE THE NECESSARY AND APPROPRIATE STEPS FOR THE IMPLEMENTATION THEREOF; AND FURTHER AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE ANY DOCUMENTS AND/OR AGREEMENTS, AS REQUIRED, TO EFFECTUATE THE TERMS OF THE SETTLEMENT. WHEREAS, 1500 Ocean Drive Condominium Association, Inc., a Florida not-for- profit corporation ("1500"), II Villaggio Condominium Association, Inc., a Florida not-for- profit corporation ("II Villaggio"), Ocean Court, LLC, a Florida limited liability company ("Ocean Court"), Jonathan Plutzik, a natural person ("Plutzik"), Betsy Ross Owner, LLC, a Florida limited liability company, and Alfred Berg, a natural person, ("Berg"), (collectively, "Neighbors"), and Boos Development Group, Inc., a Florida corporation ("Boos"), CVS 10346 FL, LLC, a Delaware limited liability company ("CVS"), and City Of Miami Beach ("City"), a Florida municipal corporation (collectively "Respondents", and all Respondents and Neighbors collectively, have engaged in a series of appeals and challenges to development approvals; and WHEREAS, 1500 manages and maintains a 114-unit condominium and controls the common elements on that certain parcel of land located in Miami-Dade County, Florida (the "1500 Property"); and WHEREAS, II Villaggio manages and maintains a 122-unit condominium and controls the common elements on that certain parcel of land located in Miami-Dade County, Florida (the "II Villaggio Property"), and Alfred Berg is a resident of the condominium; and WHEREAS, Betsy Ross Owner, LLC, Ocean Court, LLC and Plutzik are collectively owners and operators of the Betsy Ross Hotel at 1440 Ocean Drive, (the "Betsy Ross Property"); and WHEREAS, Boos and CVS obtained City of Miami Beach Historic Preservation Board ("HPB") approval and Board of Adjustment ("BOA") approval of three (3) zoning variances for the development, construction and operation of a CVS store at 1475 Collins Avenue ( the "CVS Project"); and WHEREAS, the Neighbors have raised concerns with the CVS Project and have filed two (2) appeals to the circuit court in and for Miami-Dade County (a petition for writ of certiorari: Case No.: 14-112 AP, appealed by Boos and CVS to the Third District Court of Appeal via Case No. 3D15-0315, and an appeal pursuant to section 163.3215, F.S. Case No.: 14-007455-CAOI) challenging the issuance of the variances by the BOA (the "CVS Project Litigation"); and WHEREAS, the Betsy Ross Owner, LLC received HPB and BOA approval for an expansion of the Betsy Ross Hotel and the Carlton Hotel (the "Betsy Ross Project"); and WHEREAS, Boos and CVS have raised concerns about the Betsy Ross Project and have filed certain appeals regarding that project: (i) HPB File No. 7414; Petition for Rehearing (March 24, 2014 Order "Order I"); Special Master Appeal (Order 1) Case No. HPSM-14-002; Special Master Appeal (April 22, 2014 Order "Order 2") Case No. HPSM-14-001; Special Master Appeal (October 15, 2014 Order "Order 32") Case No. HPSM-14-004; Petition for Certiorari (Order No. 1) Case No. 15-067 AP; Petition for Certiorari (Order No. 3) Case No. 15- 884 AP; and Petition for Certiorari (Order No. 1 and No. 3) Consolidated in Case No. 15-067 AP; arid (ii) BOA File No. 3695; and Petition for Certiorari, Case No. 14-168 AP (collectively, the "Betsy Ross Project Litigation", and together with the CVS Project Litigation, the "Disputes"); and WHEREAS, the Neighbors and the Respondents desire to resolve, settle, and dispose of any and all claims, suits, appeals and defenses that have been, could have been, or could be asserted (i) by the Neighbors directly or indirectly against or otherwise with respect to the CVS Project or (ii) by the Boos and CVS directly or indirectly against or otherwise with respect to the Betsy Ross Project, as they may be revised pursuant to this Settlement Agreement, including challenges to any City-issued approvals or permits, (iv) resolve all pending appeals of the land use decisions; and (v) to permit the CVS Project and the Betsy Ross Project to move forward to completion, all on and subject to the terms and conditions set forth in the settlement agreement. WHEREAS, the parties wish to avoid the expense, delay, and uncertainty of lengthy litigation and appeals, and agree it is in their respective mutual best interests to resolve their disputes; and WHEREAS, on September 25, 2017, the Mayor and City Commission held a Closed Attorney-Client Session and discussed litigation strategy and settlement; and WHEREAS, pursuant to that discussion and direction, the parties have entered into a tentative settlement, subject to approval by the Mayor and City Commission, which settlement agreement is attached hereto as Exhibit 1. NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND THE CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA: that The Mayor and City Commission hereby approve the settlement between the City and 1500 Ocean Drive Condominium Association, Inc. ("1500"), II Villaggio Condominium Association, 2 Inc. ("II Villaggio"), Ocean Court, LLC, ("Ocean Court"), Jonathan Plutzik, ("Plutzik"), Betsy Ross Owner, LLC, Alfred Berg ("Berg"), (Collectively, "Neighbors"), And Boos Development Group, Inc., ("Boos"), CVS 10346 FL, LLC ("CVS"), and authorize the City Manager and City Attorney to take the necessary and appropriate steps for the implementation thereof; and further authorizing the Mayor and City Clerk to execute any documents and/or agreements, as required to effectuate the terms of the settlement. PASSED and ADOPTED this if day of October, 2017. �' ATTEST: '"� Phili• - , - , ayor . Ra .el Granado, City &1• . 4 \' k.1-0-1 I APPROVED AS TO Lori 1G CORM & LANGUAGE � � , � 0)%� rv, \ , & FOR EXECUTION ;, , . N.// : � �t C `� • H �_7-e1I a- 9 - r - " City Attorney ., 4 Date i 3 Resolutions - C7 H MAM1 BEACH COMMISSION MEMORANDUM TO: Honorable Mayor and Members of the City Commission FROM: Raul J. Aguila, City Attorney DATE: October 18, 2017 SUBJECT A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, APPROVING THE SETTLEMENT BETWEEN THE CITY, 1500 OCEAN DRIVE CONDOMINIUM ASSOCIATION, INC., ("1500"), IL VILLAGGIO CONDOMINIUM ASSOCIATION, INC. ("IL VILLAGGIO"), OCEAN COURT, LLC, ("OCEAN COURT"), JONATHAN PLUTZIK, ("PLUTZIK"), BETSY ROSS OWNER, LLC, ALFRED BERG ("BERG"), (COLLECTIVELY, "NEIGHBORS"), AND BOOS DEVELOPMENT GROUP, INC., ("BOOS"), CVS 10346 FL, LLC ("CVS"), AND AUTHORIZING THE CITY MANAGER AND CITY ATTORNEY TO TAKE THE NECESSARY AND APPROPRIATE STEPS FOR THE IMPLEMENTATION THEREOF; AND FURTHER AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE ANY DOCUMENTS AND/OR AGREEMENTS, AS REQUIRED, TO EFFECTUATE THE TERMS OF THE SETTLEMENT. RECOMMENDATION The Resolution attached approved the settlement of: Boos Development Group, Inc.; CVS 10346 FL, LLC v. Betsy Ross Owner, LLC; Ocean Court, LLC; and City of Miami Beach, Case No.: 2015-000067-AP (01), consolidating Case no: 2015- 000067-AP (01) and 2015-000084-AP (01). Legislative Tracking Office of the City Attorney ATTACHMENTS: Description © Resolution o Settlement Agreement Page 281 of 1633 SETTLEMENT AGREEMENT This SETTLEMENT AGREEMENT ("Agreement") is made this day of 2017, by and between 1500 OCEAN DRIVE CONDOMINIUM ASSOCIATION, INC., a Florida not-for-profit corporation ("1500"), II VILLAGGIO CONDOMINIUM ASSOCIATION, INC., a Florida not-for-profit corporation ("II Villaggio"), OCEAN COURT, LLC, a Florida limited liability company ("Ocean Court"), JONATHAN PLUTZIK, a natural person ("Plutzik"), BETSY ROSS OWNER, LLC, a Florida limited liability company, and ALFRED BERG, a natural person, ("Berg"), (collectively, "Neighbors"), and BOOS DEVELOPMENT GROUP, INC., a Florida corporation ("Boos"), CVS 10346 FL, L.L.C., a Delaware limited liability company ("CVS"), and CITY OF MIAMI BEACH ("City"), a Florida municipal corporation (collectively "Respondents", and all Respondents and Neighbors collectively, the "Parties") who hereby stipulate and agree as follows: RECITALS WHEREAS, 1500 manages and maintains a 114-unit condominium and controls the common elements on that certain parcel of land located in Miami-Dade County, Florida and more particularly described in Exhibit"A" attached hereto (the "1500 Property"); and WHEREAS, II Villaggio manages and maintains a 122-unit condominium and controls the common elements on that certain parcel of land located in Miami-Dade County, Florida and more particularly described in Exhibit"B"attached hereto (the "II Villaggio Property"), and Alfred Berg is a resident of the condominium; and WHEREAS, Betsy Ross Owner, LLC, Ocean Court, LLC and Plutzik are collectively owners and operators of the Betsy Ross Hotel at 1440 Ocean Drive, and more particularly described in Exhibit "C" attached hereto (the "Betsy Ross Property"); and WHEREAS, Boos and CVS obtained City of Miami Beach Historic Preservation Board ("HPB") approval and Board of Adjustment ('BOA") approval of three zoning variances for the development, construction and operation of a CVS store at 1475 Collins Avenue (as further defined below, the "CVS Project"); and WHEREAS, the Neighbors have raised concerns with the CVS Project and have filed two appeals to the circuit court in and for Miami-Dade County (a petition for writ of certiorari: Case No.: 14-112 AP, appealed by Boos and CVS to the Third District Court of Appeal via Case No. 3D15-0315, and an appeal pursuant to section 163.3215, F.S. Case No.: 14-007455-CA01) challenging the issuance of the variances by the BOA (the "CVS Project Litigation"); and WHEREAS,the Betsy Ross Owner, LLC received HPB and BOA approval for an expansion of the Betsy Ross Hotel and the Carlton Hotel (the "Betsy Ross Project"); and WHEREAS, Boos and CVS have raised concerns about the Betsy Ross Project and have filed certain appeals regarding that project: (i)HPB File No. 7414; Petition for Rehearing (March 24,2014 Order"Order 1"); Special Master Appeal (Order 1) Case No. HPSM-14-002; Page 1 of 21 Page 285 of 1633 Special Master Appeal (April 22, 2014 Order"Order 2") Case No. HPSM-14-001; Special Master Appeal (October 15, 2014 Order"Order 32") Case No. HPSM-14-004; Petition for Certiorari (Order No. 1) Case No. 15-067 AP; Petition for Certiorari (Order No. 3) Case No. 15- 884 AP; and Petition for Certiorari (Order No. I and No. 3) Consolidated in Case No. 15-067 AP; and (ii) BOA File No. 3695; and Petition for Certiorari, Case No. 14-168 AP (collectively, the "Betsy Ross Project Litigation", and together with the CVS Project Litigation, the "Disputes"); and WHEREAS, the Neighbors and the Respondents desire to resolve, settle, and dispose of any and all claims, suits, appeals and defenses that have been, could have been, or could be asserted (i) by the Neighbors directly or indirectly against or otherwise with respect to the CVS Project or(ii) by the Boos and CVS directly or indirectly against or otherwise with respect to the Betsy Ross Project, as they may be revised pursuant to this Settlement Agreement, including challenges to any City-issued approvals or permits, and to permit the CVS Project and the Betsy Ross Project to move forward to completion, all on and subject to the terms and conditions set forth herein. NOW, THEREFORE, in consideration of the mutual agreements, undertakings, and representations contained in this Agreement and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the Parties hereto, the Parties hereto agree as follows: 1. The foregoing recitals are true, accurate, and correct and are incorporated herein by this reference. 2. The "CVS Project" is a two-story CVS store not to exceed 17,200 square feet in floor area to be located at the southeast corner of Collins Avenue and 15th Street, as depicted on the plans attached hereto and made a part hereof as Exhibit "D" (the "CVS Project Plans"). The CVS Project (i) includes a loading bay along Collins Avenue,just west of the retail building and with no loading area on or accessed from 15th Street, and (ii) shall otherwise be substantially in accordance with the plans attached hereto as Exhibit"D", unless otherwise modified by approvals of HPB or FDOT as provided herein. 3. The Parties agree as follows: A. Terms Related to the CVS Project. (I) CVS shall submit the CVS Project Plans to the appropriate City department for review and to the appropriate City board for its review and approval. (2) The attached CVS Project Plans include the following: (a) CVS Project design that reflects the design and architecture of the surrounding neighborhood. (b) Sidewalks along the property's Collins Avenue frontage, as depicted on the CVS Project Plans. Page 2 of 21 Page 286 of 1633 (c) Sidewalks along the property's 15th Street frontage, as depicted on the CVS Project Plans. (d) Street Trees along the property's 15th Street and Collins Avenue frontages. To effect this installation of the street trees CVS and the City shall jointly apply for all necessary City and FDOT approvals. CVS and the City shall provide Neighbors with five business day notice of, and the opportunity to attend any meetings with City and FDOT staff and officials. (f) A revised lighting plan for the CVS property that will reduce the impact of the light from the CVS Project on adjacent properties. This lighting plan shall include but not be limited to a combination of up- lighting and down-lighting on the exterior west elevation. No intensive 'white' lighting (or similar intensive lighting) visible from the adjacent public rights of way or the adjacent properties shall be permitted. (g) Entrance to the CVS store shall be at the corner of Collins Avenue and 15th Street. (3) Boos and CVS shall: (a) Prepare and provide to Neighbors no less than 20 days before HPB hearing, a preliminary construction mitigation plan that would minimize disruption to Collins Avenue, 15th Street and Ocean Drive addressing in specific detail the period between December 1 to May 1. Such plan shall be subject to reasonable modification based on feedback from the general contractor for the CVS Project prior to issuance of the building permit, provided that all changes must be approved by W. Tucker Gibbs,as representative of the Neighbors, which approval shall not be unreasonably withheld, conditioned or delayed. (b) Ensure that the Collins Avenue loading zone shall be used as the sole location for all CVS vehicles loading and unloading for, and making deliveries to, the CVS store. Independent vendors will be informed that the use of the Collins Avenue loading zone is required and will be directed to not park along 15th Street. CVS shall post signage on the premises directing vendors to not park along 15th Street. In addition, CVS shall fund and the City shall install street signs: • On Collins Avenue along the CVS property showing that loading is limited to the hours of 7am to 12pm daily except for Sundays and recognized state and federal holidays. Page 3 of 21 Page 287 of 1633 • On 15`'' Street along the CVS property showing that loading is not permitted. (c) Establish and provide Neighbors with a copy of the notice to CVS vendors instructing them to use the Collins Avenue loading zone and not to park along 15th Street or use 15`h Street for any loading/unloading activities. This shall include the limitation on the use of the loading zone to the period from 7am to 12pm daily except Sunday and recognized state and federal holidays. (d) Prepare and present to Neighbors and City planning department staff a traffic and pedestrian impact study ("impact study") prior to the issuance of the first certificate of occupancy. The impact study shall show the number of all truck deliveries per day and per week, the size of the trucks, the number of expected store visitors, estimate for the number of pedestrians using adjacent sidewalks and street crossings per hour and per day. In addition, the impact study shall include an analysis of"drop-off" and loading/unloading traffic and its impacts on traffic on Collins Avenue, 15th Street and Ocean Drive. The impact study shall include employee parking plan that shows number of employees, location of employee parking and the impacts of that parking on pedestrians and vehicular traffic. (e) As a result of the impact study, prepare and present to City planning department staff a traffic and pedestrian impact mitigation plan which would set forth possible changes including but not limited to traffic signal timing, and additional turn signals that do not conflict with this Agreement. (f) Ensure that for the seven (7) years following the issuance of the certificate of occupancy, that the CVS store not include any medical clinic (i.e., Minute Clinic), whether staffed by a doctor, nurse practitioner, physician assistant or other health care professional, provided that the foregoing shall not limit standard products and services offered by CVS from time to time in the pharmacy area of its stores (i.e., vaccinations). After the seven-year period, CVS shall notify the Neighbors no sooner than one hundred and twenty (120) days prior to the introduction of any medical clinic in the CVS store. (g) Insure that beer, wine and liquor sales will not include individual beer bottles, single service wine bottles or travel liquor bottles. In no event shall CVS, during its period of ownership or lease of the CVS Project site, permit a package liquor store on the CVS Project site. Neighbors hereby reserve their rights to object to a package liquor store on the CVS Project site. Page 4 of 21 Page 288 of 1633 (h) Present the submittal plans to the planning department no later than January 15, 2018. (i) Provide Neighbors with five (5) business days' notice of, and the opportunity to attend and comment through one representative at, all of its meetings with City staff and officials as well as FDOT and other governmental entities regarding the design and construction and any changes to the loading bay on Collins Avenue and the sidewalks on Collins Avenue and 15th Street. (4) Neighbors (individually and collectively) shall: (a) Cooperate with CVS at any meetings with FDOT to seek and obtain FDOT's approval of a loading bay along Collins Avenue, as depicted in the CVS Project Plans. • The Parties acknowledge that the CVS Project and CVS Project Plans remain subject to, and may be modified in connection with,the FDOT approval process. The CVS Project and the CVS Project Plans may be revised to incorporate any modifications required as part of such process provided the same (i) are acceptable to CVS, in its reasonable discretion, (ii) do not materially impact the location of the loading zone along Collins Avenue as shown on CVS Project Plans, and (iii) do not directly or indirectly cause the addition of any loading zone or area on or accessed from 15th Street. • In the event that FDOT requires a wider loading zone on Collins Avenue,there shall be permitted a Collins Avenue sidewalk reduction reflecting the FDOT requirement up to one foot in width from the measurements for the Collins Avenue sidewalk set forth in the CVS Project Plans. The 15th Street sidewalk width shall not be affected by any changes to the Collins Avenue loading zone. All sidewalk areas shall be clear of any obstruction including planters, ramps and steps, except as may be shown on the CVS Project Plans. (b) Support the CVS Project as set forth herein and shall not file any additional appeals of, or cause to delay or infringe, the CVS Project, or pursue any other formal administrative or judicial actions adverse to the CVS Project, provided that: • Boos and CVS strongly support and advocate, directly or through legal representative(s), in favor of the CVS Project Page 5 of 21 Page 289 of 1633 Plans before the HPB and all governmental entities reviewing the CVS Project; • The HPB makes no substantial changes to the CVS Project Plans, including the Collins Avenue and 15`h Street sidewalk widths as set forth in the CVS Project Plans; and • The HPB (i) makes no material changes to the location of the loading/unloading area on Collins Avenue and (ii) does not approve any changes to the CVS Project Plans that show any loading/unloading on, or access to loading/unloading from 15`1' Street. Said support as set forth above shall be stated by a representative of the Neighbors at any public hearings before the HPB or any other City board or other governmental authority with jurisdiction over the CVS Project. Neighbors shall not seek or encourage a third party to file an objection, appeal or oppose,the CVS Project as set forth herein. The Parties acknowledge that any requests for approval necessitated by this Agreement, whether by the City or its boards or staff, acting in its/their governmental capacity, are subject to the independent discretion of the City and/or such boards and staff, which are not agreeing in advance to any particular outcome on such applications for approval. If Boos, CVS or any successor in interest violates the terms of this Agreement, the Neighbors, shall retain their rights, without limitation, to take such actions at law as may be permissible. (5) Should a variance(s) necessary for the CVS Project Plans be denied by the HPB or successfully challenged, the Neighbors agree that CVS may modify the CVS Project Plans to provide for a loading bay on the south side of CVS site with access along Collins Avenue should FDOT approve the necessary curb cut at that location. All parties will treat this loading space modification as though it was in the original CVS Project Plans and the Neighbors will support those modified plans as long as those plans do not make substantial changes to the sidewalk widths shown on the CVS Project Plans, and the plans show no loading/unloading areas on or accessed from 15`h Street. (6) Should the HPB deny approval of the CVS Project Plans, once said denial is final, and Boos and/or CVS decide not to proceed under plans modified in accordance with this Agreement, Boos, CVS and the Neighbors shall be released from all obligations under this Agreement with the exception of those obligations in Sections 3.B(1)(a), 3.B.(2), 3.B.(8), and 3.B.(9) of this Agreement. Page 6 of 21 Page 290 of 1633 (7) Once Betsy Ross Property receives a Certificate of Occupancy, the obligation of Boos and CVS to Betsy Ross Property's owners and operators are complete. B. General Terms. (1) Dismissal of Litigation. (a) Within ten days of the execution of this Agreement Boos and CVS agree to dismiss with prejudice all claims, suits and appeals against the Betsy Ross Project subject to the provisions in paragraph 3.B.(8). Additionally, Boos and CVS agree not to file any other challenges, claims, suits or appeals, directly or indirectly, against or otherwise with respect to the Betsy Ross Project so long as Neighbors comply with the terms of this Settlement Agreement. (b). Once all claims, suits and appeals against the Betsy Ross Project are dismissed and the HPB approvals as set forth in sections 3.A. 2 and 3 herein are final and non-appealable, within ten (10) days of the foregoing date, the Neighbors agree to dismiss all remaining claims, suits and appeals against the CVS Project. Additionally, the Neighbors agree not to file any other challenges, claims, suits or appeals, directly or indirectly, against or otherwise with respect to the CVS Project so long as all Boos and CVS comply with the terms of this Settlement Agreement (2) Except for the rights and obligations set forth in this Agreement and effective upon the full execution and delivery of this Agreement, dismissal of claims, and the final approval of the CVS Project, 1)the Neighbors, and 2) CVS and Boos (collectively), and 3)the City, hereby remise, acquit, satisfy, and forever discharge each other and their employees, agents, City of Miami Beach elected officials, property managers and all affiliated persons and entities from any and all manner of action and actions, cause and causes of action, suits, debts, dues, and sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements,promises, damages,judgments, execution, claims and demands whatsoever, in law or in equity, which either party ever had, now has or hereafter can, shall or may have against the other for, upon or by reason of any matter, cause or thing whatsoever arising from or connected with the Disputes or any other actions or omissions prior to the date hereof with respect to the CVS Project or the Betsy Ross Project. (3) The Parties hereto agree that they shall expeditiously take such actions and provide such documents and instruments as may be reasonably necessary to effectuate the purposes of this Agreement. Page 7 of 21 Page 291 of 1633 (4) Each Party hereto acknowledges that this Agreement is a compromise resolution of disputed claims and agrees that it shall never be treated or used as an admission or evidence of liability or wrongdoing against any party hereto for any purpose whatsoever; provided, however, that this Agreement may be admissible in any action or proceeding to enforce its terms. Each Party hereto denies any liability to the other and any wrongdoing and acknowledges that this settlement is based solely on their desire to resolve all disputes and avoid any further costs of litigation. (5) The Parties represent and warrant that they have executed this Agreement freely and voluntarily after having had an opportunity to consult with their respective attorneys concerning their rights and obligations hereunder. (6) This Agreement shall be deemed drafted by all Parties and there shall be no presumption against any Party relating to the drafting of said Agreement and the language used herein. The obligations and duties of the Parties are as provided for in each provision of this Agreement, notwithstanding that certain sections are identified as creating obligations for specific Parties. (7) The laws of the State of Florida shall govern this Agreement and its enforcement. Venue for any action or proceeding brought under this Agreement shall be in Miami-Dade County. All parties waive jurisdiction in the Federal Courts, including diversity jurisdiction, if applicable. (8) CVS shall reimburse Neighbors for certain costs and legal fees incurred in connection with the Disputes in the amount of$330,000 upon full execution and delivery of this Agreement. (9) In the event of any dispute under this Agreement requiring litigation to resolve, the prevailing party shall be entitled to an award of costs and reasonable attorney's fees incurred as a result of the dispute, including suit, pre-suit and appellate costs and attorney's fees in any legal, equitable or administrative proceeding relating to the dispute (including without limitation proceedings to enforce this Agreement). (10) Except as otherwise expressly set forth herein, including in subsections (8) and (9) above, each Party shall bear its own fees and costs in connection with this Agreement,the Disputes, and any other pre-Agreement litigation, projects, and disputes. (I I) The Parties signing this Agreement represent and warrant that they have full and complete legal and binding authority to enter into this Agreement. (12) This Agreement and all obligations hereunder shall be binding upon and shall inure to the benefit of all the Parties and their respective heirs, successors, and/or assigns as a covenant running with the land so long as CVS owns or leases the land. This Agreement represents the entire Page 8 of 21 Page 292 of 1633 agreement of the Parties and shall not be modified except by a writing signed by all of the Parties. Except as otherwise expressly provided herein, the only beneficiaries of this Agreement are the named Parties and their successors, assigns, subsidiaries, and affiliates and no other persons. The Parties agree that this Agreement shall not be recorded in the public records. (13) Any and all notices shall be in writing and shall be sent via Certified Mail. Hand Delivery or overnight delivery as follows: If to 11 Villaggio: Lewis Cohen, President II Villaggio Condominium Association, Inc. 1455 Ocean Drive, Unit 1404 Miami Beach, FL 33139 With a copy to: W. Tucker Gibbs, Esq. P.O. Box 331050 Miami, FL 33133 If to 1500: Albert Lepage President 1500 Ocean Drive Condominium Association, Inc. 1500 Ocean Drive Miami Beach, FL 33139 With a copy to: W. Tucker Gibbs, Esq. P.O. Box 331050 Miami, FL 33133 If to Alfred Berg: Alfred Berg 1455 Ocean Drive Miami Beach, FL 33139 With a copy to: W. Tucker Gibbs, Esq. P.O. Box 331050 Miami, FL 33133 If to Betsy Ross Owner, LLC: Jonathan Plutzik Page 9 of 21 Page 293 of 1633 Betsy Ross Owner, LLC. 1440 Ocean Drive Miami Beach, FL 33139 With a copy to: David Custin 6401 SW 113th Place Miami, Florida 33173 If to Boos: Paul Tremblay, Regional Director, South Florida Boos Development Group, Inc. 5789 NW 151st Street, Suite B Miami Lakes, FL 33014 With a copy to: Michael W. Larkin, Esq. Bercow Radell & Fernandez. P.A. 200 South Biscayne Boulevard Suite 850 Miami, Florida 33131 And Kent H. Robbins, Esq. Law Offices of Kent Harrison Robbins 242 Northeast 27`h Street Miami, Florida 33137 If to CVS: c/o CVS Pharmacy, Inc. One CVS Drive(Mail Code: 1160) Woonsocket, RI 02895 Attention: Christopher Mercer, Senior Legal Counsel and Michael Meo, Senior Legal Counsel With a copy to: Michael W. Larkin, Esq. Bercow Radell & Fernandez, P.A. 200 South Biscayne Boulevard Suite 850 Miami, Florida 33131 And: Kent H. Robbins, Esq. Page 10 of 21 Page 294 of 1633 Law Offices of Kent Harrison Robbins 242 Northeast 27th Street Miami, Florida 33137 If to City: Jimmy Morales, City Manager City of Miami Beach 1700 Convention Center Drive, 4th Floor Miami Beach, Florida 33139 With a copy to: Raul Aguila, City Attorney City of Miami Beach, City Attorney's Office 1700 Convention Center Drive, 4th Floor Miami Beach, Florida 33139 Notices delivered by a nationally recognized overnight courier service such as Federal Express shall be effective on the date received. Notices sent by facsimile or email shall be effective on the date transmitted and received, provided that receipt occurs before 5:00 p.m. Eastern Standard Time on a business day. (14) This Agreement may be executed in counterpart originals with the same force and effect as if fully and simultaneously executed as a single original document. A facsimile or electronic (PDF) copy of this Agreement and any signatures thereon shall be considered for all purposes as originals. (15) Time is of the essence with respect to each provision contained in this Agreement. (16) The Parties agree that irreparable damage may occur and that the Parties may not have any adequate remedy at law in the event that any of the provisions of this Agreement are not performed in accordance with its specific terms or are otherwise breached. It is accordingly agreed that the Parties will be entitled to an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the provisions of this Agreement, this being in addition to any other remedy to which they are entitled at law or in equity. The Parties agree and stipulate that no injunction bond shall be shall be required as a result of an injunction sought by any Party hereunder. (17) Unless the context clearly requires otherwise, (i) "or" is not exclusive, and (ii) "includes" and "including" are not limiting. Page 11 of 21 Page 295 of 1633 IN WITNESS WHEREOF,the parties have caused this Agreement to be duly entered into and signed as of the date set forth above. 1500 CO till NI 'OCIATION,INC., Witnesses: `"` '` By: i Print Name bvi i45,„„ i w �' 11.y.:4.444;- Print 1.v 4SA;- Print Name 1A,,41,M,st{KtN STATE OF FLORIDA ) COUNTY OF MIAMI-DADE ) ;4,17 The foregoing instrument was acknowledged before me this el day ofJvly 2.9(6 by (4dfi jAff.,as President of 1500 CONDOMINIUM ASSOCIATION, INC., freely and voluntarily on behalf of said corporation.This person is personally known to me or who produced as identification. NOTARY PUBLIC,State of Florida at Large Print Name 1:>nx Y+y--1 My commission expires: I o113,c�d✓O Ally' !/ Dorothy E.tannery tCommission # GG38375 As ' ?► Expiis October 13,2020 �, �., 4+'. Bonded thru Aaron Notary ,yC>2a► �- Page 12 of 21 Page 296 of 1633 IL VILLAGGIO CONDOMINIUM. ASSOCIATION,INC., Witnesses: ✓1By: . On /1444014Print Name '.Lt% 1 iam::O1%�S Print N•me STATE OF FLORIDA ) COUNTY OF MIAMI-DADE ) The foregoing in3trument was acknowledged before me this 31 day of 3vi Eby ( -z u�,M," Rts President of IL VILLAGGIO CONDOMINIUM ASSOCIATION,INC.,freely and voluntarily on behalf of said corporation.This person is personally known to me imuyolio produced• as identification. NOTARY PUBLIC,Statsa Florida at Print Name na .i-ar1h. My commission a es: • Jerry Jots ON Commission/ROOO2$. Expires December 3,20t9 Bonded Otru Auon Nobly Page 13 of 21 Page 297 of 1633 BET$ �.rr OWNER,LLC:, Witnesses: �I► 11-"Weliblie......._ Print Name U j�, �Q�►Te�.. Print Name STATE OF FLORIDA ) COUNTY OF MIAMI-DADE ) The foregoing instrument was acknowledged before me this 25 day oft 201 by pY +ars 11U�2ig.as President of BETSY ROSS„OWNER,LLC.freely and voluntarily on behalf of said corporation.This person is ersonall kno to me or who produced as i entification. NOTARY PUBLIC, State of Florida at Large 46:16£A filoa Thar*,E.Albert Print Name —cc-,p,rick AVaeCt NOTARY PUBLIC My commission expires: -1'tg t 2 t2t STATE OF FLORIDA Comm#GG012888 • Expires 7/18/2020 • Page 14 of 21 Page 298 of 1633 1 -.......11111111111.11111 iii?graliON1 et; Witnesses: 1111L1446..,111/4" anlZli Print me a Acardo £ 1fo� Print Name STATE OF FLORIDA ) COUNTY OF MIAMI-DADE ) 10/7 The foregoing instrument was acknowledged before me this 2 I day of j o f j 1L 6 by Sjdiot 13t 111)32+14,as President of OCEAN COURT,LLC.freely and voluntarily 6n behalf of said corporation.This person is personally known to me or who produced as identification. NOTARY PUBLIC,State of Florida at Large Thema E.Albert Print Name—UsN& E. ,AkAoekr ilk- NOTARY PUBLIC My ommission expires:--I v),c524)STATE OF FLORIDA Expires 7/18/2020 Page 15 of 21 Page 299 of 1633 ' Witnesses: By: 1 Print Name 11 AOCdif" IP% Print Name STATE OF FLORIDA ) COUNTY OF MIAMI-BADE ) The foregoing instrument was acknowledged before me this 2.S day of -l._20 by JONATHAN PLUTZIK,freely and voluntarily.This person is •rso,_ I y o to me or who produced as identification. NOTARY PUBLIC,State of Florida at Large . Thalia E.Albert Print Name -TelstteVel E. )..114)04 t�� "Iii; NOTARY F"U9uC My commission expires: 1 i 24541N•" : STATE OF FLORIDA `�'"Carnr#GG012888 Expires 7/18/2020 $ Page 16 of 21 Page 300 of 1633 ALFRED BERG, W• e s s:\' � t ,' By: l'1 f'Y rk & '•.• ame ---e &e/1/440. • �. _ irS Print Nam- STATE OF FL-8ik/Y .i.-,f, COUNTY OF I037441;0=1;90E 5y &- C/ / The foregoing instrument was acknowledged before me this-5° day of:1-11)/0by ALFRED BERG,freely and voluntarily.This person is personally known to me or who produced / 5 /,%' V,4f--- as identification. ��// - NOTARY PUBLIC, S Print Name i' -',"/.4-"""]) /°YC 77/� My commission expires: LEONARD J. PUGA C}r Notary No. 02PU4654942 State of New York Qualified in Nassau County Commission Expires March 30,_..,,W1 !9 Page 17 of 21 Page 301 of 1633 • ; ,•s 1�LOFM ' 9 UP,INC., W11 By: Alla ,[7./i.. w - ' i Robert B.Boos President&COO Maureen Wolfe SIMS OF FLORIDA ) COUNTY OF MIAMI DADS ) Tlac#u+egoing Instrument was acknowledged beltore me this Z day of�l6 by 141,041 Q Rev*President ofBOOS DBVF•F f GROUP,INC» sled voluntarill en behalf of said ooeporation.This person Is ly imowa or who induced as identification. NOTARY PUBLIC,Sate of Flor ida at Large Print Nemo Andra DelMon'Ico My commission expiate:444_ cfjpdOicA._ 4'"" ANDRADEWONICO N -Conunissbn#GG089658 r sFebruary5,2021 4 Bonded rtes Thrif Wax,80045.7019 Page 18 of 21 •, Page 302 of 1633 CVS 10346 a! . 1( e. • By: / • at rte � Clay Wilson tea n0�14)11/4 r RVP, Real Estate PrintName STATE OF P-ORlittA box•'Yt�. COUNTY OINMI*MMIABE fon n cicnowledged before me this o 20H by l igig as� K.�►' of G S 10346 FL,LLC,freely and Vdluatarily on behalf of OPO tact This person is personally known to me or who produced eLar-as identification. Priakwero- NOTARY PUBLIC,State of-Merida at Large Print Name My commission expires Donna McDaniel • My Commission Expires September 25,2018 ri Page 19 of 21 • Page 303 of 1633.. CITY OF MIAMI BEACH, Witnesses: By: Print Name Print Name STATE OF FLORIDA ) COUNTY OF MIAMI-DADE ) The foregoing instrument was acknowledged before me this day of 20lisby ,as of the City of Miami Beach.,freely and voluntarily on behalf of said municipality.This person is personally known to me or who produced as identification. NOTARY PUBLIC,State of Florida at Large Print Name My commission expires: APPROVED AS TO FORM & LANGUAGE & FO EXECUTION /AVC ty Attorney Dote Page 20 of 21 Page 304 of 1633 This Page Intentionally Left Blank Page 21 of 21 Page 305 of 1633 EXHIBIT "A" Page 306 of 1633 LEGAL DESCRIPTION 1500 Ocean Drive Condominium (Polio No. 02-3234-118-0001) ALTON BEACH 1ST SUB PB 2-77 PORTIONS OF LOTS 1 THRU 4 BLK 56 & RIP RTS BLK 56 ADJ TO E LINE OF BLK 56 & PORT LYING EAST & ADJACENT WEST OF EROSION LINE PER PB 105-62. Page 307 of 1633 EXHIBIT "B" Page 308 of 1633 LEGAL DESRIPTION I1 Villaggio on South Beach Condominium (Folio No. 02-3234-115-0001) HARRISON & HAYES SUB PB 9-73. PORTIONS OF LOTS 1 THRU 4 & LOTS 1 & 2 E OF SAME EXT AS DESC IN OR BOOK 18307-1424 & PORTION LYING EAST & ADJACENT WEST OF EROSION LINE PER PB 105-62. • Page 309 of 1633 EXHIBIT "C" Page 310 of 1633 LEGAL DESCRIPTION The Betsy: (Folio No. 02-3234-008-0581) OCEAN BEACH ADDN NO 2 PB 2-56, LOT 1 LESS NLY 13FT & ALL LOT 2 BLK 19. Page 311 of 1633 EXHIBIT "D" Page 312 of 1633 0. v o Vi toi E as u wrtiia0 d Ira 4 R'if l g U a 411 ill tr°4:17^44 i -� IIPligi �((ittlit U1111111 °; , 0„,..7=-:.((fts# It 1, tgiX111 i/N. � ��� lyli hilii �Pio P zi L. l t =J • riq'srte ,rvii11rot' Al-loin t t m I: i k_ I : ,46'66 i ' i, ifs .. ' ' r , II./'�,,,,,,o..... —� 1 i • I �tll�t� t 0 r •1 111 j' 1 "�" . >s, `� 0 t 1; ; t, z o ji 4 ( n'it., U rn ---- 1 il i Q se— crop 6i I Iw I � w 22 , C 118 if)(..ii Z 1,:. 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'- r- 3_b177O0 ►Sy1414 11141jr.i s'_+>"'""".+ ti r MY�f+14 is -00.OAS 7!'•f w**, MMwMI M6 vrigaWhe Haub'..•__.is M a..J ya-,Mt,CwAM'cook.aw Mrp EXHIBIT "E" Page 314 of 1633 S f2 � .�41 ^'YI�i y, I y4 �" a 4 cs ' } MhY `t pt',, 3 f ((^N- jL.iM �s x k'}�` K' ]S' " /, .. t�4rj. .. y;, ' rr rit. ... a• + > }� s .,,, z a . yhF r;M* d yYt4 xWMn J,� Vc d,A1 f <'f�i.46-05'"}it itP<i' 2M • ,,,„ 2.' 9"a1' �n5�sti3t� r,T, v s- t fY ,y� Ft+ � , §'�' f u t k,r�}� c r ▪ S' Ft• }',i kh{r v�,a,..A1,� i y<' 'i ',f - ))Ri'L:`n'�X,r F + • N'eyl�qJ _'''$. ,yF;t o f 4 '4K `.µ r�.ti • i .e.4/44.'i.'••-..;;;;J:','.::.•-::',!.>".:k.: '�B.' t�t r ,f . • • StjpG�, i I 'r : p nt^.etSz �'��o. rx • x t x , 7 £� tr''..t 7.. vv`tf s a•t,"tt'-',.4„,..i.;.,;:,1 At �J,�k"j'' y5• s " -....N.+.. �• r • a t . y.,M r ly ^t`4 S kfr • 'M a." t,l ft � y, +A `` .`-,•"'.....-';',•;.:.•."--';'`',e4,,-%..F ' if e. & . y � y • o P ; c a+ 1 YS�ia, a. �, f, m,.. nPi, Page 315 of 1633 `" °' . k'''" 'fiY 1 F� -..'tom .f Y '' ._ yr 1 t�J(�y1'X S 5g _y, 1.0 ,Is./rage r&,,�x'< 3 ,, .,1?--.., • ;i . s a,� 'R.-,....,4„...14:3,_„A r fx_ ++}} r i ` k die ak.. � a 4 j r tPt '.4 4. a , { �� • ` arra -44PirVa.,;74 11 - 4.., '4 } {I:� Py 1.a I }. ; a 0 .x, rr ' ` di ii L i.Y r.ou+y 4v. ;--,:-7-,,Tr., :2 . v7 "t 4 h` Ms f Wer v.., n .... �Sq cV.� ff,x". tP a Y:t t.T R`i. 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